News of the World phone hacking prosecution can proceed

The Court of Appeal has ruled today that criminal prosecutions against five former News of the World editors and journalists for alleged conspiracy to hack the mobile voicemail messages of celebrities and other persons in the news can continue under section 1 of the Regulation of Investigatory Powers Act 2000 (“RIPA”).

The defendants had sought to dismiss the prosecution on the ground that the section 1 offence is not committed when a voicemail message is hacked after it has already been accessed by its intended recipient. They argued, inter alia, that voicemail messages that had already been accessed fall outside of the privacy protection for electronic communications conferred by Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and that the UK is not entitled to confer privacy protection going beyond what is envisaged in that harmonising measure.

The Crown maintained that (i) properly interpreted, Directive 2002/58/EC requires the UK to protect the privacy of mobile voicemail messages beyond the point of first access and throughout the time that they remain stored on a public telecommunications network, but that (ii) in any event, the Directive is only a minimum harmonisation measure, which allows EU Member States to confer greater privacy protection than provided for in the Directive.

The Court of Appeal accepted the Crown’s submission that Directive 2002/58/EC is a minimum harmonisation measure and, therefore, allowed the prosecutions to continue. As it was unnecessary to do so, the Court of Appeal declined to decide the question of whether the Directive itself requires Member States to protect the privacy of voicemail messages stored on the electronic communications network.

Click here to read the full News of the World – Edmondson Judgment

Daniel Beard QC and Ligia Osepciu acted for the Crown, assisting criminal law counsel, Andrew Edis QC and Rebecca Chalkley, with submissions to the Court of Appeal on the European law issues.