Monday, 19 November 2012

Phone Hacking Charges: What do we need to prove?

It’s been widely reported that eight people related to News International are facing charges relating to the phone hacking scandal. This post details what the prosecution will have to prove to secure a conviction. The charges are for conspiracy to commit an offence under section one of the Regulation of Investigatory Powers Act 2000, regarding ‘unlawful interception of communications’.

For a defendant to be convicted, they will need to be:
1.       A person
2.       Who agreed
3.       With another person to
4.       Intentionally and
5.       Without lawful authority
6.       Intercept
7.       ,In the UK,
8.       A communication
9.       Made by a private telecommunication system
10.   In the course of its transmission
11.   Without having the right to control the operation or the use of the system; and
12.   Without consent to make the interception

The first three tests are the ‘conspiracy’ requirements. By the Criminal Law Act 1977, a person guilty of conspiracy to commit crime X is liable to be punished as harshly as a person who actually committed crime X. A conviction here could result in a prison sentence of up to two years.
Crib sheets like these are useful things. They let you see where argument in court really happens. No one will argue in this case that they aren’t a person, aren’t in the UK, or that a victim asked them to tap phones. I imagine some or all of the defendants will argue that they had nothing to do with phone tapping, that it happened where they were working but they didn’t know about it and weren’t involved.

It’s interesting that the prosecutors have gone for the ‘inchoate’ offence of conspiracy. Inchoate offences are the step behind the actual commission of an offence. Attempted murder or conspiracy to defraud. The attraction for a prosecutor is that you don’t need to show that the thing happened. Here, the actual phone tapping will be excellent evidence that the defendants conspired to do it, but prosecutors don’t need to show that Rebekah Brooks sat down one day and hacked phones.

Inchoate offences are interesting because it makes us wonder about why things are bad. Attempted murder can result in the same sentence as murder, because why should an incompetent or unlucky assailant get off lightly? But, the reality is, a conspirator need not necessarily have caused any harm. When we decide what crimes are, should we be more concerned with harm caused or the intrinsic naughtiness of an action? If one pushes the boundaries of conspiracy too far, you can end  in the realms of fantasists. Which is exactly what this policeman is arguing – he says he never actually intended to do the thing (my step 2). 

Saturday, 10 November 2012

Unfair or Unread Standard Terms

I’ve not long moved into a flat. To get to stay in the flat, I signed a lease agreement. Because I’m a man who likes some law, I read my lease. One of the terms was that I have to regularly iron my net curtains for the duration of my stay.

I doubt very much that anyone will notice if I do, or do not, iron the net curtains. In fact, there are no net curtains. Or indeed curtains. So I’m almost certain no one will mind that I don’t iron the non-net not-curtains. The terms in the lease were standard terms, used by our estate agent, and likely others, when they rent out residential property for short periods to normal, average people.

These standard term agreements abound. You buy a plane ticket, update iTunes, sign up to phone contracts, change bank accounts, and all the time you’re ticking boxes or signing forms saying you agree to terms and conditions. And you’ve not read them. Easyjet have tickets, I have money, and I can’t negotiate with them. Their terms will have to do, and so I’ll tick the box.

There is statutory protection for us little Droogs when dealing with Fyodor Ltd’s standard terms. Landlord and tenant law is a peculiar area that I won’t delve into here. But the main protection for consumers dealing on standard terms with companies come from two pieces of legislation.

The Unfair Contract Terms Act deals with clauses that exclude or restrict liability under the contract, but applies to all contracts. The Unfair Terms in Consumer Contracts Regulation deals only with standard form consumer contracts, but with all types of clauses in them. If a clause is unfair, then it doesn't bind the consumer. The UTCCR can’t be used to challenge clauses dealing with the price in the contract, or the key subject matter. That why the (controversial) banks charges case in failed[1]. The charges on letters sent by banks form part of the price you pay for their services.

But I’d like to think that another bit of law could apply. When you sign a contract it is immaterial if you’ve read it[2]. In cases where there is no signature, then terms must be reasonably brought to the attention of the party accepting those terms[3]. But there is doctrine of ‘non est factum’. It allows those who are faultlessly unable to read a document from being bound to its terms by their signature. Traditionally, that’s blindness and illness. Further, the key case of Saunders[4] says that the doctrine would only be available to such a person when they were held to a contract radically different from that which they thought they were entering into, and would not be available to a careless person. So the capable but lazy man who misses the small point in the standard terms but signs anyway decidedly cannot plea non est factum[5].

I can’t help but think that the old cases lay down principles that apply at a very different time. Now, it is simply not plausible that anyone (including the Supreme Court Justices) read standard terms every time they book a flight. Are terms buried in reams of small print reasonably brought to our attention before we tick the box? Should the principle behind non est factum apply? I think there is, therefore, an argument to say you should only be taken to agree to standard terms that you could have realistically actually read.

It’s hard to say how big an issue this is. It’s not like Dostoevsky Ltd.’s terms give them an interest in your house, or permission to enslave your first-born. And unfair terms law prevents them introducing too onerous charges and exclusions. But no obligations should be imposed on anyone lightly. And contract law is generally about the agreement of intentions. So why should Mr Droog be bound by stuff he could not reasonably be expected to put his mind to?

[1] [2010] 1 A.C. 696
[2] L'Estrange v F Graucob Ltd [1934] 2 KB 394
[3] Parker v South Eastern Railway Company [1877] 2 CPD 416
[4] [1971] A.C. 1004
[5] Non est factum means not my deed.