Examination of Witnesses (Questions 40
- 52)
TUESDAY 6 MARCH 2007
MR RICHARD
THOMAS AND
MR MICK
GORRILL
Q40 Chairman: I understand that it
is a breach of the law not just for the person who illegally accesses
the database, it is also a breach of the law by the person who
commissions them to do so. If there was evidence that journalists
had paid these people to access databases illegally, they themselves
would be breaking the law. Did you investigate that?
Mr Thomas: Yes. The offence is
cast in terms of obtaining, disclosing and procuring, and I think
it is the procuring element at which your question is directed.
I think your question implies: why did we go for the investigators
and not the journalists? We prosecuted the investigators in the
first instance because they were the obvious culprits. We had
hard documentary evidence of what they had done, and, indeed,
that led to a guilty finding. We were going to wait to see what
the outcome of that case had been before taking any further action.
When the conditional discharges were imposed by the courts, we
had advice from counsel that it would not be in the public interest
for us to proceed with further prosecutions. We had some other
prosecutions of our own against those same private detectives
and then there was a possibility of taking action against journalists,
but we had clear advice from counsel that we could not and should
not proceed any further. I should also make the wider point that
the evidence was very strong against the private detectives. If
we had gone down the road of prosecuting any journalists, I fully
recognise that we would have had to produce the evidence for a
court of the nature and the extent of their involvement. We did
have, and we do have still, the statements, the bank statements,
the invoices—some of these well-known proprietors were including
information such as "payment for confidential information",
payment for "blagging" in some cases—so there
was what I might call hard prima facie evidence. But, equally,
to bring a prosecution for the offence of procuring is never going
to be that easy. I would not disguise that from anybody. In that
particular case, we were unable to proceed any further with legal
action. But, as I said at the beginning of my session this morning,
the disappointment and frustration we had at the courts not taking
this seriously enough we thought argued the case for a much stronger
penalty to be there as a deterrent. I am very keen to stress that
it is the deterrent effect which is important.
Q41 Chairman: Could I press you on
that, because you are suggesting to us that you did have evidence
which might well have been of sufficient quality to enable a prosecution
but you did not proceed because you were advised it might be against
the public interest. Why should it be against the public interest?
Mr Thomas: Because it would be
essentially a waste of time and effort for my organisation. But,
also, if we were to go to the courts—it would be back to
the magistrates' court—and bring prosecutions, we would
have to decide which of the journalists to prosecute—would
we go for the whole lot or some?—and the strong advice from
our counsel was that we should not and could not proceed with
such prosecutions. It would be attracting severe criticism within
the court system if we were to go any further.
Q42 Chairman: Do you not accept that
in your case that there is a widespread industry of illegally
buying and selling information, and that journalists are one of
the main perpetrators of this, is undermined if, when you come
across all this evidence, no prosecutions follow?
Mr Thomas: With respect, prosecution
did follow.
Q43 Chairman: But not of journalists.
Mr Thomas: We have also documented
in the back of our report many other cases where over the last
five or six years we have taken cases to court, all of which ended
up with very, very low penalties indeed, and I think we really
felt that this is a serious matter but it is not recognised with
sufficient seriousness on the face of the law and the courts themselves
cannot take it more seriously. Even since we have published our
report, there are now signs that the courts are beginning to impose
higher fines, and in one case a community service order against
the private detective concerned, so already the penalties are
beginning to get more serious.
Q44 Chairman: Although you did not
prosecute, did you go to any of the editors of the journalists
concerned and say, "We are not in the public interest going
to proceed with a criminal prosecution but you should know we
have come across evidence that your journalist appears to be breaking
the law and under the self-regulatory system I would expect you
to do something about it"?
Mr Thomas: Chairman, I went to
the Press Complaints Commission in November 2003. I had the first
of a number of meetings with Sir Christopher Meyer in November
2003 and I said, "These cases are in the pipeline at the
moment" and I outlined broadly what was involved. I wanted
him to understand what the implications of this might be and I
wanted the Press Complaints Commission to have the opportunity
to decide what would be an appropriate response. That did lead
to a guidance note being published by the Press Complaints Commission.
That was a useful step but I also have to say that I was a little
disappointed that there was not a more strident denunciation of
the activity by the Press Complaints Commission.
Q45 Chairman: As far as you know,
no action was taken to follow up any of the specific cases which
you had uncovered.
Mr Thomas: Not as far as I know.
Q46 Paul Farrelly: If I were to name
four different types of person: a policeman, someone working for
a statutory agency, a private detective or a journalist, where,
in your experience, would you rank those four people in terms
of misuse of the law on personal information? Who would be the
worst culprit?
Mr Thomas: I think you are drawing
me a bit beyond my statutory functions but I would have to say,
on the evidence we have seen and the reason why we have targeted
them, the middle men, the private investigators, are the ones
who we see at the heart of this illegal trade. This is an illegal
market. Any market of this nature depends on supply and demand
but the market also, if you like, comes together because these
people are in the full-time business. I am not by any means condemning
all private investigators but I am saying that most of our inquiries—and
Mick may want to say a few words about this—focus upon the
activities of private investigators.
Mr Gorrill: We have 23 live investigations
at the moment all based on private investigators. They have come
to our notice for unlawfully obtaining personal data. It normally
starts with a phone call to the DWP, BT or someone else who holds
a big database of information. We are also getting more concerned
now that medical records are being attacked. To give an example,
a few weeks ago we executed a search warrant, and while the investigators
were executing the search warrant the fax machine started to work
and there was a fax there from a company we are now investigating
asking to find out if a particular woman had ever had cancer and
if she has cancer at the moment. In a second one very similar
to that, we found a task sheet which asked someone to ring some
clinics in London that did abortions, to find out if a named woman
had ever had an abortion at any of the clinics, with a warning
to: "Be careful when you speak to the receptionist. If you
do not get the information, hang up immediately, because we do
not want to be compromised in this endeavour." These are
the kinds of things we are doing.
Q47 Paul Farrelly: Do you think you
might be looking in the wrong direction?
Mr Gorrill: In what way?
Q48 Paul Farrelly: On these private
eyes. Do you think you might be focusing on not the main culprits
of misuse of personal connection.
Mr Thomas: We are an investigating
and prosecuting authority. We can go where the evidence leads
us. The hardest and most blatant evidence which we have come across
has been on the files and the records of the private investigators.
But I think it is very important to make clear to this Committee—and
I think it is implied in your question—that it is not just
the representatives of the media. It is a fairly small minority,
frankly, of the media who are the ultimate customers. We also
identified the fact that banks, insurance companies, local authorities,
even law firms are also involved in this market. That is one reason
why the DCA has decided that the penalty should be increased generally.
I am bound to say, however, that these other players, if you like,
people like the British Bankers' Association, the Finance and
Leasing Association, have all come along, in effect, and said,
"This is unacceptable. There may be a few bad apples"
and they are broadly supportive of increasing the effectiveness
of the law to deal with the problem. That has not, sadly, been
the general response of the media. The media has been rather more
hostile to the proposals we have been putting forward.
Q49 Alan Keen: Both the newspaper
industry and the NUJ are opposed to custodial sentences under
section 55 of the Act on the grounds that it would deter investigative
journalism. Where do you place the balance?
Mr Thomas: I hear the chilling
argument, Mr Keen, which I think is what they are saying. To a
certain extent, I want to deter illegal activity, but I do not
think this in any way will chill or deter genuine investigative
journalism. There are a number of defences, which I have mentioned
this morning already, for the prevention or detection of crime
and where it is in the public interest. It seems to me that any
serious investigation which can be remotely justified as being
in the public interest will not be deterred or chilled by this
law. It is already the law. In theory there has already been the
possibility of unlimited fines. That has not been effective in
deterring the unacceptable activity but nor has it inhibited the
acceptable investigatory journalism. As I said earlier, in the
cases we have investigated there has not really been any suggestion
of what I would call genuine public interest. We can recognise
it when we see it but none of the cases we have come across, I
think, could easily have been justified as being in the public
interest. It seems to me that any responsible journalist who is
contemplating paying for or obtaining this sort of information
only has to make a file note saying, "I'm obtaining this
information for the following public interest reasons" and
that would be a very strong piece of paper to wave in the face
of any commissioner investigating and possibly prosecuting later.
I do not think really it is going to have any serious effect on
chilling genuine investigative journalism. There was a very recent
and very important judgment in the House of Lords, the Wall
Street Journal case related to what I would call "responsible
journalism". Perhaps I might just read to the Committee the
passage in Baroness Hale's judgment, because it puts it very clearly
indeed: "The public only have a right to be told if two conditions
are fulfilled. First, there must be a real public interest in
communicating and receiving the information. This is, as we all
know, very different from saying that it is information which
interests the public—the most vapid tittle-tattle about
the activities of footballers' wives and girlfriends interests
large sections of the public but no-one could claim any real public
interest in our being told all about it. It is also different
from the test suggested by Mr Robertson QC, on behalf of the Wall
Street Journal Europe, of whether the information is "newsworthy".
That is too subjective a test, based on the target audience, inclinations
and interests of the particular publication. There must be some
real public interest in having this information in the public
domain. But this is less than a test that the public "need
to know", which would be far too limited. I entirely endorse
that sort of approach. I think it very clearly distinguishes between
the genuine public interest and some cases where the public may
be interested but it is not in the public interest.
Q50 Alan Keen: You have made the
point a couple of times that you have been disappointed with the
penalties when you have been successful on prosecutions—presumably
because it is not a sufficient deterrent. Who is at fault? Who
is making sure these are not sufficient as a deterrent?
Mr Thomas: The law itself has
a relatively low level of maximum penalty. That is why I have
argued the case forcefully and the Government have now accepted
that the penalty should be increased on the face of the law itself.
Q51 Alan Keen: The Government have
accepted.
Mr Thomas: Yes, the Government
had a consultation exercise in the autumn and about a month ago
published their response to the consultation exercise. It proposed
increasing the penalty. It had about 65 responses in total and
the vast majority supported the idea of increasing the penalty
and the Lord Chancellor announced about a month ago the intention
to increase the penalty when Parliamentary time allows.
Q52 Alan Keen: Will that put it right?
Mr Thomas: Yes, indeed. I think
that would be exactly what I have been looking for. I am delighted
with that response on this point from the Government. We have
had a success already, frankly, in raising awareness of the problem.
It was interesting that for the first couple of months after we
published our report in May, it received virtually no press coverage
at all. It was just ignored by the press. Then, for a range of
reasons, perhaps not least the News of the World case,
it became rather more prominent. I do not think there are many
journalists now who can say, "We didn't know that it is an
offence under the law" because I think there has now been
sufficient controversy about this matter. So we have had already
success in raising awareness but, equally, that means for the
future no one can say they did not know it was against the law.
Chairman: That is all we have. Thank
you very much
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