House of COMMONS
MINUTES OF EVIDENCE
CULTURE, MEDIA AND SPORT committee
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Taken before the Culture, Media and Sport Committee
Mr John Whittingdale, in the Chair
Mr Mike Hall
Mr Adrian Sanders
Mr Tom Watson
Witnesses: Mr Christopher Graham, Information Commissioner, and Mr David Clancy, Investigations Manager, Information Commissioner's Office, gave evidence.
Q1795 Chairman: Good afternoon. This is a further session of the Select Committee's inquiry into press standards, privacy and libel. Once again, this is specifically focusing on the stories that have appeared in the Guardian, both in relation to the activities of Clive Goodman and Glenn Mulcaire but also into what is known as Operation Motorman, which is something we will be focusing on in the first session. In the first session I would like to welcome the Information Commissioner, Christopher Graham, and David Clancy, the Investigations Manager at the Information Commissioner's Office. Mr Graham, I believe you would like to make an opening statement.
Mr Graham: If I may, Chairman. Thank you. I became Information Commissioner on 29 June. In a previous life I was a journalist. My predecessor as Information Commissioner, Richard Thomas, was very active in highlighting the unlawful trade in confidential personal information, and he gave evidence to this Committee on a number of occasions and your most recent report on self-regulation of the press supported the Information Commissioner's call for the provision of a custodial sentence as the penalty for the most serious offences under section 55 of the Data Protection Act - obtaining, disclosing or procuring the disclosure of personal information knowingly or recklessly, without the consent of the organisation holding the information. The work on this problem by the Information Commissioner's Office - the ICO - was summarised in two reports to Parliament in 2006: What Price Privacy? and What Price Privacy Now? Those reports concerned breaches of the Data Protection Act, often through what is called 'blagging' - tricking organisations into revealing confidential personal information, illegal phone tapping and hacking. The issues highlighted by the Guardian story of 9 July were not at issue then and would be a matter for the police under the Regulation of Investigatory Powers Act (RIPA) and not the Information Commissioner's Office. But, the continuing need for an effective deterrent to serious breaches of the Data Protection Act is underlined by the fact that the unlawful trade in confidential personal information generally continues to flourish. My colleague, David Clancy, who was involved in the original Operation Motorman project, can tell you more about our ongoing day-to-day operations, attempting to frustrate the dealers in personal data. This is of concern to everybody, not merely celebrities or public figures, or even journalists, Chairman. I am very ready to answer the Committee's questions.
Chairman: Thank you.
Mr Hall: Chairman, could we have a copy of that now?
Q1796 Chairman: You would like a copy circulated now. We will take a copy. Can I just clarify for absolute certainty that your Office had no involvement in the investigation of the Mulcaire/News International activities?
Mr Clancy: We had no involvement whatsoever, Chairman.
Q1797 Chairman: That is nothing to do with the Information Commissioner's Office at all?
Mr Clancy: That is correct.
Q1798 Chairman: So we will focus entirely on Operation Motorman. First of all, you will have seen the reports in the Guardian, both of a few weeks ago and, indeed, this week. The principal source for those seems to be your Office, that you made available information from the inquiry to the Guardian.
Mr Graham: Not to the Guardian, Chairman. I do not know what the Guardian's source is. It is clearly information that originates from the ledgers and the invoices that we collected in Operation Motorman but we, of course, are constrained from making that information more public except for a lawful purpose, that is section 59 of the Data Protection Act. Apart from information we have released to the individuals who have contacted us saying, "I think I may be on that database, tell me about it", standard data subject requests I think they are called, back in December 2006 we did release to a Guardian journalist who was covering the second report, What Price Privacy Now?, purely as illustrative material a sample of invoices and ledger entries, all of it redacted, simply to show that the sort of thing that was being bought and sold was identifying people's addresses from telephone numbers, accessing ex-directory numbers, accessing friends and family numbers. That information which we have now made available to the Committee is particularly uninformative. It does not tell you who the customer was, who the target was, it just says, "Ex-directory search" and so on. That is one source. The second source ---
Q1799 Chairman: This included the example which was originally given to this Committee by the Guardian, that did come from you.
Mr Graham: I think whenever you interviewed Mr Davies and he passed round some paper, that was a sample of what had been provided. I think it featured particularly News International.
Q1800 Chairman: Indeed.
Mr Graham: Our sample included a wider selection of titles. It did not give details of the journalist who was asking for the information or who the target was, or any of the personal data. I said there was a second area in which we had made information available and this was again, I think, under section 59 of the Data Protection Act, the lawful purpose being a court order in connection with solicitors acting for, I think it was, Gordon Taylor, the former footballer, who I think was suing the News of the World. We had to make available under a court order a quite substantial amount of information. I do not know whether David Clancy can help me here but I think it was probably a ledger form.
Mr Clancy: There was lots of information from the entire Motorman database, which included information contained in the various ledgers.
Q1801 Chairman: But it was not just restricted to Gordon Taylor, this was information covering a large number of individuals.
Mr Clancy: It would have been because obviously that would have been an exhibit for the court so it would contain more information.
Mr Graham: Again, I am obliged to assist those people who feel that special purposes that provide certain protection for journalism, literature and the arts, if the processing of information under those special purposes has in some way gone wrong and been abused the Information Commissioner is charged with assisting citizens who are asserting their rights. I do not know but it may be that some of the wider information that appeared in the Guardian on Monday came from that source. That is purely conjecture; I do not know that. It certainly did not come directly from the Information Commissioner's Office.
Q1802 Chairman: Not officially anyway.
Mr Graham: I just think not. I cannot prove a negative.
Q1803 Chairman: Mr Davies is in the room but I do not imagine he is going to tell us. The very large number of names which the Guardian printed who have been subject to inquiries by Mr Whittamore's company, it did look as if that information came from somebody who had seen the ledgers.
Mr Graham: Well, it would if it had come from the Office.
Q1804 Chairman: But you do not think necessarily it did?
Mr Graham: It did not come from us, Chairman.
Q1805 Chairman: The names that appeared in the Guardian on Monday all relate to activities which took place 15 years ago, or sometimes more, and yet to quite a number of those names it came as a surprise that they were featured in Mr Whittamore's ledgers. Can you tell us why did your Office when you obtained the ledgers not tell the people who appeared in those ledgers that they had been subject to possibly illegal inquiries?
Mr Graham: I think if I can just step back a bit. Any regulator has to make decisions about how it approaches a breach of the legislation that it uncovers. There were, I read in the Guardian, I have not counted them myself, 17,000 invoices or purchase orders for personal information on people in whom the press were interested. The only evidence we had was the ledgers and the invoices. The press, of course, would have the defence under the Data Protection Act that they were pursuing a story in the public interest. My predecessor had to make the judgment whether you throw the whole resources of the organisation into going through 17,000 pieces of evidence in order to assess the nature of a story and to work out whether the Ziggy Stardust in the ledger is the Ziggy Stardust you might need to alert. The decision was taken no, we are going to approach this by trying to end the unlawful dealing in personal confidential information at source, we are going to go for closing down these operations and we are going to report formally to Parliament. It was the first formal report that the Information Commissioner had given to Parliament under the legislation. We are going to say, "This is going on and it is going to go on until there is a real penalty in the Data Protection Act for this sort of thing". So my predecessor reported in What Price Privacy? the need for a custodial sentence and, indeed, this Committee agreed with him. In a case you may have seen yesterday in Nottingham Magistrates' Court, the District Judge regretted that he was only able to fine an individual who had been guilty of a pretty blatant breach of the Data Protection Act £100 plus costs, and he remarked that people would find it surprising that that is all he can do under legislation. The priority was to sound the alarm, to warn the industry, to talk to the Press Complaints Commission, to urge the provision of a custodial penalty, which is kind of half there, and perhaps more on that later when we get to the discussion, and what to do about the individuals concerned. I think with the benefit of hindsight what we might have done was to do what we did with the blacklist for the construction industry, the so-called consulting association, and Mr Kerr who my colleague, Mr Clancy, ran to justice where we closed down the business but we also, in making that very public, said, "If anyone has concerns that they may have been blacklisted and denied employment because their name is unfairly included in this register then get in touch with us and we will let you know what we have got". David, you are dealing with a few of those applications now, are you not?
Mr Clancy: There are over 120 individuals who subsequently obtained their information and a number of those individuals are now bringing claims before the courts in relation to their consideration that they were blacklisted from the construction industry. I think if you compare the two we have got very favourable support from the press in relation to the consulting association, but with What Price Privacy? it was a situation where turkeys do not vote for Christmas!
Mr Graham: Could I just add, Chairman, as you have said, the information that was publicised in the Guardian on Monday dealt with some very old information. The ledgers that I have seen include invoices from 1999. If we collected these in 2002 there is old information there and the whole point is the journalists were trying to get a contact number to ring for a quote at the end of an investigation or whatever they were going to do, so the supposition was that the individuals would already have been contacted, so they would kind of know that their ex-directory number had gone AWOL. I think though we would all agree now that we are a bit more experienced in this and we are tackling some pretty dodgy customers that in What Price Privacy Now? when we listed the various newspaper organisations and said that 305 journalists had been at this, we should also have said, "If anyone is concerned that there may be information or wants to know how it was obtained they should contact the Information Commissioner's Office and we will process that inquiry as we are doing with the construction industry".
Q1806 Chairman: To say the onus is on individuals to ask you whether or not they appear in this ledger, and thanks to your Office I have seen the ledger, as you know, and there are hundreds of names, obviously there are some who are unsurprising, leading celebrities, sportsmen and politicians, but the vast majority are people who are comparatively unknown. How would they know that they appeared there? How would they know to ask the question?
Mr Graham: Obviously we would have to work out what we would do, but how would I know what I could tell those individuals about what I had or how could I show it to them without showing a lot of other people's personal information. Those ledgers, Chairman, as you have seen, are full of ex-directory phone numbers, mobile phone numbers, lists of friends and family and so on. It is an appalling situation. That is why Richard Thomas, my predecessor, was right to sound the alarm to Parliament and to say to the industry, "This is going on and it has got to stop. There must be that custodial sentence". We seem to have got into the Alice in Wonderland situation where we are shooting the messenger. It was the Information Commissioner's Office who highlighted this whole thing; we are the good guys in this, Chairman.
Q1807 Chairman: I am sure my colleagues may wish to return to this but, whilst I finish the questions I have, you did not tell all the individuals and the other thing you did not do was you did not initiate prosecutions of any of the journalists named, you restricted prosecution to Mr Whittamore. Why were journalists not prosecuted when there was clear evidence that they had been knowingly commissioning illegal acts?
Mr Clancy: I think the difficulty would be the offence relates to "knowingly or recklessly obtaining personal information". We had in the region of 400 journalists and, to be fair to those journalists, if we were to conduct an investigation we would have to investigate all 400 and satisfy the court beyond all reasonable doubt that journalist knew that information was unlawfully obtained. If it was an ex-directory telephone number, some of those numbers could have been obtained by ringing round friends or other people that they may know and, therefore, an ex-directory telephone number may have been obtained legitimately, we could not say for sure, so there would have had to have been 400 intensive investigations carried out by the Commissioner's Office within the resources that we have got. That would mean that the Commissioner possibly could not carry out his other functions under the Act. A decision was made to go down the route of, "Let's bring this into the public, change the public's opinion of what's going on", and hopefully change the law so that the possibility of a custodial sentence hanging over people committing these offences would be a sufficient deterrent and protect people in the future.
Mr Graham: In the meantime, of course, you say the journalists were commissioning an illegal act but we do not know that was the case because there is the defence of public interest and sometimes journalists have to do pretty underhand things to get stories that are manifestly in the public interest. The classic example, of course, is the Guardian and the 'cod fax' that got the evidence that put Jonathan Aitken in prison. If that had been in pursuit of some pop star's sex life everyone would have condemned it, but as it was they said, "Well, there's the public interest". We did not even know what the stories were, never mind what the defence was, so I as the Information Commissioner had to decide, given the vast range of duties that I have for freedom of information as well as data protection, where do I deploy my resources. Do I put the whole organisation on to investigating 17,000 individual pieces of paper to work out what the story was, to work out whether or not it was in the public interest, and to range against some pretty well fee-ed lawyers on the other side, or do I say to the industry, "Put your money where your mouth is. You talk about self-regulation, do it" and then get on with a few other little issues, like the construction industry database, like the Revenue and Customs losing everybody's child benefit records, like concern about CCTV cameras, databases and so on, never mind the Freedom of Information Act. There is a lot to do. It would not have been good regulation for the Information Commissioner's Office to prioritise this particular bit of the jumble, that is only the journalists' bit of the jumble, we are concerned with the whole trade in personal information which is about many other issues, as David can tell you.
Q1808 Chairman: You say that therefore you took the decision to tell the industry to put their house in order and asked for strengthened penalties, but in that case why did you not say to individual newspapers, "These are journalists employed by you who feature in the ledger and you might like to ask them why and to justify the inquiries they made"?
Mr Graham: We started off by a general call to the industry which, indeed, was heeded to some extent in that the Editors' Code Committee eventually amended clause 10 of the Code, made it much tougher, and we have done a lot of work with the Press Complaints Commission in training editors. We have done a couple of seminars, one in London and one up in Scotland, to make sure that journalists understand that this is serious. I saw a copy of the Editors' Code Handbook the other day and it makes it very clear that you mix with the Data Protection Act at your peril and you had better have a very solid public interest story very well documented in order to do that. Chairman, the interesting question is why did not any of those titles that were listed in What Price Privacy Now? contact the Information Commissioner's Office and say, "This is terrible, 45 of our journalists apparently have been doing this thing which we utterly condemn, tell us who they are", and we then might have been able to talk turkey. Interestingly, of 305 journalists, and we listed the total in the document, we have not had a single inquiry from a journalist saying, "Am I on that list? Was I doing something wrong?"
Mr Clancy: That is correct.
Q1809 Chairman: So you published the table listing titles and numbers of journalists and you had no response from the industry seeking further information at all?
Mr Graham: No. I have seen a number of sessions of evidence to this Committee where the answer to some of your more probing questions is, "Ask the Information Commissioner, the Information Commissioner will know", but nobody has actually asked the Information Commissioner.
Chairman: Thank you.
Q1810 Paul Farrelly: Thank you very much, Chairman. I just wanted to come back to what happened after the Motorman inquiry. We have discussed the fact that people were not routinely informed that they had been the victim, be they ordinary people in the street or public figures, of blagging or an illegal use of databases. One example is I spoke to Peter Kilfoyle following the Guardian article and Peter is quite happy for me to say that he is "incandescent with rage" - those were his words - that the Information Commissioner six years on had not told him that in this case, I understand, it was the Daily Mail that used the DVLA illegally to get his constituency home address for whatever reason from his licence plate number. Peter was angry that six years on you had not informed him even though he was a minister attached to the Cabinet Office at the time and there were, therefore, security implications and that he had to learn these details from a Guardian journalist over the telephone.
Mr Graham: You ask what we did after the Motorman investigation and the answer is with the Crown Prosecution Service we launched prosecutions against those who were involved in the trade. We then ran up against the very disappointing result of the very weak powers and the very weak penalties that exist in the Data Protection Act and, because of a technicality, it was even weaker than the rather pathetic financial penalties in the Act and everyone just got off with a conditional discharge. When we are invited to take further action you have got to see it against the context of a regulator that is trying to do the decent thing and has got seriously knocked back. I have already said that our experience with the construction industry database is that if we had our time over again we would do it a different way. Peter Kilfoyle's name would have sprung out. There were a lot of names of ordinary individuals that would not have rung any bells. I would have had to put a very large number of people trawling through those 17,000 pieces of paper. Even if it had been in the name of bringing some prosecutions against journalists we faced the prospect of them getting no more than a conditional discharge. The responsible thing to do was to report to Parliament to say, "Let us have this custodial sentence". I am very sorry if people feel let down by the ICO but against that I would say there was some very good investigatory work by David Clancy and his colleagues which has blown open this trade, which is still going on. The issue should not be whether the Guardian hates News International, it should be whether Parliament will now activate the custodial sentence that is there in abeyance in the Criminal Justice and Immigration Act and take that custodial sentence from behind the bar in the Last Chance Saloon, where it is sitting at the moment, and say, "You're going to jail if you carry on doing this". For dealers in personal information, that is the key decision.
Q1811 Paul Farrelly: Your position is very clear on that, as might be expected. If people approach you now and ask whether they featured in your Motorman files, will you let them have the records?
Mr Graham: We will look at each individual case. Obviously it has got to be somebody with proper standing, we are not going to have this as a way of investigative journalists running the story on a little bit further, it has got to be a proper process. Just as we are doing with the construction workers, we would certainly deal with these people. Please bear in mind that one of the invoices I have seen is from 1999 and it is inconceivable that somebody seeking someone's ex-directory phone number in 1999 has not used the number to check out the story, so the individual knows that their private number has been made public.
Q1812 Paul Farrelly: That is not necessarily the case and I want to come on to that. That is a leap that you cannot make, Mr Graham.
Mr Clancy: Can I just say that at this moment in time a number of individuals have sought access to that information that is contained within the Motorman database and that access is being processed within our Office.
Q1813 Paul Farrelly: Just let me be clear. If Peter Kilfoyle, to name one example, comes to you now and says, "I would like to see how and where my name features in the catalogue of activity in the Motorman files", will you release that information to him?
Mr Graham: Yes, I would have to do that. I am just looking to see the particular section in the Act that charges me with doing that. I think it is section 13.
Q1814 Paul Farrelly: Can I repeat the question in terms of what happened during and after Motorman. What about the organisations that were penetrated and their security procedures subverted. The whole catalogue that Nick Davies named in his latest article on Monday, did you go to each of those organisations to give them instances of how, where and when their databases had been penetrated so that they could improve their own security procedures in the future?
Mr Clancy: We approached a number of organisations obviously because we obtained witness statements from those organisations and they thoroughly assisted us with our inquiries. I think it is fair to say, again, we would not go through the entire ledgers and contact every particular organisation because we end up with very intrusive investigations in relation to individuals, "Who is Peter Kilfoyle? Whose car is that the registration number of?" We start obtaining his personal information for our purposes and then more and more people get their hands on this personal information that should be protected. We identified with the organisations, the banks, the telecoms companies, et cetera, that there were problems with this. We have worked actively with some of those companies in looking at security issues and it is an ongoing thing. I think it is fair to say that most organisations that process personal information nowadays, whether it be telecoms companies, banks, or building societies, are, to a degree, insecure and will be attacked and be constantly coming under attack by private investigators and people who obtain information to sell on to insurance companies, solicitors firms and organised crime gangs for witness intervention purposes, et cetera, so there is a massive trade out there. In fact, you can go on to the Internet today, the website www.freelancesecurity.com, and you will see private investigators advertising there to say, "I want to obtain a person's bank account information", and people will bid for that information. I can get that for $2000 or £2000 within ten days because the trade is still there.
Q Mr Watson: Could you repeat that address?
Mr Clancy: It is www.freelancesecurity.com. It is a non-UK-based website, but some UK PIs will bid for jobs on that website.
Q1815 Paul Farrelly: You mentioned witness statements and that just begs the question in my mind: were any journalists arrested following the Motorman inquiry and as a result of the parallel police actions, to your knowledge?
Mr Clancy: Other than for data protection purposes, there is no power of arrest under our legislation.
Q1816 Paul Farrelly: But that is not the question.
Mr Clancy: But the police may have actually arrested people in relation to the conspiracy case.
Q1817 Paul Farrelly: Do you know of any instances?
Mr Johnson: I am not aware of any arrests.
Q1818 Paul Farrelly: I am told there were three arrests.
Mr Clancy: I am not aware of those personally.
Q1819 Paul Farrelly: So, as far as you know, no journalists were arrested?
Mr Clancy: As far as I know, I am not aware of any arrests.
Q1820 Paul Farrelly: There are two reasons why we have asked you
here today and it is because there are two things that are new now. Firstly, there are the two revelations in
Nick Davies' two lengthy articles that give the public new details beyond what
they already knew from your tables and in your What Price Privacy Now? document so that people can now judge
whether the law was being broken from the information that was requested and
the means by which it was accessed.
Secondly, you are here because what else is new is that you were ordered
by the court to provide documents in relation to the civil action brought by
Gordon Taylor. Can you tell us what
documents you were asked to provide in the
Mr Graham: I do not know whether David is going to be able to help with that, but, just before we try to answer that question, I am interested in the suggestion of 'new' information.
Q1821 Paul Farrelly: What is new in the public domain.
Mr Graham: But it is not evidence of what is going on now. What we have got is more information in the public domain legitimately or illegitimately of what was the case in 2006 when What Price Privacy? and What Price Privacy Now? were published. We have not got any further information to share with the Committee about journalistic practices.
Q1822 Paul Farrelly: That is not my question.
Mr Clancy: I think it is fair to say in the Taylor case that a number of documents were obtained by Mr Taylor's representatives which, they believed, would assist them to evidence the fact that News International were carrying out, in effect, a new investigation against their client and that the means that they used potentially were unfair and in breach of the Data Protection Act. Therefore, I think it is something we would build in support of evidence and it would not be evidence in relation to the actual hacking.
Q1823 Paul Farrelly: Can you tell us in what respects Mr Taylor's name features in the Motorman files?
Mr Clancy: I cannot exactly name every piece of information that is in there, but there would have been obviously references to News International at some point seeking information in relation to Mr Taylor which would not be found in the public domain.
Q1824 Paul Farrelly: What sort of information, from your knowledge?
Mr Clancy: I cannot make a particular comment in relation to that, but obviously there is a massive amount of information there in relation to his legal representative seeking access to that information, and that was done via another department within our office, it was not the investigations team who managed that.
Q1825 Paul Farrelly: Did the documents provide details of accessing the sort of information through means which would clearly seem to be illegal?
Mr Clancy: I think clearly, if it was information which was contained within ledgers, it would be evidence to say, "This is the particular activity of journalists. They're obtaining information which cannot be obtained normally", such as vehicle registration details, telephone conversions, converting their telephone number into an address, ex-directory numbers.
Mr Graham: What it does not contain is usually the technique used, though in one or two cases it does say on the face of the purchase order or the ledger log, "blag", but it does not say, "hack" or "tap", so we do not know how this information would have been obtained, except where it specifically says, "blag", which of course is just ringing up and pretending to be somebody else.
Q1826 Paul Farrelly: But, just in respect of the
Mr Clancy: Yes.
Q1827 Paul Farrelly: I just wanted to wrap up and just explore the reasons for not publishing the Motorman files in the public interest and whether you got this decision correct. Is it correct that individuals or organisations that have been targeted can only get that information now when they are being told by, in this case, a particular assiduous Guardian journalist? Is it satisfactory that people will only be able to get access to those records if they are generally determined or wealthy enough to take out a civil action and get court orders to instruct you to provide those details? Also, just in terms of the natural justice, have you considered whether your refusal to publish those, be it in redacted form, is undermining the process of press self-regulation? Let me give you an example from the latest article on Monday. In his article, Nick Davies talks of a case brought by, I assume it is a lady, Syrita Collins-Plante, "who complained to the Press Complaints Commission that The Sunday People had invaded her privacy and harassed her in search of a story about the boxer, Lennox Lewis, phoning her repeatedly until a police officer asked the newspaper to stop. The PCC ruled that her privacy had not been breached - without knowing that her private address and phone number had been blagged out of BT by Whittamore's network." Now, in other spheres that would count as a miscarriage of justice, so have you considered whether your refusal to publish the data, be it in redacted form or not, is actually undermining press self-regulation?
Mr Graham: If I published it in a redacted form, it is of no use to man or beast. You could have pages and pages of material that you have already got from me, but it is supremely uninformative, so that does not help us. If I publish it in a non-redacted form, I am publishing personal information that the Data Protection Act is there to stop, so in sort of general terms of publication I am between a rock and a hard place. I am specifically charged under section 59 of the Data Protection Act under penalty of a criminal offence, myself as Information Commissioner, my predecessors and staff, if we make available information that we collect in the course of our duties, except for a lawful purpose, so the question then is: what is a lawful purpose? If you are confronted with a court order, that is manifestly a lawful purpose. Now, I am not saying everyone has got to go off and get a court order to have a look at this stuff. I have already said that we will follow the precedent that we have established with the consulting database and help people who may be worried about it, and you mentioned the former Minister, Mr Kilfoyle, that I had better contact him and say, "Can we sort this out?" It does not have to be by court order if people have good reason to come along. I showed the Chairman the files the other day.
Q1828 Paul Farrelly: Indeed, and how does that square with your duties?
Mr Graham: Because it was for assisting a parliamentary committee and I thought that, once your Chairman had seen what we were talking about, he would see the difficulty that I was in, so it would not have to be by court order, but we are not playing games here. I have statutory responsibilities to do things and also not to do things. What the Information Commission has been concerned to do is to flag up the issue, as I have said. Now, in relation to self-regulation, I have just come from being Director General of the Advertising Standards Authority, which of course is a self-regulatory body, so I know about this sort of thing and I would not presume to tell the Press Complaints Commission what to do, nor do I know the circumstances of this case, but it is perfectly open to the PCC to go back to the titles who were defending that particular charge and say, "We think we've been misled and we want to have a look at this again" in the same way as this Committee is doing.
Q1829 Paul Farrelly: But it is making decisions without the full knowledge of the facts. Can I just take issue with your assertion, Mr Graham, that a redacted form would be of no use to man or beast. Can I suggest that what would be very helpful in the public interest, it would certainly act as a very strong deterrent and it would allow those people in the general public, be they the man or woman in the street or public figures, to know whether they have been targeted and by whom, if you published the files in the following form: with the name of the journalist and the newspaper group involved, the kind of information requested, the person targeted, but not to the extent that the information is actually in the meticulous files kept by Mr Whittamore, and not the response to the information. That would be very helpful in the public interest and certainly would be very useful. It would mean that anybody bringing a complaint, for instance, the Press Complaints Commission, would know whether they have been targeted and the Press Complaints Commission would know it as well, just to take one example.
Mr Graham: I just think that is not what I am here to do. If I listed the names of all the journalists, I am in danger of guilt through association. I do not know whether some of those journalists' enquiries, for example, the head of the list in The Guardian referred to The Observer, and I do not know whether The Observer was dealing in the tittle-tattle and sex life of some popstar or whether it was a major scandal involving Ministry of Defence contracts, but those names would be up there with people who were simply dealing with celebrity gossip, but, having considered this, perhaps I had better go away and consider it further. At first blush ----
Q1830 Paul Farrelly: I used to work for The Observer and I imagine The Observer did not do tittle-tattle and I imagine that the journalists, to the extent that they are still working for The Observer or are now working for other news organisations, will have their public interest defences there.
Mr Graham: Is it not also a gross invasion of privacy, Mr Farrelly, to list all the subjects of enquiry? They may not want it placed in the public domain that they were. It might be no smoke without fire, and we are talking about principals, their wives, their families, their girlfriends, their friend and family numbers, but this is just not what the Information Commission is here to do. We are here to stop the child benefit records going missing, we are here to help administer the Freedom of Information Act and we are here to deal with data-sharing between government departments. There is a lot to do and, if this Committee really wants me to devote the resources I should be spending on that to an after-the-event, line-by-line investigation of 17,000 pieces of paper, I think it is the wrong priority. What I want you to do and Parliament to do is to activate that section of the Act and introduce the custodial sentence. That will shut this down at a stroke.
Q1831 Paul Farrelly: David, you were talking to one of these merchants the other day about it, were you not?
Mr Clancy: Yes, we speak to private
investigators quite a lot and we have had situations where, when executing a
search warrant, we find information which has been unlawfully obtained and the
individual turns round and says, "Maximum fine £5,000? I'll write the cheque out now". Alternatively, at this moment in time a
section 55 offence is not a recordable offence, it does not appear on the PNC,
but I had a PI phone me up the other day to say, "I've been convicted. Does it appear on the PNC because my wife
wants to go to
Mr Graham: It is not just in this sort of sleazy world of husbands trying to find out what their wives are really worth in divorce proceedings, which is the one that is up on the site you mentioned at the moment, because the husband wants to reopen a consent order to get a better deal under the divorce settlement and he thinks his wife has been hiding assets from him, charming stuff, but it is also things that interest the Serious Organised Crime Agency, SOCA, it is about witness intimidation, it is about jury-tampering. That is the sort of thing you can buy. Parliament, I think, was seduced by the siren voices of Fleet Street, saying that this was going to have a chilling effect on investigatory journalism, despite the fact that the journalist simply has to establish that the story was a serious story. I am not going to go after somebody who is doing something manifestly in the public interest, but I will go after people who play fast and loose with data protection legislation to no good purpose. I need that custodial sentence in place and I need it now.
Q1832 Chairman: When you say that Parliament was seduced by siren voices, Parliament was not given an opportunity because, as we understand it, the Prime Minister received a call from Paul Dacre, Les Hinton and, I think, The Daily Telegraph, a sort of concerted lobby, and, as a result, the Government changed its policy.
Mr Graham: Well, I think that the issue goes so much wider than journalism that a strong recommendation from this Committee might put some backbone into it.
Q1833 Janet Anderson: I just wanted to pursue that, Mr Graham, and really a lot of the points I wanted to raise have been dealt with. The Chairman has said that he feels the Government did essentially what was a U-turn on this particular clause in the Criminal Justice and Immigration Bill which would have imposed a custodial sentence as a result of pressure from Fleet Street. Are you aware that that was the case, and do you know whether the ICO at the time strongly objected to that?
Mr Graham: Well, the position of the ICO at the time is set out in What Price Privacy? and What Price Privacy Now? I am afraid we are getting into territory I cannot comment on because I simply was not there. I only started on 29 June and I was not concerned with the higher politics of all this.
Q1834 Janet Anderson: But will you be lobbying the Government now that you are in post to restore that particular clause in some way because they have actually made it into a suspended clause and it is not quite clear what is needed to reactivate it? Will you be lobbying to make sure that it is reactivated?
Mr Graham: Yes, I contacted the Ministry of Justice last night and said that this would be the burden of my song before the Committee, and I understand it would involve a ministerial order. I do not think it even involves further parliamentary consideration. It is designed to be there as a sort of Damocles. The trouble is that the threat is a wasting asset. The extent to which everyone is on their best behaviour at the moment is, I think, because of the Goodman jailing and because of all the talk about custodial sentences, but anyone reading the papers today, seeing that you get £100 plus £100 costs and the judge regretting that he cannot do more is pretty much an invitation to get back to the old business, so I think we really do need to have that custodial sentence in place.
Q1835 Janet Anderson: So you would like that to be a recommendation of this Committee to the Government that they reactivate that clause?
Mr Graham: I would very much welcome that, and it would only be repeating what you said in your previous Report, that you were convinced that the custodial sentence was necessary.
Q1836 Philip Davies: I understand your point about the custodial sentence, but, given that we do not seem to be able to keep murderers, rapists and even terrorists in prison, I think your chances might be slim, to be perfectly honest. Just on this point of deterrent, I was intrigued by your earlier answer to the Chairman about why you did not take any action previously, and the answer that you gave was that you were filing it under "Too difficult" or "Too time-consuming" perhaps, that there were 400 separate investigations you would have to carry out and, therefore, you just did not bother because there was too much to go at. Surely, whatever the penalties are, if something is taking place on such a wide scale that you cannot investigate it, it does not matter what the penalties are because nobody will ever be brought to justice anyway because, if it is so wide-scale, you are just going to file it under "Too time-consuming".
Mr Graham: We are not filing it under
"Too difficult" or "Too time-consuming".
Every regulator you deal with has to make decisions and choices. The Better Regulation approach urges us all
to be proportionate and to pick our battles.
When I was at the Advertising Standards Authority, I used to be
infuriated that the Office of Fair Trading were not always willing to pick up
the cases I wanted them to pick up. You
know, you have to make choices. The
question of the penalty is its deterrent effect; it is the big stick in the
cupboard. As David has said, if people
have to factor that risk in, it is a business that it is not worth being in,
and the example he gave was of somebody concerned that his criminal record
would show up and that would even spoil the family holiday in
Q1837 Philip Davies: But what you said in your earlier answer seemed to indicate that, if somebody acts alone and there is one example of it, you will deal with it because there is only one to deal with and, if it is totally widespread and it is endemic across the whole board and there is so much of it, then you just have not got the resources to deal with it.
Mr Graham: No ----
Q1838 Philip Davies: That appeared to be what you were saying.
Mr Graham: No, Mr Davies, you are misrepresenting what I said. I said that it was so big, with 17,000 individual items, 305 journalists and Lord knows how many titles, that the appropriate response was to make a big issue of it, to produce formal reports to Parliament, to call for a change in the law, to get the Press Complaints Commission moving to call on the industry and so on and so on. That is how you can deal with information in the mass. Individual applications from individuals, saying, "Assist me with what you may or may not have got on the file", I can deal with. What I cannot deal with is going through forensically to the standard of proof to work in a court of law 17,000 particular instances and attaching them to stories and then working out whether the story was or was not in the public interest and working out whether my lawyers would be able to beat their lawyers. That simply would have been irresponsible given everything else that Parliament has charged the Information Commissioner's Office with doing. I think the public would be outraged if they thought we were so up ourselves that we were just looking at journalists and not looking at the wider societal problems of witness intimidation, jury-tampering, people getting in the way of the course of justice in family proceedings and all these other things which are the big issue which we have it in our power to deal with. I do not want to get drawn into a battle between two newspaper groups and nor, I suggest, should the Committee.
Q1839 Philip Davies: Do you not think that the public might be outraged if you were aware of lots of things that were going wrong, but you were not doing anything about them because they were too time-consuming to deal with and you were looking at other things instead?
Mr Graham: But, as I have said, that is not what I said. We were tackling it at source in dealing with the dealers in the information and at the top by dealing with legislation. We were let down. We were let down by the courts who did not seem to be interested in levying even the pathetic penalties they had at their disposal, we were rather let down by Parliament in the end because nothing came of the legislation and I think, frankly, we were let down by the newspaper groups who clearly did not take it as seriously as the ICO.
Q1840 Mr Watson: I am hopefully going to try and get your ideas for what we could do as a Committee to satisfy ourselves that this will not happen again, and you have raised a very important point about what legislation can be enacted to make that happen. I would like to tease you a little bit on whether you think that self-regulation in this area is working and, in particular, the test that a journalist has to make about public interest, how that is assessed and whether there could be self-regulatory rules that make sure that they are not just at it.
Mr Graham: I do not think it is the job of the Information Commissioner to offer a view on self-regulation of the press. I have already said that, coming from my previous job only a few weeks ago as Chairman of the Advertising Standards Authority, I think effective self-regulation can be an extremely effective way of proceeding, but perhaps that is for another day. The idea of a public interest defence for the legitimacy of journalistic activity is absolutely fundamental and it is not to do with the PCC, it is a defence under the Data Protection Act, and in my role I will, both under the Data Protection Act and the Freedom of Information Act, have to take many decisions, balancing sometimes competing interests in deciding where the public interest lies. I gave the example of the famous Guardian investigation into the Aitken family's stay in that French hotel and the subterfuge that was employed to extract the bill from the vaults in the hotel, a very exciting story, and anyone who has been involved in journalism, as I have, would say that that was a legitimate piece of activity, so sometimes you do slightly doubtful things in a good cause. I suppose the issue is whether the undoubtedly doubtful things are simply in the cause of fluff and tittle-tattle.
Q1841 Mr Watson: Given that there is a public interest defence in the Data Protection Act, presumably what is in the public interest will be defined by case law?
Mr Graham: There will be similar cases which will no doubt inform, but I think every case has to be looked at on its merits. Of course it is a truism, is it not, that the public interest is not necessarily what interests the public?
Q1842 Mr Watson: Indeed.
Mr Graham: But it is very difficult to give you a view separate from specific cases.
Q1843 Mr Watson: If, because of resource problems or time or because you are trying to get corporate change, you do not bring any cases, it is very hard for people, for journalists working in the field, to know where they stand in terms of making that public interest test in the work they do. Is that not right?
Mr Graham: Well, it should not be for the Information Commissioner to go round prosecuting journalists because we do have the Press Complaints Commission and there is the Editors' Code and, since they have amended clause 10, these are clearly breaches of the Editors' Code, so I would expect the Press Complaints Commission would be dealing with that.
Q1844 Mr Watson: It is unlikely that the Press Complaints Commission would, and in fact I do not think they have the power to, bring a prosecution for people who break ----
Mr Graham: They should not need to bring a prosecution because compliance with the Editors' Code is part of a journalist's employment contract. If people want to get tough, they can. I think our job is to attempt to get rid of the suppliers. You are talking about dealing with the punters, but I say there are other people to deal with the punters, not the ICO.
Q1845 Mr Watson: But the evidence you have in front of you
shows that there was law-breaking on an industrial scale from the newsrooms of
some of the major newspapers in the
Mr Graham: But the only evidence, Mr Watson, that I have got is the ledgers and the invoices. I do not know what the story was in many cases and I do not know what the defence would be, so you would be asking me to switch the focus of the Information Commissioner's Office from some very important work into something that could perhaps be better done by the Press Complaints Commission.
Q1846 Mr Watson: I understand the point you make. What I am trying to do is ascertain responsibility in the system for getting this right. Let me try it another way. Are you convinced that these practices have now ended in newsrooms up and down the country?
Mr Graham: I am not in a position to know. We did not know before Motorman. Motorman, and Dave will correct me if I am wrong here, was not at our instigation. We were riding on the back of ----
Mr Clancy: Our police
investigation. It is very much like the
work that we do on a day-to-day basis.
We will get information, execute search warrants on premises and then we
find, in some cases, vast amounts of information. I think the
Q1847 Mr Watson: You have said this before. You have repeated this on numerous occasions now and I understand that is the point you make, but what I am trying to understand is that the decision you took, which, by the way, I think was the right decision, to blow this open, bring it into the public domain and try and effect massive change in the way journalists run about their work, I can understand why in a resource-sensitive area that is what you did, but what I cannot understand is why you have not gone back to see whether that has been successful or not or what gauge of success there is.
Mr Clancy: How can we measure it? Do we go to editors and say, "Have you come across any examples of journalists that have stepped over the line?"
Q1848 Mr Watson: Okay, so the only response you have got is, "We would like a custodial sentence for people who've broken the law", so presumably you are still getting people raising these issues with you, providing you with leads and evidence?
Mr Clancy: These are non-press-related. This is the issue. You are focusing on the press and we are focusing on the trade.
Q1849 Mr Watson: I understand this is not necessarily your responsibility, but I would like to tease you a little bit. Is there anyone in this country who would know whether these practices are still going on other than editors and journalists in the newsrooms?
Mr Graham: Well, editors and journalists must know; it is a self-regulatory system. Our free press in this country is not regulated by statute, except in relation to defamation and a few other offences. It is a self-regulatory system and, for example, we have had evidence this afternoon that, on the face of it, the Press Complaints Commission was misled. Now, I do not think it is really up to the Information Commissioner to get involved. We are looking at the dealers, you are interested in the punters, and I do not think we are ever going to agree, but there is a role for both sides. If we put the dealers out of business, then the punters will have to go elsewhere.
Q1850 Mr Watson: There is a supply and demand here, I accept that. I am not trying to tell you how to do your job, I am trying to find out how we can be certain that this is not going to happen again. Is it your view that editors have a responsibility for this particular case and perhaps they should write to the people involved who are on the ledgers to apologise or put the matter right and let them know a bit more information? As you rightly say, it might not be your job to do that, but do you think that they have got a responsibility to do that?
Mr Graham: Well, why do we not get past square one and have some of these newspaper editors and proprietors reacting to What Price Privacy Now? published in December 2006 and say, "This is a bad business. Let's hear more"?
Q1851 Mr Watson: Do you think it might be helpful if you were to give them the names of the journalists that they employed that you have on your files, given that they have not requested the names of the people?
Mr Graham: I want them to engage with the problem, however they do it. I do not know what my next step should be, but I do not want to make up policy in front of the Committee.
Q1852 Mr Watson: So, when they tell us that they think that they have thoroughly investigated the matter and they have put it right, do you think they could possibly have done that if they do not know the list of journalists that you have got on your files?
Mr Clancy: I think there might be information which would identify some of those journalists because some of the invoices quite clearly indicate that there have been blags in relation to particular stories and invoice numbers. Surely, their records should be able to cross-reference that to a particular journalist, and sometimes the invoices cross-reference the stories, so editors could examine their business and perhaps identify which journalists were or were not.
Q1853 Mr Watson: I think you could perhaps be a little proactive just to ensure that they have certainly done that or that they certainly have the information about the people who were at it.
Mr Graham: I understand what the Committee is saying, but you are not dealing with a regulator who is not proactive; we are proactive on a very wide front. Before another committee, I will be being asked, "What are you doing about child benefit records? What are you doing about tightening up security with credit reference agencies? What about the banks and so on?" There are lots of ways we could spend our time.
Mr Watson: In a previous life, I did have some responsibility for data-sharing, so I am pleased that I am questioning you and not being questioned by you. Actually, I think that you have probably got the argument for the custodial sentence, not because of the journalists' enquiries, but because of these poor construction workers who have been denied their livelihoods over many decades because the construction industry has colluded with private investigators illegally, so you make a strong point and I am sure that in our deliberations we can take that in.
Q1854 Adam Price: You said, Mr Graham, in your opening remarks that the blagging industry, to dignify that term, continues to flourish. Are you talking generally or do you think it is continuing to flourish in relation to newspapers also using these services?
Mr Graham: We have got no evidence about the newspapers' use of these private investigators beyond what we published in What Price Privacy Now? which came to us because of the Motorman investigation. I do not want the Committee to feel that the Information Commissioner's Office was under siege from complaints from members of the public about the behaviour of the newspapers, decided to raid a particular private investigator and then, lo and behold, a few years later everything is hunky-dory. We just do not know.
Q1855 Adam Price: You do make raids and in any of those recent raids have any newspapers shown up as punters, to use your term?
Mr Clancy: I can honestly say that we have not identified any information which would indicate that newspapers or members of the press have obtained information. That is not to say it was not there because all we may find is an oblique reference to information which has been obtained and passed through to a name, a name we will not know, and individuals may not identify who that is, so we cannot say for certain whether we have come across information which is not clearly identified, as in the Motorman case where there has been information in relation to a particular newspaper and a particular reporter.
Q1856 Adam Price: So there could have been a journalist who knew that, but it was not clearly flagged up as a journalist?
Mr Clancy: Yes.
Q1857 Adam Price: Nick Davies, in his article, referred to a dozen or more private eyes that have been working in this field and you simply do not know who they are?
Mr Clancy: Other than the ones that will already have been identified by Motorman and the other inquiries. There are hundreds of investigators out there.
Q1858 Adam Price: He refers to the former actor who uses his skills as a mimic to blag the same database, and I have heard references to that former actor, in fact I have even seen the name somewhere. Are you saying you do not know who that is?
Mr Clancy: Again, we have had references to the former actor ourselves, but we have not been able to identify him. We have had references to "Man the Van", e He He who is a man who operated in South Wales out of a vehicle because he felt he could not be traced in that respect, using mobile phones, and he kept all his records in a vehicle.
Q1859 Adam Price: So, to be clear, you have heard references, which I have seen, from various sources of a former actor and you do not even know his name?
Mr Clancy: No.
Q1860 Adam Price: The former detective who was bounced out of the police for corruption and has spent years carrying cash bribes from newspapers to serving officers, I have seen references to that allegation before, but you do not know who that is?
Mr Graham: It may be in Nick Davies's book which was published a couple of years back. Quite a lot of this is recycled from that rather exciting chapter about the 'dark arts'; exceptional reading for all journalists.
Q1861 Adam Price: You read the chapter in his book, so did you have any thoughts about maybe stealing some of that? It shows up that this is part of a wider problem and you have said that yourself.
Mr Graham: I am afraid I am going to become repetitive. You simply cannot run regulatory bodies on the basis that you go chasing after every detail that a particular investigative journalist decides should be the agenda for the day when you have got other very big and important questions. I am not pleading poverty here, I am just saying that you can only do what you can do. We thought, possibly naively, that, by telling Parliament about this back in 2006 and calling for the custodial sentence, we could close the thing down. I think they still can, but it is taking too long.
Q1862 Adam Price: You have made that case convincingly and, as far as I am concerned, you are pushing at an open door. This is a marketplace which includes buyers and sellers and it has to be looked at as a totality, does it not? Coming back to the 305 journalists that you have not identified, you have talked about criminal sanctions as the ultimate deterrent and I can understand that, particularly in relation to private investigators, but the newspaper industry or a part of it trades on destroying people's reputations, but it is very, very protective of its own reputation and that is why journalists do not tend to do stories about other journalists maybe. If some eminent former or current journalist is saying, "This is the biggest scandal that has attached itself to the newspaper industry", surely the best thing to do would be to publish those names, and those journalists which have a legitimate public interest defence can use that and The Observer can defend its corporate reputation, but, if there are journalists, as you suggest, who sanctioned purchase orders and invoices which clearly have the word "blagging", well, prima facie were they not involved in criminal activity?
Mr Graham: Not if the story was in the public interest.
Q1863 Adam Price: But that is the point, that they can say that, surely? How are we to know? Unless you publish those names, how will we ever know how far this went? I read a story in Private Eye that claims that an editor of a national newspaper was actually on the list. I do not know whether that is true. I have heard that another editor was on that list. Now, surely, when the editors, who are meant actually to be policing the Code of the PCC, are on the list, we need to know what is their defence and what is the background to this. This is very, very serious. If we cannot trust the newspapers, which are such an important part of democratic society, to obey the law, then that takes away one of the key foundations of democratic society, so it is actually very, very important. You have the information, so surely you should put it out there? You believe in freedom of information.
Mr Graham: Well, putting it out there, this is the sort of personal data which would be exempt from the Freedom of Information Act, so you cannot just say, "Well, we'll publish 305 names and see what happens". Under the Data Protection Act, there are a number of possible defences. Under the Regulation of Investigatory Powers Act, it is an absolute offence and there is not a journalistic defence. Where this story started on 9 July was all about hacking and phone-tapping, which is an offence under RIPA, and we now seem to be off in a completely different domain where the ICO cannot help you because that is not what we do, so we are now back talking about what we do do, which is dealing with blagging, but there is a public interest defence. I would say the only person who could say what the public interest defence of an individual story could be would be the editor or the managing editor of a newspaper, and I have been a managing editor and I know what it involves, but we do not even know what the stories were, never mind whether they were in the public interest. What I have suggested is that it would have been a good idea in December 2006, and it is not too late now, for the titles who were named in that report to get in contact with me and say, "We're very concerned that 35 or 45 of our journalists appear to have been dealing with this deeply suspect individual. Can we talk about it?" At that point, I would share with a properly authorised editorial figure in a newspaper group the names that were on that list just on the basis that that is what the situation appeared to be in 2006.
Q1864 Adam Price: Seeing as you have some kind of joint and shared responsibility, you have argued, with the PCC, why do you not engage in a joint approach with the PCC, sharing the news with the editors and asking the PCC as well to be involved with a proper new investigation as to what lies behind these individual requests and, if there are any which are dubious, then obviously further action may be necessary?
Mr Graham: We have a co-operative relationship with a number of bodies and those reports, What Price Privacy? and What Price Privacy Now?, suggested a programme of action for a whole series of other regulators, self-regulatory bodies, trade associations and so on, but you are focusing on the PCC. We do not have any formal relationship with them, but I just accept that they do press standards and we do data protection and, where those two things cross over, then we probably need to talk. You have already spoken to the Press Complaints Commission. I have said I am very happy to deal with editors who ring me up to find out more, but there is no question of my being able to give a blanket publication of 305 names that were doing something in 2006; that would be a breach of section 59 of the Data Protection Act and, for that, I am criminally liable and I am not going to do it.
Q1865 Adam Price: So a list of names that was possibly involved in breaching other people's privacy you cannot release because you would be breaching their privacy?
Mr Graham: Without lawful authority.
Q1866 Mr Hall: In your opening statement, I sort of got the impression that you were saying that the problem about blagging, hacking, tapping and illegal access to DVLA records was an ongoing thing which, it subsequently emerges, the private investigators are doing and not the journalists.
Mr Graham: The journalists never were. It was always the journalists ----
Q1867 Mr Hall: Who employed them.
Mr Graham: ---- as the clients of.
Q1868 Mr Hall: So they commissioned the work?
Mr Graham: The only evidence we ever had was of journalists commissioning the identification of individuals and their addresses, their ex-directory phone numbers, their friends and family details, their car registrations and other things.
Q1869 Mr Hall: Then you went on to say that in the Motorman case there was not any suggestion that hacking or tapping had taken place. Is that correct or did I misunderstand that?
Mr Graham: We have not got evidence.
Mr Clancy: There is no evidence whatsoever.
Q1870 Mr Hall: Have you reviewed the evidence that has been presented to you?
Mr Clancy: We looked at the evidence and the evidence clearly indicated that there were no transcripts of any calls whatsoever, it was just information in relation to telephone numbers, et cetera. They may have obtained those telephone numbers and subsequently hacked them, but we cannot say.
Q1871 Mr Hall: In previous questions from various members of the Committee, you then tried to establish the scale of the abuse that journalists carry out in this field, and the evidence that you have submitted to the Committee is that there is no evidence that you can see about whether this is an ongoing practice.
Mr Graham: There is no evidence that we hold beyond the evidence which contributed to What Price Privacy? and What Price Privacy Now? in 2006, which was well investigated.
Q1872 Mr Hall: I just want to be clear that that is what you said.
Mr Graham: I have not got anything else, so I cannot help you further.
Q1873 Mr Hall: So your evidence to the Committee is that the practice of private investigators continuing in this illegal activity is ongoing and is a serious problem?
Mr Graham: Yes.
Q1874 Mr Hall: But we do not know who the clients are anymore?
Mr Graham: Well, we know some of the clients because of the example we have given.
Q1875 Mr Hall: But they are not journalists?
Mr Graham: We have not got any further evidence of journalistic involvement beyond 2006.
Q1876 Mr Hall: Does that strike you as the news industry having actually cleaned up its act or as confirming the evidence that we have been given in this Committee that the government case was a one-off, rogue journalist acting ultra vires without the knowledge of his editor?
Mr Graham: But, if I could just say, that related to a different case.
Q1877 Mr Hall: It was a completely different case.
Mr Graham: That was the royal correspondent to the News of the World and that was hacking and tapping.
Q1878 Mr Hall: I know it is a completely different case, but we were told it was a one-off.
Mr Graham: I do not think it was ever suggested that the 305 journalists were a one-off, if that is possible. It was simply suggested that, since nobody seemed to know what the stories were they were engaged on, there may have been a public interest defence.
Q1879 Mr Hall: If you have read the transcripts of the previous sessions we have taken evidence, we have clearly had two editors, the former editor of the News of the World and the current editor of the News of the World, saying that the government case was a one-off. Mr Coulson, who was not aware that there were any, was surprised that there was one. Then, Mr Myler said that he had conducted a serious investigation and concluded that this was a solo incident, if you like. That is what has been said on the record, and my question to you is that he could have come and asked the Information Commissioner about the 305 journalists who are recorded as being engaged in some kind of activity, whether any of these other reporters were involved in that and that did not happen.
Mr Graham: It did not happen, but it was not the same thing. You were asking the News of the World management about the phone-tapping and offences ----
Q1880 Mr Hall: We asked them about a whole series of activities.
Mr Graham: Well, the answers that they gave you, as I read in the transcript, were in relation to whether Mr Goodman was a one-off or symptomatic and they said that this was a one-off and nobody knew about it, but that does not say anything about the 305 journalists.
Q1881 Mr Hall: Would they not ask the Information Commissioner whether the 305 journalists, which you have a record of, were employed by the News of the World?
Mr Graham: But they did not need to ask us because it was published in December 2006. There is a table in What Price Privacy Now? and it lists a total of journalists.
Q1882 Mr Hall: And who they work for?
Mr Graham: Yes, 305 journalists, and top of the list is the Daily Mail. There are 58 journalists or clients using services and the number of transactions positively identified was 952 and it goes down the list.
Mr Hall: Can you find the News of the World?
Q1883 Chairman: It is 23.
Mr Graham: This is all what you looked at in your last inquiry. It is 19 journalists or clients, 182 stories, the Observer with four journalists or clients and 103 transactions, so some very assiduous journalists on the Observer asking a lot of questions, but quality not quantity. All the way down the list, the News of the World ----
Q1884 Chairman: It is 23 journalists and 228 requests.
Mr Graham: I think these figures were updated somewhat after publication.
Q1885 Chairman: But 23 is the correct one.
Mr Graham: It is the correct figure.
Q1886 Mr Hall: So, just to clear another point which is made, when the PCC carried out their investigation into these in their general inquiry, they actually reached a conclusion similar to that reached by the News of the World, and you said in evidence that the PCC did not contact the Information Commissioner either to talk about individual journalists. Is that correct?
Mr Graham: Certainly the ICO was in contact with the PCC both before and after publication of those reports in 2006. We were not involved, so far as I know and I cannot think of any reason why we would be, in the most recent PCC investigation which was into the Goodman case which, I will repeat, was about hacking and not about blagging, so I would have been surprised if they had come to us and, if they had, I would have had to say, "Can't help you, chum".
Q1887 Mr Hall: Because you see a very distinct difference, do you not, between the way you get information? Do you think that blagging is fine and hacking is not?
Mr Graham: No, I can see there is a journalistic ethics story that is common to the two and I can see that there are issues about who knew what when, but, as Information Commissioner, I have got nothing to offer you on that because we are there to uphold the Data Protection Act and we are not there to deal with the Regulation of Investigatory Powers Act, so we cannot do tapping and hacking, but we can do blagging.
Q1888 Mr Hall: On the 305 journalists who have actually been cited in evidence this afternoon and the refusal of you to publish the list, am I understanding this correctly, that you are refusing to publish this list because to do so would breach their rights to privacy when these 305 journalists have been involved in breaching everybody else's privacy?
Mr Graham: No, I am refusing to publish because it is personal information under the Data Protection Act and I would be in breach of section 59 thereof and committing a criminal offence without lawful authority when I have not seen the lawful authority, and I really am anxious, Chairman, to invite the Committee not to shoot the messenger. The Information Commissioner has blown this thing wide open ----
Chairman: I think we have just about covered this.
Q1889 Paul Farrelly: I am in somewhat of a difficulty, like other members of the Committee, in making judgments about your judgment because, unlike the Chair, we have not seen the files, but I understand that, for ease of filing, the ledgers are coded blue, green, red and yellow; primary colours plus one, as it were. Can you tell us what the green, red, blue and yellow refer to?
Mr Clancy: It is various newspapers.
Q1890 Paul Farrelly: Can you just identify the groups by colour?
Mr Clancy: Off the top of my head, no, I cannot do that.
Chairman: I think yellow was the Mail and the Express, blue was the Times, the Sun and the News of the World, green was the Mail and the Express, and red was the Mirror Group Newspapers. I think we have probably finished our questions, so thank you very much.
Witnesses: Assistant Commissioner John Yates QPM and Detective Chief Superintendent Philip Williams, Metropolitan Police Service, gave evidence.
Q1891 Chairman: Can I welcome you to the second part of this session. When the Guardian published their first story, you were asked to conduct a review and you concluded that no new information had been obtained and there was no reason for you to reopen the investigation. You concluded that review in a remarkably short space of time. Can you assure us of how thorough that review was?
Mr Yates: Would it be possible, Chair, just to make a few opening remarks in the first instance?
Q1892 Chairman: Yes.
Mr Yates: I am grateful for the
opportunity to come here to provide some clarity, I hope, from a police
perspective on a number of issues that have arisen since the Guardian story was published in July of
this year. I think it is worth
emphasising from the outset that the Guardian
article talked about three entirely separate issues both in time and
context. You have heard about Operation
Motorman, and the related crunch investigation, Glade, was our investigation
and there was the civil action in 2007.
As I said previously, there is essentially nothing new in the story
other than to place in the public domain additional material which had already
been considered by both the police investigation into Goodman and Mulcaire and
by the CPS and the prosecution team.
There was certainly no new evidence and, in spite of a huge amount of
publicity and our request of the Guardian
and others to submit to us any additional evidence, nothing has been
forthcoming since. You will also be
aware as I think you have had a letter from DPP Keir Starmer who separately
conducted his own review into the prosecution strategy in the Goodman and
Mulcaire case, and for further reassurance he asked leading counsel, David
Perry, to consider whether there was additional material that ought to have
been subject to further investigation, particularly the Neville email, and he
has written to you on 30 July and he makes it quite clear that he neither
thought it appropriate to reopen the case from the prosecution perspective nor,
importantly, to invite the police to reopen our investigation. Just turning to our investigative strategy in
the case, you have had a very full note from us which I do not intend to go
through of course, but I would just highlight some of the issues in terms of
our investigative strategy in this case.
It was based on the premise of to prosecute the most substantive
offence. You have heard from the
previous witness that, based on our advice, section 1 of RIPA, the Regulation
of Investigatory Powers Act, thus intercepting or hacking, I will call it,
voicemail messages, using that power was envisaged to be the simplest, most
clear method to present to the court the most cogent evidence and it is of
course the one they had the greatest sentencing powers with, so that was the
principal strategy around that. There
was then of course the technical evidence.
We wished to ensure, in order to secure the confidence and support of
victims, that their voicemails would not be played in court and we wanted to
secure technical data, the best data possible, to ensure that we could prove
the case and not by the revelation of private conversations. Then there is the case law, and this is
rarely used. This was the first
prosecution of its type in terms of voicemail messages, so success was clearly
dependent upon having overwhelming and unambiguous evidence in this case. There were then numerous technical challenges
around the way that the various phone service providers operate, and they all
operate in a different way, and their basis was not to provide data which had
integrity in terms of evidential process and they have business reasons around
the way they use their data, so we had to find a way which would get the data
out that had integrity to ensure there could not be found ways round it through
a court process. The victims were the
next issue. One of the key aspects of
the case was to ensure we had sufficient victims and a breadth of victims to
reflect the overall criminality in the case and to ensure that the court had
adequate sentencing powers around those issues, and then there are the
suspects. In 2006 and again more
recently, we have been invited to say whether there were more suspects in this
case, and I would hate to think that anyone thought that we were avoiding any
aspect around other editors or other people who may be related to this case. I found a letter only this morning in terms
of these matters where we clearly set out to the solicitors acting for the News of
the World, and this was in September 2006, a range of issues that we
wanted them to disclose to us, and we finished the letter by saying, "The
investigation is attempting to identify all persons that may be involved,
including fellow conspirators". One of
the bullet points we looked for was: "Who does Mr Mulcaire work for? Has he completed work for other editors and
journalists at the News of the
World? Can we have a copy of any other records for
work completed by Mulcaire for these editors and journalists, including the
subjects on which you might have provided information?" There was a very clear strategy set out from
the start to ensure that we covered all those bases if there was evidence in
the case. Our job, as ever, is to follow
the evidence and to make considered decisions based upon our experience which
ensures limited resources are used both wisely and effectively and, supported
by senior counsel, including the DPP, the collective belief is that there were
then and there remain now insufficient grounds or evidence to arrest or
interview anyone else and, as I have said already, no additional evidence has
come to light since. What has been
achieved, lastly? An individual's right
to privacy against the media's right to publish in the public interest will
always remain a matter for debate and they can often clash, but this
investigation into an interception of this nature was the first of its kind in
Q1893 Chairman: Yes, that is helpful. The evidence which the Guardian produced and indeed gave to this Committee actually came from you originally. It is evidence that was handed over to the court from the police investigation ----
Mr Yates: Yes, it was unused material.
Q1894 Chairman: ---- which reached the Guardian. The key one, which you will be familiar with, is the email and this is the transcript for Neville. Why did you not think that it was sufficiently important to interview Neville?
Mr Yates: Well, again we took advice on
this and it did form part of the original case and formed part of, what we
call, the sensitive, unused material.
There are a number of factors around it, some practical issues. Firstly, the email itself was dated, I think,
Q1895 Chairman: Sorry to interrupt, but you say there is nothing to say whether Neville had read the email, but you could have asked him.
Mr Yates: Well, if I can finish, there is no clear evidence as to who Neville was or who is Neville. It is supposition to suggest Neville Thurlbeck or indeed any other Neville within the News of the World or any other Neville in the journalist community. Mulcaire's computers were seized and examined. There is nothing in relation to Neville or Neville Thurlbeck in those computers and, supported by counsel latterly and by the DPP, they both are of the view, as we are, that there are no reasonable grounds to suspect that Neville has committed any offence whatsoever and no reasonable grounds to go and interview him.
Q1896 Chairman: Well, it does seem an extraordinary coincidence though that somebody working for the News of the World sends an email, saying, "This is the transcript for Neville" when the chief reporter of the News of the World is called Neville and you think that this is not sufficient to ask Neville Thurlbeck whether he is the Neville referred to in the email.
Mr Yates: Well, there is no evidence of an offence being committed, which is what I said first. There is no evidence. Reading that document is no evidence of an offence. There is no evidence that there are any other links between Neville, whoever he may be, and Mulcaire. As I say, we looked at his computers, so it is not as if we ignored this, but we looked at all of his computers, looked for the links in terms of any contact and there is no contact. As I say, both our view and the advice of leading counsel and the CPS was that there were insufficient grounds to certainly arrest or question; it would not take us any further.
Q1897 Chairman: The judge in the trial actually states that Glenn Mulcaire was working for others in the News of the World besides Clive Goodman.
Mr Yates: Yes.
Q1898 Chairman: But, despite the fact that that was the clear conclusion of the court, you ----
Mr Yates: It is not quite like that. He said "worked with others". Well, of course he worked with others because that is his job. He is a private investigator and he works with journalists. He is going to be working with a number of other people.
Q1899 Chairman: Let me give you an example. You knew that Mulcaire was illegally accessing the phone messages of a number of other individuals besides the people working in the Royal Household. Did you not seek to establish who on the News of the World might have been commissioning those intercepts?
Mr Yates: Well, we sought the information that I have read out of the letter which I can probably redact with sense and give to the Committee to see, so we did seek those issues from them and they said that there was no information there. Now, to go further, we have got to have very strong grounds to further suggest that they are misleading us and there were no grounds on that. With all investigations, you have to set parameters as to what you are trying to prove and as to what is the proper use of resources to prove that. You would be the first to criticise us if we went off fishing somewhere because it seemed like a good idea, but we have got to actually have evidence to follow and to go through, so we are limited. There was a prosecution strategy, it was not just a police strategy, it was a prosecution team strategy, which said, "These are the eight people we're going to concentrate on. That reflects the full extent of the criminality and that gives the court the greatest sentencing powers if there is a plea of guilty or if they are found guilty", and that is the way the decisions were taken in 2006.
Q1900 Chairman: One of the reasons given by the Director of Public Prosecutions to us is that, in order to prove a criminal offence, you have to demonstrate that the phone message was intercepted and listened to before the intended recipient had himself opened and listened to it, and that was the criminal act. That is correct?
Mr Yates: Yes, the analogy is the envelope and the opened letter. It is not an offence to read the opened letter, but it is an offence to open the letter and read it, and that is the analogy.
Q1901 Chairman: However, let us say that somebody is accessing my voice messages and, therefore, if they get to that voice message before I have got round to listening to it, they are committing a criminal offence?
Mr Yates: Yes.
Q1902 Chairman: If I happen to have listened to it and not deleted it and they then manage to access it, that is perfectly legal?
Mr Yates: It is a breach of privacy. I am not sure it is legal, but it is certainly no offence under section 1 of RIPA.
Q1903 Chairman: This may be going slightly beyond your remit, but do you not think that is completely ridiculous?
Mr Yates: Well, I suppose you could take a view on it, but we are only dealing with what the law states and what we can do in terms of the evidence in terms of building a case.
Q1904 Chairman: I understand. Can I, finally, ask you about the notification of those many people where there was evidence that their phones might have been hacked into. There appeared to be some confusion as to how many of those were notified and when.
Mr Yates: If I take it from the start, all those subject to the indictment are clearly aware obviously. A number of other people who were approached as potential witnesses, but chose not to provide evidence for whatever reason, they too were aware. Then we looked at a system with the phone providers, and the decision was taken in 2006 and I have no reason to doubt them now, where we looked at certain sensitive areas, people in government, people in sensitive public positions, royal, military, police and the like, where there was a suspicion that they had been hacked or otherwise had their privacy breached where we would contact them, which we did. Then the service providers contacted other ones in the same sort of category that we were looking at who, they believed, had been hacked or otherwise had their privacy interfered with. They contacted them and, if they felt there was a greater degree of interference which merited further police investigation, then they came back to us, and there was one case where that happened which formed part of the indictment. Since July 2009, you will remember that at the end of my statement I said I was concerned as to had anything fallen through the net, and we had been following a very, very tight strategy around analysing whether something could have fallen through the net. There may have been a couple, it is a handful of people potentially, and we have gone back and worked with the phone companies again on that, and one of them of course was Andy Coulson who himself declared that he may have been subject to that type of activity, but it is very few, it is a handful, and we are still going through that process now.
Q1905 Philip Davies: Just going back to the point about Neville Thurlbeck, I am obviously not a police officer, you are the experts in these matters and I certainly do not want to presume that I know more about these things than you do because I do not, but, given that Clive Goodman was the royal reporter and there was evidence that phones hacked included those of people who were not in the Royal Family, would it not be a fairly easy conclusion to come to or proposition to make that perhaps, if he is the royal reporter and there are other people's phones being tapped, there must be other people at the News of the World involved in this activity? Would that not be an early presumption that the police would make if investigating this?
Mr Yates: I think we made the presumption and the assumption that he was involved with numerous journalists from many newspapers and other outlets. All the evidence and material we seized from his home address indicated that that was his job. Whether it breached into the lines of illegality is a different matter, but he was a private investigator and you would expect him to have snippets of information and sometimes he had just a name, sometimes he had a date of birth, sometimes he had an awful lot of information around individuals, but that is what his job is. Our job was to follow the evidence around section 1 of RIPA, which is fairly narrow, fairly well defined and fairly challenging to prove.
Q1906 Philip Davies: Sure, I appreciate all that, but, given that you had the name "Neville", this idea that he did not say which Neville it was and it could have been any Neville, how many Nevilles were working at the News of the World at the time? Did you look into it and come across a huge list of Nevilles at the News of the World when you were carrying out the investigation?
Mr Yates: I can absolutely see where you are coming from and where the Chair is coming from on this, but we are looking at using our resources wisely and effectively. I would say it is 99.9% certain that, if we were to question Neville Thurlbeck on this matter, he would make no comment. That was the position of every other journalist we spoke to during this inquiry. It was the position of Mulcaire, it was the position of Goodman and they made no comment. I have no evidence to put for him other than the fact that this is a Neville, that he has not read it and we know that he has not read it because it has not been transmitted by Mulcaire to Neville Thurlbeck. I can see where you are coming from, but we are making the decision based on where the evidence is going to be and where we are going to get the proof for a case to put before a court. The decision taken at that time was that it was not a viable line of inquiry and, I have to say, it has been supported by leading counsel and the DPP recently.
Q1907 Chairman: You could have asked the author of the email. We know precisely who he is.
Mr Yates: Who, Mulcaire or (?)?
Chairman: No, the individual employed by the News of the World whom we have not named at the request of the Guardian, but you know who it is because it is on the top of the email.
Q1908 Paul Farrelly: He has just been named.
Mr Yates: I did not mean to.
Q1909 Chairman: Well, you could have asked him.
Mr Yates: We could, and I can ask my colleague whether we did or not.
Mr Williams: No, we did not speak to him, but it comes back actually that, as part of our investigation strategy, we were asking the News of the World to supply more information pertaining to Mulcaire, his employment, his records of work, who he worked for and what stories he worked on, as was said, and any editors or journalists that he worked for because this was an ongoing process and we wanted to understand the whole picture. What it came back to was the News of the World saying, "No, there was no information" and, therefore, we were left in isolation, literally, with that document which, when you look at it, is not enough in evidence to pursue, which is where we have ended up.
Q1910 Philip Davies: Whether you think it is worth reopening this again at this stage is a separate matter, and you may well be right that, based on what you have seen, it is not, but would you not at least concede that, in reviewing it thoroughly, perhaps at the time it would have been best practice if the police had spent a bit of time having a chat with Neville Thurlbeck on the basis of the emails that you had in your possession?
Mr Yates: In 2006 that may well have been the case but it is concentrating on using your resources properly. We would make a professional decision based on our experience, which collectively is quite considerable, that that is going to take us absolutely nowhere; therefore we were concentrating on using the resources that we do have in the areas where we are going to find the evidence. That is not going to take us anywhere. That was the decision taken at the time. Certainly, in 2009, I was absolutely of the view that it was not new; it was considered at the time by counsel, and there was certainly no value in reopening it.
Q1911 Mr Sanders: I will move away from Neville-Neville Land and come back to what actually happened when the Guardian wrote this story. There was a lot of excitement and then, almost within a matter of hours, it was announced there had been a review and that sort of killed it. Can you explain to the Committee how that review was undertaken?
Mr Yates: Firstly, it was not a review. The Commissioner asked me to establish the facts, two entirely separate exercises. A review involves a thorough -----
Q1912 Mr Sanders: Hang on. It was very clearly reported as a review and I am almost certain I heard a police officer on television refer to it as a review at the time.
Mr Yates: I absolutely guarantee the word "review" was not mentioned that day.
Q1913 Mr Sanders: So where has the media got the idea that there was a review? Do you think they tapped somebody's phone and got it?
Mr Yates: I have no idea. I was so clear on the day, through both my statement and through other means, that I was asked to establish the facts. In police circles, and no doubt in journalistic circles, a review has a completely different sense, which is a focus. Sometimes it is a forensic review, sometimes it is a complete review, but that involves a lot of work and a small team of people. I was asked to establish the facts by the Commissioner, and indeed if you read the transcripts of that day you can see absolutely clearly I was asked to establish the facts. I made a note to myself on that day as to what I was actually doing, what I was actually going to consider. I looked at the scale, the scope and the outcome in terms of the original case. I considered the level of liaison there had been with CPS and senior counsel and any advice they had provided. Clearly that was considerable.
Q1914 Mr Sanders: Did you consult with counsel at that time?
Mr Yates: No, I did not.
Q1915 Mr Sanders: So you just went back over what had been the -----
Mr Yates: There were a number of other considerations that I made. I considered the approach adopted by the prosecution team in their papers, what were they actually focused on, and it was those eight cases. I considered the amount of complexities and challenges around the evidence then and what evidence would be available now, particularly in relation to the availability of the data. I considered the level of disclosure and who would review the material. In this case senior counsel had reviewed the material. I considered how the case was opened after the guilty pleas. I considered whether there was anything new in the Guardian articles in terms of additional evidence, and I considered finally our approach to the victims, how they were managed and dealt with and the impact of further inquiries, if they had been necessary, on them, and I came to the view, and I appreciate you all thought it was rather quick, that there was no new evidence in this case. It was a conflation of three old stories.
Q1916 Mr Sanders: And this was an exercise you alone conducted?
Mr Yates: No, I did it with Philip and the team and the original team. We sat down for a number of hours that day and went through these points.
Q1917 Mr Sanders: How many hours that day? What time did you start this process?
Mr Yates: It was a number of hours. I did not record it, but I came to the view -----
Q1918 Mr Sanders: It presumably was not on your agenda that day.
Mr Yates: No. The diary was cleared that day, as you would imagine.
Q1919 Mr Sanders: At some point the diary must have been cleared. At some point somebody took a decision, in the light of this new story, "We have got to look at this again".
Mr Yates: It was fairly early on in the day. I gave this considerable thought in terms of what was new and was there any --- the principal point is, was there any new evidence, and the answer was there was not, and I have to say, whilst I came to the view fairly quickly, subsequent events, subsequent views of the DPP, subsequent views of senior counsel who had reviewed the material, had concurred with my view.
Q1920 Mr Sanders: At what time in the day was an announcement made to the media that this exercise was being undertaken?
Mr Yates: I think Sir Paul Stephenson had announced it up at the ACPO conference round about that morning, I cannot remember, but he certainly had a very early conversation in the morning with me. I cannot remember what time because I did not deem it relevant then, but it was a very early in the morning conversation.
Q1921 Mr Sanders: And at what time -----
Mr Yates: You are trying to find out how many hours I spent on this?
Q1922 Mr Sanders: I am trying to get to the point of what time that day you then announced that this process had been completed.
Mr Yates: I think it was late --- it was early evening. I think it was five-ish.
Q1923 Mr Sanders: What sort of relationship does the Metropolitan Police have with the News of the World?
Mr Yates: Cordial, professional, as we
do with all the media outlets, both
Q1924 Mr Sanders: Is the News of the World a newspaper you consider is more or less helpful than other newspapers in helping the Metropolitan Police with some of the inquiries they have to undertake?
Mr Yates: I think all newspapers can be extraordinarily helpful in terms of some crime inquiries, but I think -----
Q1925 Mr Sanders: That is not what I asked. Is the News of the World more or less helpful?
Mr Yates: I would not like to give you a view on it. If you look at some of the coverage we have from newspapers, particularly the News of the World, occasionally, it is pretty brutal.
Q1926 Mr Sanders: I am not asking about how they portray you. I am saying is the News of the World more or less helpful with the Metropolitan Police in terms of the relationship that you have, in terms of the information that can be exchanged?
Mr Yates: We have a very professional relationship at a number of levels - with the Crime Reporters' Association, which is at the more tactical level, all the way up to the senior executive level in terms of people like the Commissioner and myself. It is a professional, objective relationship where we will seek their help on a number of occasions and get their help on a number of occasions with serious crime matters when we are seeking information, and, quite rightly, they will hold us to account when we are perceived or otherwise to have made misjudgements. If you look at the G20 recently, if you look at the coverage of G20, what the News of the World gave us then, pretty brutal.
Q1927 Mr Sanders: In terms of the information that is passed do you, do you ever question how that information may have been obtained by a newspaper?
Mr Yates: In what sense?
Q1928 Mr Sanders: If you want to tap somebody's phone you have to go through a process.
Mr Yates: Yes, we have to get a Home Secretary warrant. I am not sure what you are suggesting.
Q1929 Mr Sanders: I am asking whether you ever question how a newspaper that gives you information may have obtained that information.
Mr Yates: Of course we have to.
Q1930 Mr Sanders: What if that information had been obtained illegally?
Mr Yates: In supposition terms, any investigation would uncover that. You would have to source where the information came from in order to present it into a court, and if we had uncovered that it had been sourced illegally then, of course, we would have to deal with that.
Q1931 Mr Sanders: That is if it formed part of the evidence.
Mr Yates: If it formed part of anything. We are dealing in supposition anyway so I cannot ---
Q1932 Mr Sanders: Going back to when somebody listened to a recorded message that the original recipient had already listened to themselves, you suggested that that is not an illegal activity.
Mr Yates: No.
Q1933 Mr Sanders: But, surely, that they are listening to something without permission --- in a sense, if I wanted to see something in your file that you did not want me to see but I somehow was able to see what was in that file, surely an offence has been committed for me to see what was in that file.
Mr Yates: It is not an offence under RIPA but it is a breach of privacy, which my colleague here -----
Q1934 Mr Sanders: Would that not be under the human rights legislation?
Mr Williams: It is actually under the Misuse of Computer Act, which is one of the other offences that we considered, but, similar to the previous witness in terms of data protection, there are those three bits of law that cover broadly what is happening. Misuse of computer essentially is someone unlawfully gaining access to data that they should not have. The voicemail, being data, with it comes a sentence of six months and a fine, so it was considered in our case as one of the potential offences but the substantive offence that reflected the seriousness, the gravity, of what we were dealing with, was clearly the section 1 interception offence.
Q1935 Mr Sanders: So you could be fined. Has this ever been tested in law? Has anybody ever been --- you might not know the answer to this, but has this ever been tested in law?
Mr Williams: You mean the misuse of a computer?
Q1936 Mr Sanders: That offence, in relation to voicemail.
Mr Williams: As far as I am aware, no. There have been cases of misuse of computer. It gets quite complex in proving what is data and that again was one of the reasons, when we liaised with the CPS, that in terms of simplicity, of presenting something clear and unambiguous before a court, section 1, interception, was something where everyone, we hoped, would readily grasp exactly what was happening and it would be clear what we were trying to prove, and it was by far the substantial offence that would give a court the greatest powers.
Q1937 Paul Farrelly: I just wanted to say that the written statement that there is no new evidence is not going to get us very far because that is a circular argument and because the Guardian's evidence has come from what is in your files in the first place and in Motorman. The question really is, whilst we all appreciate the need for case management with limited resources, what evidence was there and whether it was acted upon, and, if not, why not. It does seem quite extraordinary to offer a justification that the chief reporter was not interviewed, nor the junior journalist who wrote the email, whom you have named as Ross Hindley, because they would have said, most likely, "No comment", and I imagine that if that was the approach to all police interviews we would not be getting very far.
Mr Yates: That was a secondary point, Mr Farrelly. The first point was that there was no evidence to put to them and there were no reasonable grounds to question them. That was the point that both counsel for the CPS and ourselves came to the view on.
Q1938 Paul Farrelly: But there is a series of transcripts of telephone conversations.
Mr Yates: The secondary point is that, in terms of where was it going to take us in terms of proving the prosecution's strategy at that time, that was where we chose to go then. I concede what Mr Davies has said: perhaps in 2006 it ought to have been done; I do not know, but in 2009 that is going to take us absolutely nowhere.
Q1939 Paul Farrelly: Could I ask Detective Chief Superintendent Williams what Clive Goodman and Glenn Mulcaire's first comments were on the August date when they were hauled in front of the police? Was it "No comment", or did they plead guilty immediately?
Mr Williams: I cannot remember what they replied to caution, but through all interviews it was "No comment". In fact, they have never made a comment to us.
Mr Yates: As I opined in the trial.
Q1940 Paul Farrelly: We all have a problem with the words, of course, that are on your card, but we have all heard on the tele, "You may exercise your right to silence although this may effectively be held against you", which would put the fear of God up me if I were unwilling to co-operate, but there is also the issue of interviewing people not as suspects under caution but as witnesses. It strikes me as extraordinary, given that this email existed with transcripts of telephone conversations, which was the very thing that you were investigating following the concerns that had been raised by members of the royal household, that these people and the editor and the managing editor who was authorising the payments to this person were not interviewed even as potential witnesses. Can you explain why that was the case, Chief Superintendent?
Mr Williams: After the arrest and having discovered this material, and it was not all discovered, - yes, obviously, it was discovered on the day of the search but it then had to be searched through and analysed - we did go through a process of seeking to explore who else knows about this. Now that the whole investigation was overt, as it were, people were aware of exactly what we were after, we were quite open in terms of exploring who else knows about this. We had a list of things that we wanted to understand. We did consider getting things like legally something called a production order which would give us the authority to go in and require material. Again, we came up against what grounds did we have to ask for that material. With CPS and counsel advice we went through a process of co-operation with the lawyers representing News of the World. We quite clearly set out the range of material that we wanted to have access to, including things like an understanding of how their internal phone system worked. We asked for plans so that we could put a telephone on a desk in different offices because, as was already read out, we were open to the potential were there other people who were involved in this conspiracy because we were looking to explore all of that. That process went on over a number of months. The replies that we eventually got, I can quote some of them -----
Mr Yates: Would it help if I briefly - it will take less than 30 seconds - read out for the record what we sought from the News of the World? This was obviously dealing with their lawyers on a lawyer-to-lawyer basis. We sought a copy of all documents relating to the contract for the employment of Glenn Mulcaire and his company, Nine Consultancy Ltd; any record of work completed in respect of Mr Mulcaire; how is the return of work for Mr Mulcaire's weekly retainer confirmed; who does Mr Mulcaire report to; who does Mr Mulcaire work for; has he completed work for other editors/journalists at the News of the World; can we have a copy of any other records for work completed by Mulcaire for these editors/journalists, including subjects on whom he might have provided information; can we have the details of the service providers for the telephone systems installed in the offices where Clive Goodman works; details of the floor plan, to include the locations of telephone extensions in the office where Mr Goodman works; details of the phone used regularly by Clive Goodman, ie, the number of the phone on his desk or any mobile issued to him by the company; and, lastly, itemised billing of the phones used regularly by Goodman, ie, the phones on his desk or the mobile phones, for the period 1 December 2005 to 8 August 2006. As I said, the investigation was attempting to identify all persons that may be involved, including fellow conspirators, so we were not exactly ignoring it.
Q1941 Paul Farrelly: No. Can I ask you whether, from your memory of the investigation at the time, Detective Superintendent Williams, you got truthful and satisfactory replies to those questions from News International?
Mr Williams: I can tell you we got written
replies. I can quote what they said: "No
documents exist recording any work completed by Mr Mulcaire, monitoring of Mr
Mulcaire's return of work, reporting structure of any persons for whom Mr
Mulcaire may have provided information.
There is no floor plan. The
telephone system installed at News Group Newspapers does not provide an
itemised breakdown in respect of any particular extension number. We note with concern your assertion that you
seek the telephone numbers of persons called before and after relevant unlawful
calls. It is highly likely that such
information will amount to confidential journalistic material." What I would say is that they answered our
questions by and large by saying, "We do not have it". As I explained, we were exploring two routes:
a production order to get this, which we have to do and go before a judge for
and there is a set of criteria we need to meet.
We were also looking on the financial side and I had financial
investigators pursuing that side. I
suppose it would be fair to say that these are solicitors representing, so they
are acting within the law. It would be
fair to say they are being robust, they are meeting what they need to meet in
terms of their legal requirements, and indeed we did get financial material and
documents relating to Goodman and Mulcaire, which indeed were part of the
prosecution case, but their answer, as you have heard, to these other things
was no, so when it comes to us considering everything in the round and we look
at this other material, I have to consider where is this taking me in my
investigation. Also, I look to what is
it I am seeking to achieve, and I was very conscious, as Mr Yates has said in
his opening, that this is an area of great public concern. There is always, as we have heard with the
previous witness, this issue of public interest. Obviously, if I can find evidence I will
pursue it; my team are very tenacious in that, but what I wanted to be clear
about was to present a case that once and for all would clearly say, "This is
wrong. It is criminal and you will go to
prison", because it would be the first time that this clarity had actually been
produced. The other thing that I was
very clear about was that, yes, this could very well be widespread potentially,
and for everyone, all of us in this room and in the
Q1942 Paul Farrelly: And, of course, it all comes down to what the inquiry was seeking to achieve, of course.
Mr Williams: Exactly.
Mr Yates: In 2006.
Q1943 Paul Farrelly: And that prefaces everything, but I can imagine that you would certainly want to be tenacious, given replies like that from News International's lawyers, particularly with respect to the existence of documentary evidence that now seems, after the fact, to be untruthful, quite plainly.
Mr Williams: I cannot say whether that is --- their replies are official replies from the solicitors. I am in no way saying they are untruthful.
Q1944 Paul Farrelly: We know, because you found out from documentary evidence, for instance, that there are records showing authorisation of expense payments to Clive Goodman.
Mr Williams: Oh, no, they provided those. I was obviously interested to know who else was involved in this, what other records do they hold.
Q1945 Paul Farrelly: And they were authorised by the managing editor, Stuart Kuttner. Presumably, if you wanted to examine how far-ranging the conspiracy was, you would not simply be satisfied with Clive Goodman's or Glenn Mulcaire's assurances that nobody else knew. You would want perhaps to go and interview the person who was authorising the payments to get his version, but that interview never took place.
Mr Williams: No, because we were going down the line of what the law requires us to do, because I was considering using the law, production orders, to get this information. Therefore, again, I admit, I was not deciding this in isolation. I had legal advice around this and therefore the process was through this co-operative route, through the lawyers appointed by News of the World, and therefore I have to ask for what I want, and they undertook that they were much willing to support the inquiry, and obviously we know what their replies are.
Q1946 Paul Farrelly: Can I just ask you which unit of the Metropolitan Police you were in?
Mr Williams: I was then in what was the Anti-Terrorist Branch. It is now the Counter Terrorism Command.
Q1947 Paul Farrelly: Was that the unit that originally took up these inquiries?
Mr Williams: It is, yes.
Q1948 Paul Farrelly: They were special operations?
Mr Williams: Yes, specialist operations.
Mr Yates: Do not forget the inquiry started in terms of the royal family.
Q1949 Paul Farrelly: Yes, which is special operations.
Mr Yates: And my remit is sensitive inquiries around those sorts of matters. That is why it was in that unit.
Q1950 Paul Farrelly: And decisions on the future of case management are not taken in isolation, I can imagine that, and there is a senior management team that convenes Monday, Wednesday and Friday, I understand.
Mr Williams: I would say there was extensive oversight on this case, and interest.
Q1951 Paul Farrelly: And I can imagine your Public Affairs Director - I have been in Italy; forgive me if I pronounce this wrongly - Dick Fedorcio, may have really in those meetings counselled against having a wide-ranging war against such a powerful news organisation rather than just nailing it down to a specific case involving as few people as possible.
Mr Yates: It is a nice leading question but no, that would not happen. These types of cases are not discussed at management board in that level of detail. They are then managed outside with some senior oversight; it might be someone like myself, to manage what we call a goal group. It is the common parlance. They do not get discussed in that level of detail. I was on the board at that time and I do not recall it ever being considered at that level.
Q1952 Paul Farrelly: Again to Mr Williams, can I ask you why you
telescoped the period of the charges?
Originally it was from
Mr Yates: I will explain in detail, and we are grateful that you gave us some foresight of that question because we can certainly help with a little diagram which I will pass round. It really says that what we were trying to prove was that there was a conspiracy between Mulcaire and Goodman and the period of time that that took place. We have got a little chart - here's one we made earlier - which will help you, and Phil will take you through it.
Mr Williams: Can I just check - where you say it has been telescoped, are you referring to having read -----
Q1953 Paul Farrelly: It was amended in court.
Mr Williams: The indictment?
Q1954 Paul Farrelly: Yes, the indictment was amended.
Mr Williams: It was amended, yes. Strictly speaking, the CPS and counsel actually finalised the indictment. It went through a number of different iterations. I think the straightforward answer is that it was changed because, having gone to a guilty plea, Mr Perry was presenting the evidence that specifically related to two bits - the conspiracy, which was between Clive Goodman and Glenn Mulcaire, which was predominantly around the royal household members, and, as he said in his opening, that essentially was over the period November to June. The only reason that we had evidence relating to Helen Asprey going back to February is that, when we were doing the initial inquiries, that was how we first came across that there was someone else other than Goodman, which led us into Mulcaire. In terms of that period, if you look on the diagram, and I am just saying this is the best evidence we presented in court, the period from February to October is really a period where Mulcaire, using his office number, was doing potential interception. Our case was first covered around the conspiracy and working together and the best evidence of that starts in November. It was purely changed to reflect what evidence we were presenting to the court.
Q1955 Paul Farrelly: One of the mysteries of this case is, on counts 16-20 which involved five people who are not royals and in which Clive Goodman was not involved, to whom Mulcaire was passing these intercepts. From your inquiries, given that there were five guilty pleas on these separate offences, do you have evidence or grounds for suspicion that Mulcaire was passing these intercepts in those cases to other journalists at News of the World?
Mr Williams: We have no evidence as to who he was doing those inquiries for and whether anything ever came of it. Again, in terms of informing you, all I can point to is the mitigation factors presented by his own counsel, which was that he may have been working on those people but there were no stories forthcoming and he never got anything as a result of it, which is what was put forward pre-sentencing.
Q1956 Paul Farrelly: So you did not pursue that any further?
Mr Williams: There was nothing that we found that presented it, but what I would argue is that I was pursuing it in the things that I was asking of News of the World because I was asking, "What do your records show at the other end? Who is it that Mulcaire is working for? Which journalist is he working for? Which editors? What stories have come out of his work?", so I was asking for all of that.
Q1957 Paul Farrelly: In your file of other evidence, unused evidence, do you have any, for instance, tape recordings of Glenn Mulcaire talking to other journalists at News of the World who he refers to by a name but the identity is not immediately clear?
Mr Williams: I have no evidence that he is talking to anyone at the News of the World.
Q1958 Paul Farrelly: Do you have any tape recordings?
Mr Williams: There are tape recordings, yes.
Q1959 Paul Farrelly: Where he may have been talking to other journalists at the News of the World?
Mr Williams: I do not know.
Q1960 Paul Farrelly: But there are tape recordings in the file?
Mr Williams: They are on tape recordings.
Q1961 Rosemary McKenna: I am sorry but I have to get a flight soon, so, just very quickly, is it normal practice to write to organisations with questions?
Mr Williams: It is, yes.
Mr Yates: Certainly when it is talking about potentially going into confidential journalist material, yes.
Q1962 Rosemary McKenna: It would not be in the first instance an interview with, say, the editor or the managing editor?
Mr Yates: No. Looking at the range of material we are after, it is perfectly normal practice for it to be on a lawyer-to-lawyer basis or investigation team-to-lawyer basis, particularly around the sensitivities with confidential journalist material where the first thing the editor would say would be, "Please speak to our lawyer".
Q1963 Rosemary McKenna: It just seems to me most unusual that you would not just go and speak to the managing editor or the editor and try and establish, you know, --- it does give them some time to consider their answers, does it not, if you write to them?
Mr Yates: We treat each case on its merits and this was a case where it would certainly be on a lawyer-to-lawyer basis.
Q1964 Rosemary McKenna: You did not consider speaking to the individual who actually signed off the payments? It was huge sums of money they were being paid. It was not considered that you would speak to the person actually authorising those payments?
Mr Williams: Which payments were these?
Q1965 Rosemary McKenna: To Mulcaire.
Mr Williams: What? His contract and -----?
Q1966 Rosemary McKenna: The total amount of money that was paid to him, all of that.
Mr Williams: As I understand it, in terms of the cash payments they had a practice of it was Goodman who was making the payments.
Q1967 Rosemary McKenna: Yes, he made it a habit. That was signed off.
Mr Williams: He would be saying, "I have got this story. I am paying £500", as it was, "to this person, using a pseudonym".
Q1968 Rosemary McKenna: Yes, but the overall amount of money that was being paid to this person was absolutely enormous. Do you not think there would be various speaking to more senior people about the amount of money that was being paid?
Mr Williams: Yes, but, again, what I needed to know was the answer to a lot of the questions I put in to them: exactly who was he working for, who was he working to, who were the editors that he was working to, so that then, when you go to speak to someone, you have a basis for a conversation and hopefully you have some documents that you can put to them.
Q1969 Rosemary McKenna: You see, I am getting the impression that you quite happily accepted that Goodman was taking the rap, if you like, and although he was making no comment you were charging him, that he was the one who was saying, "All right, I'll do the time".
Mr Williams: To be fair, we did not actually know that until the court case, so all the work that we were doing beforehand, all these decisions around what is it we want to pursue and are we going to speak to anyone about that, was entirely before we knew what was going to happen. In many ways, personally speaking, although it sounds odd, I actually wish they had gone not guilty because that truly would have presented all the evidence and it would have been a test of the legislation. We worked out with counsel and CPS a package and a range of victims here whereby there was some evidence that was excellent in terms of absolutely categorically proving that there had been an interception, and then there was other, less strong evidence, but by inference you could say what was happening, so all of this package stuck together. In a way, this was the first time this legislation had been tested and we were hoping to use this as case law. The fact that they pleaded guilty meant that none of the evidence was truly tested. None of this came out in argument. In court both defendants would have had the opportunity to give their explanation, and they may well have said something and we may have been a lot wiser or better informed.
Q1970 Rosemary McKenna: Yes, which suited the News of the World, did it not?
Mr Williams: Sorry, the last bit?
Q1971 Rosemary McKenna: It suited the organisation that there is not case law, that all of the evidence did not come out.
Mr Williams: That is what happened but I cannot alter that fact. What I would come back to is that it was absolutely instrumental in making it clear in everyone's mind that this is illegal; it is criminal and you will go to prison. That is what it has established and there has been a whole change in the practices in terms of how voicemail is managed.
Q1972 Paul Farrelly: Just to complete what I was trying to get at beforehand in terms of other people, the defence so far has been the one rotten apple defence and nobody else knew, but there is this mystery of who else the investigation would have been dealing with on non-royal stories. You say from your evidence that there are no other journalists where you might have reasonable suspicion from the evidence you have collected. In the evidence the court ordered you to hand over to help them with the Gordon Taylor civil case, as far as you are aware there would be no evidence there that might give a reasonable suspicion that other journalists in the News of the World were involved?
Mr Williams: There is no evidence that we can go forward with in terms of a criminal -----
Q1973 Paul Farrelly: No, that is not the question, there is no evidence. Whether or not you went forward or chose not to go forward or decided that you would not go forward, is there any evidence where you might as the police have reasonable suspicion that other journalists within News of the World on these particular charges were dealing with Glenn Mulcaire and seeking transcripts of telephone conversations that were intercepted in the way that royal staff's had been?
Mr Yates: I think it is fair to say that there was a whole range of documents seized from Mulcaire's house which displayed the range of activity he had been up to as a private investigator. There could have been some blagging, there could have been all sorts of nefarious means used to get that information. There is no evidence to take any further. We were concentrating in 2006 on section 1 of RIPA and that is what we were looking at.
Q1974 Paul Farrelly: But that is not my question.
Mr Yates: As I have said previously, you would expect a private investigator to have a range of information and material to do with his role. We may not always agree with it, but that is what they do and there is employment out there for them. As to how they came by that information, there was nothing to take us any further forward from an investigation point of view.
Q1975 Paul Farrelly: Finally, there is one particular point. From the records and evidence that went into the civil case pursued by Gordon Taylor there could be no inference that Glenn Mulcaire was dealing with any other journalists at News of the World?
Mr Yates: Of course there would be. There was bound to be.
Mr Williams: He was obviously working for someone and I do not know who, and there is nothing in that material that points to who.
Mr Yates: And not necessarily in an illegal way. It is his job.
Q1976 Paul Farrelly: Just to finish this off, in this very strident editorial on 12 July after the original Guardian - and, remember, we already know at least one case where Goodman himself is directly accessing, using techniques that Mulcaire has passed over to him - the News of the World says the following: "So let us be clear. Neither the police nor our own internal investigations have found any evidence for allegations that News of the World journalists have accessed voicemails of any individuals". Strictly speaking, given what we know about Goodman, that is not true, is it? If your unused evidence were to find tape recordings, for example, of conversations between Mulcaire and other people whom you did not pursue but may very well be journalists, then that would be doubly untrue, would it not?
Mr Williams: From what you are asking, there is nothing there that points me to any other journalists at the News of the World. The only person, if you like, unfortunately, is Goodman quite clearly taking part in this activity. Clearly, Mulcaire was under contract to the News of the World and doing a whole range of things; hence the question I asked News of the World, "What is he doing for you?". They say they have no records, so I cannot go any further. Equally, frankly, Mulcaire was not that organised. In my view he was not organised at all in how he was doing this. Everything was written. It was like a flurry of papers everywhere, scrap notes and everything, so to make head or tail of it there was - and I am merely making the inference - no organised list in terms of a roller deck with names and addresses of people that you could go through and say, "Ah, these are the people who he is working for". It just did not exist.
Q1977 Paul Farrelly: Could I just reasonably ask you to have a look at the unused evidence, Assistant Commissioner Yates, to see whether you might infer from what you have not used, because it is germane to this inquiry, whether Mulcaire was dealing with other journalists apart from Goodman, for instance, tape recording, where there was a journalist who was apparently a News of the World journalist by the first name of Ryan?
Mr Yates: I am quite happy to concede that he had contact with other journalists. That is what he did. That is his job. What we focus our minds on is evidence.
Q1978 Paul Farrelly: In relation to this sort of activity.
Mr Yates: In relation to the activity that we took them both to court for in 2006. It is not our job to look beyond that. We can only follow the evidence, so I am happy to concede that he did. Of course he did. I have said so on several occasions.
Q1979 Paul Farrelly: I have just got one final line of inquiry. We have debated what constituted a review and what did not constitute a review, but in your statement, Assistant Commissioner, as you said, you had been asked to establish the facts around the inquiry, and in the statement that you made you said that where there was clear evidence that people had been the subject of tapping they were all contacted by the police. Was that true in the case of Jo Armstrong?
Mr Yates: Sorry; I do not know who Jo Armstrong is.
Q1980 Paul Farrelly: She is the lady who is the legal adviser of the PFA whose phone was hacked into as well as Gordon Taylor's.
Mr Yates: I suppose I have heard her name, by the way. I do not know the detail of that but in terms of the people about whom we had evidence that they had been hacked into under section 1 of RIPA and we took to court on, my understanding is that we contacted all those people. I do not know whether her phone was hacked into or whether there was a suspicion her phone was hacked into. That is an entirely different -----
Q1981 Paul Farrelly: I think she is one of the ten where we have established that their phones had been hacked into.
Mr Yates: I will have to look into that and come back to you.
Q1982 Paul Farrelly: If you would, please.
Mr Yates: Presumably she knows now.
Paul Farrelly: I think she already knows. She is named.
Chairman: She is JA.
Q1983 Paul Farrelly: If you could come back to us on that particularly, please.
Mr Yates: Yes, I will.
Q1984 Paul Farrelly: There has been some controversy about what the evidence shows about how many people's phones were hacked into. I think we have got to eight or ten so far, and Andy Hayman has said a handful and somebody said fewer than 20. Detective Chief Superintendent, do you have a feel for what your inquiry threw up in terms of how many people's phones were actually hacked into?
Mr Williams: Our challenge has been the technical side, which is going back to the companies to understand what has gone on in terms of in the voicemails, and this goes into the technical side. I think some of it may have been explained in the submission, but what we were relying on was each individual's company's internal engineering software to tell us what is happening in the voicemail box, and by and large that engineering software is not good enough to tell us because it is their own administration, so the only people that we can actually prove - and that was looking at our potential list of victims - is people that we have done a significant amount of work on in terms of frequency, duration of calls and what the individual companies can tell us, and in one instance the phone company had to write some new software to be able to do some of the analysis. I am being very cautious around knowing who is a victim of what, because he clearly has got an interest in a range of people which, as we have said, is his job. He has this ability but we do not know definitively to what extent he has used that and we are entirely reliant on the phone companies being able to look at their internal data and come back to us. I suppose the honest answer is we do not know, and if we were saying to people, "The honest answer is we do not know", some of these people that were part of our case, it is an inference that they may have been a victim of this.
Q1985 Paul Farrelly: But we have got documentary evidence, which comes from your inquiry because it was released to Gordon Taylor's case, that shows Jo Armstrong of the Professional Footballers' Association, for instance, being a victim, as was Gordon Taylor. It is quite worrying to hear that that name was not being recognised and it is only one of a few names.
Mr Yates: It would have formed of the indictment. There have been 600 or 700 names bandied around, so I am not able to remember every one of them.
Q1986 Paul Farrelly: The issue was germane to the statement that you made, Assistant Commissioner, where you said you had been asked to establish the facts. You made a statement that the people who had been subject to tapping were all contacted by the police. That does not seem to be the case.
Mr Yates: Yes, it is.
Q1987 Paul Farrelly: And then later on in the evening there is a corrective statement put out by Scotland Yard clarifying that, saying, "The process of contacting people is currently under way and we expect this to take some time to complete".
Mr Yates: If you go to the end of the statement I think I make it clear that there could be people that fell through the gap and that was my concern, had we been sensible, reasonable and diligent, I think I used those words, in terms of contacting everybody, and that is what I undertook to do, so I make the assumption that Mrs Armstrong was one of those.
Q1988 Paul Farrelly: She was only one of eight or ten people.
Mr Yates: Okay. Your point is made.
Q1989 Paul Farrelly: Do you feel now that if there are further revelations and there is further public concern, and I think there are three categories of people - A, definitely hacked; B, suspicions but through case management we do not pursue them; C, targeted, ie, if people do bring concerns to you and the issue stays live, there might be an argument for taking a fresh look at the case?
Mr Yates: We have always said and I have always said that if new evidence is presented we would, of course, consider it. No new evidence has been presented. It has been now two months since that article and no new evidence has come to light. Also, there has got to be a sense of what can you do with that material now, three years later, when there is no technical data. There have to be some sensible, pragmatic decisions taken around these things on occasion. If new evidence comes to light we have always said we would consider it, but no new evidence has come to light.
Q1990 Paul Farrelly: That is a circular argument, as we established when I opened my questions, but anyway, if further complaints are made, would you consider it?
Mr Yates: If there are further complaints with viable evidence that we can pursue, then of course we would consider it.
Q1991 Mr Watson: I do not envy you. It has got everything, this case, has it not? Competition, celebrities, Royals, big newspapers, you always seem to get them, and that must temper the way you look at this case. You have to proceed with caution. You said you asked a number of detailed questions of the News International lawyers when you were investigating the case. Did they tell you when they first had a relationship with Mulcaire, what year that was? I think you asked for contracts of employment and the year he started working for News International. Did they tell you that?
Mr Williams: I am now going totally off the top of my head, so be careful. In relation to Mulcaire, yes, I believe they did supply the information. We obviously found a contract and in relation to him -----
Q1992 Mr Watson: It would be great if you could clarify that perhaps in writing afterwards. When we interviewed Tom Crone, the lawyer, and the editor, there was a bit of confusion about the year that Mulcaire started. I think they said he started in the late nineties. When you say there were a few people you suspected had had their phone hacked, did that include the royal princes?
Mr Yates: No, to my knowledge.
Mr Williams: Say the question again, sorry.
Q1993 Mr Watson: Did you suspect that the royal princes had had their phones hacked?
Mr Williams: In terms of them ringing their voicemails?
Q1994 Mr Watson: What did you suspect had happened to the royal princes' phones?
Mr Williams: Yes.
Q1995 Mr Watson: By Goodman and Mulcaire?
Mr Williams: Yes.
Q1996 Mr Watson: And presumably you did not want to drag the royal princes into court, so you chose not to pursue that route?
Mr Williams: The criminality was through their private secretaries, so they are listening to their private secretaries' voicemail which has messages.
Q1997 Mr Watson: From the princes?
Mr Williams: And other people.
Q1998 Mr Watson: And did you suspect that they had listened to the mobile phones of the royal princes?
Mr Williams: Yes, I think they may well have done.
Q1999 Mr Watson: I do not know how many people you have put away in jail over the years but it must run into hundreds. Does it run into hundreds?
Mr Williams: Yes.
Mr Yates: Twenty-eight years yesterday.
Q2000 Mr Watson: When people go to jail they do not just lose their liberty; they lose their livelihoods, they lose their jobs, they are guilty of gross misconduct. Is there anyone that you have ever put away that you know has received a payoff from their employer, having received a custodial sentence and lost their job?
Mr Williams: I personally? What do you mean? Do you mean because -----
Q2001 Mr Watson: They have received a payoff by their employer after they lost their job when they went to jail.
Mr Williams: What, legally?
Q2002 Mr Watson: Yes.
Mr Williams: Are you alluding to the fact that Mulcaire -----
Mr Yates: I am not sure that we should comment on this.
Mr Williams: I suppose the short answer is no.
Mr Yates: And we would not know anyway.
Mr Williams: And I would not know anyway.
Q2003 Mr Watson: Mulcaire and Goodman got a payoff from News International.
Mr Williams: Did they?
Q2004 Mr Watson: Yes. News International will not disclose to us what they -----
Mr Yates: It is not part of our business.
Q2005 Mr Watson: They say it is personal. Do you not think they have been bought off?
Mr Yates: It is not part of our business.
Q2006 Mr Watson: But is it not your business to investigate whether they have had their silence bought?
Mr Yates: Our business is to follow the evidence and put before the court the best evidence we can in terms of proving a case that we are investigating.
Q2007 Mr Watson: Does it not look suspicious that Mulcaire and Goodman, there they go, they have been attacking the royal family's phones, they are guilty of a serious criminal offence, they have undermined their own reputations and that of their employers. Their employers then give them an undisclosed payoff. Their employers are not prepared to publicly admit how much that payoff was for and no-one has gone back to them and asked them what that financial arrangement was about?
Mr Yates: It is just not our business, Mr Watson. It is just not our business.
Q2008 Mr Watson: It must concern you though.
Mr Yates: I am pretty certain the lawyers of News International have been careful about how they have phrased or shaped that contract, whatever it was, but it is not our business. I am sure you have asked them as well.
Mr Watson: Okay. Those are all my questions, thanks.
Q2009 Janet Anderson: I wonder if I could take you back to the
various counts in the court case, which were 1-20. In 1-15 it was clear that Goodman and
Mulcaire had acted together and charges 16-20, and the judge made a point of
differentiating between the two groups, where only Mulcaire was charged, but
the judge did say, "As to counts 16 to 20, you had not dealt with Goodman but
with others at News International. You
had not been paid anything because no stories had resulted". When you have been questioned by other
members of the Committee about why no-one else was charged in relation to
counts 16-20, I think you said there was no evidence, you had no further
evidence about who Mulcaire was working for, who he was working to, but there
was actually a contract which you will be aware of, signed by Greg Miskiw. He is the former news editor. He is the one who is quoted in his book as
saying, "That is what we do; we go out and destroy other people's lives", and
he had a contract offering Paul Williams, which is a known pseudonym of Glenn
Mulcaire, £7,000 for delivery of a Gordon Taylor story. That contract was dated
Mr Williams: I think the only reason the ambit of the prosecution fell into the January/February of 2005 was because of the phone data on Helen Asprey's phone. That is what showed us potentially how far back this activity might have been going on. The only reason it was not included was because we needed to show a conspiracy, ie, the two men working jointly together, and the only evidence we had from that was from when those victims first alerted us in November/December and we began the process of looking at it. In fact, we had a proactive phase around those particular victims where we were attempting with them to monitor what was going on, and through the work that we did we were able to show, as Mr Perry showed in his statement, the behaviour, the interaction, between Mulcaire and Goodman in the way that one would ring the other and one would ring one of our victims, then another would ring a customer service, then they would text, so that interaction was the strength of our case. It was our evidence to prove the conspiracy. Anything before November going back to January did not show that conspiracy, so it is merely, I would say, Mr Perry being neat and tidy and saying, "Well, strictly speaking, the best evidence and all we can prove in terms of a conspiracy is from November on".
Q2010 Janet Anderson: Even though there was this contract offering £7,000 for delivery of a Gordon Taylor story, the prosecution apparently in the trial did not for some reason link that to instances of phone tapping. How did they think Mulcaire was going to get information to provide £7,000 of story?
Mr Williams: We, the prosecution, counsel, put in that document as evidence to show that Mulcaire had been working for News of the world right back there, but again, and it came up because it was challenged by, I believe, Mulcaire's counsel, what they were challenging was that there was no evidence to say what he was being paid for and there could be no inference that he was being paid for interception, so I believe it was a matter of fact and record that, yes, at that moment in time he appeared to have been paid for a story about Gordon Taylor, but there could be no inference as to how he had got the information, in particular in terms of interception.
Q2011 Janet Anderson: But it did show you that there was a relationship between Mulcaire and Miskiw.
Mr Williams: Yes.
Q2012 Janet Anderson: And yet you still did not feel it might be a good idea to interview Greg Miskiw?
Mr Williams: This comes back to, yes, it is a piece of paper that shows that, but what was it for? Was he working for Mr Miskiw? What records are there? In addition to that, what else of substance is there in the company, because that was back in 2005, when we know from the technical point of view that we are simply not going to have the data in our case to go to prove anything? So it does go into the round, but more specifically around what our case is for we had this list of questions for News of the World which we did put in, and indeed, if there was any information that they did have and they produced to us, then it would have been considered, but what we came back with was a flat, "No, there is nothing held in this company that will answer all your questions".
Q2013 Janet Anderson: Do you think the News of the World told you the truth?
Mr Williams: I do not know because what I am being very conscious of is this is a firm of solicitors. I have absolutely no reason to doubt their reputation, and they are acting on behalf of the company and I have to take it on face value because I have got no other evidence to think otherwise; that is the state of affairs.
Q2014 Janet Anderson: If it turned out that the News of the World had not told you the truth would there be a penalty for that?
Mr Yates: It would have enabled us then to get a production order.
Mr Williams: Because they are not going to argue to a judge that there was substance to not believing it, but that would have been a very serious step. I would have had to have something very substantive to be able to turn that around when a firm of solicitors had said that.
Mr Yates: Before you go to a production order you have to demonstrate that you have gone through all the normal channels of consent and all those other processes first before a judge will even consider it, and when you have gone through those and they have said, "Actually, there is nothing there". You have got to have something very substantive to suggest that they are behaving in a nefarious way. In terms of they are misleading us and we have got no evidence of that a production order will not work.
Q2015 Janet Anderson: But it would be a reasonable assumption, would it not, if Mr Miskiw had made this kind of offer to Glenn Mulcaire once, that he had probably done it more than once?
Mr Yates: I do not know.
Q2016 Alan Keen: We were peacefully finishing our inquiry before the summer recess until we got an interesting article published in the Guardian. Since then it has been so frustrating. We have hardly had an answer and this afternoon, I am not sure whether you were here when the Information Commissioner -----
Mr Yates: The last ten minutes.
Q2017 Alan Keen: ----- in answering what some of my colleagues asked, "Why did you not pursue this issue further", said, "I do not know. We think the PCC should do it. It is nothing to do with us". You said a short while ago that in your interrogation of two people who pleaded guilty they did not say one word to you. We did a bit better than you when we had the editors and managing editor in front of us. They looked at each other and said, "I don't know anything about it". What is missing? Normal companies have financial records that can be traced. It appears that newspapers have almost nothing. It is no wonder you cannot go further and investigate it. Would you give us your idea as to what we could recommend so that in the future you would have something substantial to look into, some facts to look at, some records? There appears to be none.
Mr Yates: The key around all this would be good, solid self-regulation. With any corrupt administration I have been involved in it is all about fear of detection and fear of being caught and having good people on your tail all the time. There are several models around banks in terms of what records they must keep, which may be suitable in this area; I do not know. It is certainly not our area of expertise. All we would like is the records being kept and being readily retrievable, be it phone data, be it banking data, be it other data, to make our job easier, and there is lots of regulation around that.
Q2018 Alan Keen: We learn most of what we know about the police from watching TV dramas, admittedly. I used to believe the police had a slush fund out of which you paid informants. Is that true, and then over the years did you have to have some proof? Did people have to sign documents to show where the money was going, or is that all drama and not real?
Mr Yates: Yes, of course there is an informants' fund, as you have read in the last few months, and, yes, through mistakes and otherwise we have learned to regulate ourselves in a slightly more formal way, so there are lots of pretty strict regulations about how these funds are paid and who they are paid with.
Q2019 Alan Keen: Do you agree with me that it appears that within newspaper organisations there are not the same sorts of strict procedures that you have adopted?
Mr Yates: I have no idea how they operate.
Q2020 Alan Keen: You have never seen any evidence of any strict procedures for authorising expenditure?
Mr Yates: No.
Q2021 Alan Keen: We could not find that out from editors and managing editors.
Mr Yates: Again, it is not our bailiwick and I have got no idea how they operate.
Q2022 Alan Keen: Listening to you, it would be hard for you to disagree with me when I say that to help you in the future we really need to recommend that newspapers have to keep proper financial records. I have always had the impression that the owners, the proprietors, distance themselves comfortably away from what goes on at the dirty end of newspapers. Again, to help you in the future, what would you like us to recommend as far as giving you records that you can actually look at?
Mr Yates: I come back to it: good self-regulation is clearly the starting point, a permanent fear of being caught, and a fear of detection has to be there all the time, and sentences that are comparable with the offences committed. With the Operation Glade I think they got conditional discharges, did they not? I think all the defendants got conditional discharges in that case. That is hardly sending out a signal that suggests that this is serious and important and a serious crime. It is those issues that are the key ones for us.
Q2023 Adam Price: I think some of us may still be struggling here a bit. Just briefly touching again on this issue of those parts of the indictment, counts 16-20, the hacking of the phones of Max Clifford, Andrew Skylet, Gordon Taylor, Elle MacPherson, Glenn Mulcaire was found guilty of those charges and so whether or not a story appeared was immaterial; a criminal offence had occurred. We have a contract from News of the World in relation to Gordon Taylor. We have a transcript in relation to Gordon Taylor, count number 18. The judge in the trial accepted that Clive Goodman was nothing to do with it because Glenn Mulcaire dealt with others at News International, so even the judge at the trial came to the conclusion that others at News International were involved in relation to, amongst other things, the Gordon Taylor hacking, and yet you are saying you did not even have enough evidence to go and interview Greg Miskiw or Neville Thurlbeck. I find that extraordinary. Maybe it is not your fault. Maybe it is our fault, as Alan is suggesting, but there is a problem there surely.
Mr Yates: We can only deal with the evidence.
Q2024 Adam Price: A contract.
Mr Yates: Mulcaire had a lot of dealing with lots of journalists. We are not dealing with nefarious dealings of breaches of privacy and all those issues. We are dealing with phone hacking. That is what we are looking at and the evidence around that. It is circular. We have been going round this circle several times. We cannot go fishing somewhere for offences that may have been committed on which we have no reasonable grounds whatsoever. He is a private investigator. He deals with tittle-tattle. He deals with information about people in public life. That is what they do. We may not approve of it, we may have a view on it, but that is not evidence and section 1 of RIPA was what we were dealing with.
Q2025 Adam Price: Does not even the fact that a pseudonym was used in the contract set alarm bells off in your mind that here are potentially the elements of an attempt to prevent the information getting out, that there were dodgy dealings going on here and therefore we had better cover our backs?
Mr Yates: We deal with pseudonyms to protect sources. It is trade craft, if you want to call it that. That is what happens. It is not evidence of an offence.
Q2026 Adam Price: Now I am slightly worried. You said earlier, Mr Williams, that if only you had been clearer earlier on what the strategy of the accused was going to be or how they were going to plead --- I read Mr Kelsey-Fry who was appearing for Mr Goodman. It was interesting that a leading counsel, a QC, was engaged for him, at considerable cost, I am sure, but he goes on to say that yes, he did not answer questions at interview but within days of being arrested he was offering to admit his guilt in court. That seems slightly out of kilter with what you were suggesting, that within days of his arrest --- it is extraordinary as well, is it not, that somebody says nothing and then within days apparently they are pleading guilty?
Mr Williams: My objection is, if, just prior to when they formally appear and the indictment would be read out, there was an indication and they wanted it to be called an early indication, I do not remember at all it being around there because we were building a case on the basis that it would be a hard-fought battle and we wanted a strong case. It was only towards the approaching date that there was this potential indication but we would never have made the assumption that that was what was going to happen. We would always wait until the day.
Q2027 Adam Price: Mr Justice Gross goes on to say himself, the judge in the case, "I shall approach it on the basis that Mr Goodman pleaded guilty at the first available opportunity", so he seemed to accept that. It suggests that somebody brought the shutters down. I am not pointing the finger of blame at you here. Mr Goodman said nothing to you and he pleaded guilty, and, of course, as you yourself said, that prevented you from shining a stronger light on all aspects of this case.
Mr Williams: All I am reflecting is that it would have been interesting for the case to have been contested in that all the evidence would have been tested. Both counsel would have had the opportunity to test in the ins and outs of the evidence, perhaps in similar opportunities to yourselves, the defendants may or may not have decided to say something, in which case we would have had the opportunity to really get in and test it and flag up some of these strange anomalies and we might have got answers to some of these questions and we still might have been unhappy in terms of some of them, but that opportunity did not happen. They pleaded guilty. They said, "Yes, we have done that".
Mr Yates: And it is quite normal to have, in the adversarial system we operate, the prosecution putting the case beyond reasonable doubt. We would show our case to the defence and then the defendant would take legal advice and would see the benefits on an overwhelming case of a guilty plea and his solicitor would advise him in that way. It is not unusual at all.
Q2028 Philip Davies: No, but, just to clarify this, it was actually said by his lawyer that Mr Goodman in fact offered to plead guilty at the magistrates court within days of his arrest. That is not what you are saying, Mr Williams.
Mr Williams: I must admit I do not remember that. Let us say that was said. It would never have been taken on face value. We would have been preparing for a full case. Hence, as you can see from the things that we asked for, in particular of News of the World, we were preparing this case on the basis that we would need a robust case, and indeed was there anything else?
Mr Yates: In a case like this, before the man is actually indicted before the crown court he can put a plea in and you are suspecting it is always going to be not guilty and you would always prepare accordingly.
Q2029 Adam Price: So you do not accept that he offered to plead guilty at the magistrates' court?
Mr Yates: He may well have done. That is part of his mitigation; he may well have done, but you would never accept that as a plea.
Q2030 Adam Price: Can you just clear up one thing in relation to the now famous Neville Thurlbeck? Did you check how many Nevilles were working at the News of the World at the time?
Mr Yates: No.
Q2031 Adam Price: I think it probably is one but we will make inquiries. The CPS told Nick Davies, I think it was, that they were not given that email. You must have seen the story.
Mr Yates: I have seen the story, yes. What the DPP says is that he did not have that in his material possession when he was conducting his own review. What he also conceded later was that the prosecution counsel in the Goodman/Mulcaire case had reviewed that material during the prosecution of Goodman and Mulcaire. It was quite a semantic point but I understand that he did not have that in his material possession when he was doing his review in July. He then asked counsel to consider it again, which he did do, and you have seen the letter about what his view on that was.
Adam Price: Finally, just to clarify one of Tom Watson's earlier questions, just for me to be absolutely clear here, we know that members of the royal household, the staff of the royal family, their phones were hacked into and that was the substance of the indictment against Mulcaire and Goodman. Did you have any information which led you to believe that possibly Prince Harry's and Prince William's phones themselves had been targeted or had been accessed?
Q2032 Paul Farrelly: You answered yes to that, I think.
Mr Williams: Yes, through -----
Q2033 Paul Farrelly: No, you said yes individually, I think.
Mr Yates: No.
Q2034 Adam Price: Their phones themselves, not their messages but messages on their phones.
Mr Williams: Oh, I see, yes. Their voicemail.
Mr Yates: We were talking about their voicemails.
Q2035 Adam Price: Yes, you are right, the voicemail on their own phones.
Mr Yates: Their messages to people that worked for them in their outer office. That is how their voicemails were accessed.
Q2036 Adam Price: Because there was a particular story which we referred to in the Committee which was a message left on Prince William's or Prince Harry's phone which formed the basis for a story by Clive Goodman and the now famous Neville Thurlbeck, and that could only have been done on the basis that somebody had hacked their phones themselves or their voicemail systems, not the voicemails of the royal staff but the princes' phones themselves.
Mr Williams: I am not aware of that particular story. I know the stories that first brought it to attention were about messages that had been left on the private secretaries' phones, and that is what sparked off the inquiry.
Q2037 Adam Price: We are aware of that but were the princes' own phone messages to each other? Do you have any information which led you to believe that that happened?
Mr Yates: Not to my knowledge.
Mr Williams: Yes, other people and the princes, their voicemails may well have been intercepted.
Q2038 Adam Price: So the princes' voicemails may have been intercepted?
Mr Williams: Yes.
Q2039 Paul Farrelly: On their own phones?
Mr Williams: On their own phones.
Q2040 Chairman: When you say "may" -----
Mr Yates: We would never have been able to prove it.
Q2041 Chairman: Anybody may have been, but do you have actual ------?
Mr Yates: It is the letter and the open letter bit.
Mr Williams: It is whether you can prove it.
Q2042 Adam Price: So this is solid information which has led you to believe that quite possibly or probably their own phones were intercepted as well?
Mr Williams: Yes.
Q2043 Mr Hall: One of the things that really concerned me about the very swift response from the Metropolitan Police that there was no new evidence in this case and therefore nothing further to investigate was that it came out very quickly, and yet right at the start of the session you explained the amount of time that you put in during the day to reach that conclusion. Would it have been wiser on your part to have perhaps deliberated a little bit further before making the statement?
Mr Yates: We are sort of damned if we do and damned if we do not in these cases. If we are tardy we get criticised and if we are too quick we also get criticised. With Phil and others around the team we sat down and looked at what Mr Davies was saying in his article. We understood the genesis of it in terms of this was three stories, three old stories, conflated into one. We considered whether there was anything new within it and there was not, and we came to a view fairly quickly. Far be it from me to say it, but events have proved that that was probably the right decision to reach. I think we considered the DPP's and senior counsel's view on that.
Q2044 Mr Hall: What has emerged this afternoon is that this investigation and the prosecution was a very narrow and very fixed investigation, and it did not go further because you were not permitted to do fishing exercises with the News of the World to see if this was a widespread practice, rather than with the information you had to show if you had a particular case in certain circumstances. I am thinking about the request you made to the News of the World for information and their response, which you say is a response but did not give you any more information or led you any further forward. Is that a fair assessment?
Mr Yates: We could only follow the evidence. To go fishing is neither appropriate, lawful or ethical, we can only follow the evidence, and that is what we did in this case.
Q2045 Mr Hall: At one point I thought Detective Superintendent Williams was actually going to explain how the money worked and then the questionner led you further away. Detective Superintendent, how was this money actually paid to Goodman and how was it paid to Mulcaire?
Mr Williams: Mulcaire had a fixed contract, so that went into his bank, and then he received individual payments from Goodman. Goodman, according to the material that News of the World gave us, would claim, for example, £500 and the records would show, which is what we got from News of the World, that it was Goodman to pay the pseudonym they were using for Mulcaire (and presumably Goodman) "Pay Mulcaire". That amount of money over the period totalled £12,300, and because it was believed to be in relation to Mulcaire's activities, the subject of our case, that was an amount we could say beyond reasonable doubt was as a result of this activity and therefore it became the subject of a confiscation order, which the judge granted, and it was not opposed.
Q2046 Mr Hall: If I can be clear, Mulcaire had a contract direct with the News of the World which they paid into his bank account, and he received subsequent amounts of money ---
Mr Williams: Additional sums.
Q2047 Mr Hall: --- from Goodman?
Mr Williams: Yes.
Q2048 Mr Hall: And Goodman claimed them from a pot in the News of the World organisation?
Mr Williams: Yes.
Q2049 Mr Hall: Is there an audit trail to the News of the World funds to show how much Goodman claimed and how much he passed on?
Mr Williams: Yes, and all that was the subject of the trial ---
Q2050 Mr Hall: This was all disclosed at the trial?
Mr Williams: Again, off the top of my head, it was a number of payments totalling £12,300.
Q2051 Mr Hall: These were cash payments?
Mr Williams: I believe they were. I could not quote you on that. I do not know.
Q2052 Mr Hall: Having looked at Mulcaire's bank accounts, there were no sums of money in his account which he could not actually account for?
Mr Williams: I do not know. I know we looked at his financial profiling, we knew where he was getting his money, from News of the World ---
Q2053 Mr Hall: So if there were other deputy editors in the News of the World - say the Sports desk rather than the Royal Family desk - and they had an arrangement with a private investigator who was on contract, the payments would work the same way? That editor would claim them from a central pot in News of the World and pay them direct to the person supplying the information?
Mr Williams: If I have understood it, yes. Other people in News of the World had similar arrangements with other people. I am presuming, I do not know, is the honest answer, how they do it, but it could well be there would be similar records in News of the World to that.
Q2054 Mr Hall: Because of the requirements of the production order, you were not allowed to ask those questions?
Mr Williams: I can only ask in relation to what I am investigating. There is absolutely no basis to ask them that.
Q2055 Mr Hall: Did you follow the audit trail on the emails as well?
Mr Williams: Which?
Q2056 Mr Hall: The Goodman-Mulcaire audit trail via email? Was there an audit trail via email?
Mr Yates: Mulcaire's computer was seized and has been examined for any relevant material.
Mr Williams: There was nothing on his computer.
Q2057 Mr Hall: We were told by the current editor that he looked at 2,500 emails and he could not find anything to suggest this practice was active anywhere else in the News of the World. I do not suppose you looked at the 2,500 emails, did you? Although why would you.
Mr Williams: I do not know which emails he looked at. Again, my basis would be, who is Mulcaire working for? Give me names of people, give me stories, and then if you get that you would look at what gets revealed, but I have been told there is nothing in our records, therefore legally I have no basis to pursue it.
Q2058 Mr Hall: One final question, was John Prescott's phone actually tapped or not?
Mr Yates: No. As I said on the day, there is no evidence it was.
Q2059 Mr Hall: There have been plenty of stories about him which would explain his phone had been tapped.
Mr Yates: We have no evidence it was.
Q2060 Mr Watson: When you were examining the payments to the various people, the credit element and the cash payment element, did you have any reason to notify the Inland Revenue that tax offences might have been taking place?
Mr Williams: We did consider a raft of things. For instance, if he has received this fixed money, is there any basis for asset confiscation beyond the £12,300? So that was considered; all of that. There were some financial inquiries, but when it comes back to it, with counsel and CPS, we are completely unable to say on what basis he acquired that money; there is no basis to say it was unlawful. In fact the only basis we could say any of the payments were unlawful was that £12,300, so therefore that was the only bit that we could actually take off him. For the rest of it, we have no evidence to be able to support anything under asset confiscation or any of those matters.
Q2061 Mr Watson: With respect, that was not my question. I understand the point that you needed to find evidence of fraud for the trial ---
Mr Williams: I think you were asking about tax.
Q2062 Mr Watson: In the course of your investigation you were looking at the system of payments, how it worked, how Goodman was getting these cash payments, as an officer in other cases do you think there might be grounds which the Inland Revenue should have investigated further?
Mr Williams: In relation to Goodman?
Q2063 Mr Watson: This system of payments at News International.
Mr Williams: I must admit I do not know enough about Inland Revenue and tax to know whether or not that would be. You are now out of my field. I would bow to my financial investigators. I know we talked about this, we talked about tax, had they paid tax, and again that would be something I would leave to my financial investigators because that is their world.
Q2064 Mr Watson: So it might be something you could have a view on?
Mr Yates: In terms of how we pay our sources, there are arrangements but I do not know what it is like with ----
Q2065 Mr Watson: So it might be you would look at the Inland Revenue with others?
Mr Yates: Yes.
Chairman: We have kept you for long enough. Thank you very much.
Witness: Mr Mark Lewis, Solicitor Advocate, Stripes Solicitors, gave evidence.
Chairman: For the final part this afternoon, can I welcome Mr Mark Lewis, Solicitor Advocate at Stripes Solicitors. Paul Farrelly has some questions for you.
Q2066 Paul Farrelly: Thank you very much for agreeing to the request to come. There were a number of people who have declined to appear in front of us so far, so thank you very much. I saw you were present for all of the police evidence?
Mr Lewis: Yes.
Q2067 Paul Farrelly: But not the Information Commissioner's evidence?
Mr Lewis: I think I was here for a short ten minutes and then the police evidence.
Q2068 Paul Farrelly: Do not be fooled by the empty gallery. This is being televised and there is not much else going on in Parliament at the moment, so journalists can watch this from the TV screen.
Mr Lewis: Could I start by setting in context the evidence I can give?
Q2069 Paul Farrelly: I want to ask you because you are under privilege here but personally you will feel there are things you can talk about or not.
Mr Lewis: I have three issues at least that I have to deal with. One is client confidentiality because there are certain things I have been told by clients that I have to protect, so that is my secondary privilege, or more primary privilege I suppose. There is a privilege on the documents which were provided to me under court proceedings and court orders which, whilst you might find interesting, are still under court privilege, documents given on disclosure, and therefore unless they have been referred to in the public domain they cannot be referred to. The third issue is that I am under threat by News International of an injunction against me acting for other people, so I will try not to upset them.
Q2070 Chairman: We are into complicated legal areas. Your first point, your responsibility to your client, is obviously understood, but on the second point, any information you give to this Committee cannot be regarded as a breach of any court order.
Mr Lewis: I understand there is an implied undertaking that is given when obtaining documents on disclosure. Some of the issues in this case have been dealt with by members of the Committee who have asked very pertinent questions of the police, and I heard the evidence of the police, but those issues which apparently were not obvious to the police were very obvious to me at the starting point. If that sets it in context, the picture that came up was when the prosecution of Goodman and Mulcaire took place in respect of phone-hacking of the royal princes, Gordon Taylor, who was a client of mine at that time, was quite obviously of no interest whatsoever to Goodman and it did not take a genius (although I like to think that I might be a genius) to work out that somebody else had been the recipient of that information. That was the cause of the whole of this inquiry because I started to think, "Hang on, there is something more to it." The premise that led me to reach that conclusion is because a year before there had been an issue between my client and the News of the World which, whilst subject to client confidentiality, had led the News of the World to say to me that the information they had investigated at that stage was as a result of proper journalist inquiries. When I watched the television about the prosecution in respect of the royal princes being given, I thought, "No, it was not proper journalistic inquiries, they have been hacking phones and that is how they have got information which has led to that story." That is why - fast forward - we get to where we are here and my involvement in the case. My understanding is that there have been three cases. I have also undertaken three cases. Two of my clients have been named and I have been named as having acted for them - Gordon Taylor, Jo Armstrong - the third one has not been named and therefore I cannot name them within the context of these proceedings.
Q2071 Chairman: The key question, you correctly surmise, or at least we would say is your view, that it is unlikely Clive Goodman was commissioning information from Gordon Taylor's phone. Do you have any evidence to suggest who in the News of the World might have been receiving information from Gordon Taylor's phone?
Mr Lewis: This is interesting because I have heard the evidence given by the Assistant Commissioner and his side-kick. The methodology of the claim - and I have worked out there was a claim, it was obvious to me there was a claim but to make that stick I had to get documents which proved it - the way of getting the documents and the methodology, was applying for third party disclosure, as lawyers would call it, of various part bodies. That is why I applied for evidence from the Information Commissioner, and they consented, evidence from the CPS, and that was not a problem either, and evidence from the Metropolitan Police. When it came to the Metropolitan Police, the person who attended at the court was Detective Sergeant Mark Mabbeley (?). I can mention that because it was an open court, there were court hearings, and Detective Sergeant Mark Mabbeley said to me, "You are not having everything but we will give you enough on Taylor to hang them." Those were his words, "to hang them". So he quite clearly knew at that time there was sufficient evidence about my client, and I only had one client at that time, Mr Taylor, to hang the News of the World about that client. He also mentioned the number of people whose phones had been hacked. Whether that was an aside, whether that leads me into the threat of the injunction that the News of the World have made against me, or through their lawyers have made against me, the reservation of that right, but they had said that there was evidence about, or they had found there were something like 6,000 people who were involved. It was not clear to me whether that was 6,000 phones which had been hacked, or 6,000 people including the people who had left messages. I think I am able to explain to this Committee how it worked. I accept there is a difference in civil burden and criminal burden, so the police might have been looking at things very differently and therefore if someone was called Neville they did not bother to check that because they could not prove it on the criminal burden of proof, but the position was that with Gordon Taylor there was sufficient evidence to be disclosed by the police to do the hanging, as the police had called it. But there was evidence, for example, the Neville email, which you have been talking about today, and it is fair to say that was not disclosed initially. It is a shame that the court file is closed, because obviously that cannot be looked at, but I think it is a matter of record that initially the News of the World's defence was, "This did not happen". This defence was subsequently amended to say, "Yes, it did" and the settlement came about shortly after disclosure from the Metropolitan Police showing for example the Neville - I nearly said "the Neville Thurlbeck" but that has never been proved on any criminal basis - email came out.
Q2072 Paul Farrelly: I wanted to ask you, as far as you can, to describe your role in the case, when it started and when it was settled, part of which you have already done, Mr Lewis. Also, could you reflect a little further on the evidence the police have given, particularly with respect to the questioning about whether any of the evidence you were able to requisition through court orders gave you reasonable suspicion that other journalists were involved, either in the Taylor case or, and I do not know what evidence you are able to command, in the other cases as well, which is the question John asked? Before that, can I ask you to explain what is happening with News International now? They are not seeking to injunct you in respect of your appearance here, are they?
Mr Lewis: No, they are not seeking to injunct me. I have copies of the letter but not necessarily for everybody.
Q2073 Paul Farrelly: Can you explain what ----
Mr Lewis: The difficulty for News International, or Farrer's on behalf of News International, is that I know information which they say should not be used for other people. I disagree with that and I have responded to it. I have not had their substantive response to my letter but it says, "It goes without saying that our client ....", that is News International, "... will object to your involvement in this or any other related case as against our client for the reasons set out above. We reserve our client's rights to take injunctive proceedings against you, should you chose to disregard the matters contained in this letter." It then concludes by saying, "However, you have an opportunity to correct matters by confirming that you will now accept that you cannot act for any individual wishing to bring a claim against News Group in respect of the voicemail accessing allegations ...", that is what they call this, voicemail accessing allegations, but I call it "phone-hacking" or such like. I think it can be summarised as, "You know too much, please don't act against us or we will bring the whole weight of the organisation down on you."
Q2074 Paul Farrelly: More than "please".
Mr Lewis: Perhaps I was being polite.
Q2075 Paul Farrelly: I have not heard of this happening before. Is this something you are aware has professionally happened before to other solicitors, where they are seeking to prevent you from practising your trade because you have been involved in one case against one ---
Mr Lewis: I am sure it might have happened before but I am not aware of it.
Q2076 Chairman: I do not quite follow. I understand why News of the World might not want you to appear on behalf of anybody else, but what are they threatening to do to you if you do?
Mr Lewis: They threaten an injunction to stop me acting against them.
Q2077 Chairman: On what possible grounds?
Mr Lewis: On the basis that I won, I think.
Q2078 Chairman: No court will grant an injunction on that basis! Does the News of the World have any serious threat against you?
Mr Lewis: My response was no, they did not, but I took the view that I was entitled to act in the same way as anybody else who has now jumped on the bandwagon I have started rolling.
Q2079 Chairman: It seems an entirely pointless letter to me.
Mr Lewis: I think it was designed to upset me, but it did not.
Q2080 Paul Farrelly: It is part of a pattern of activity perhaps, Chairman, and something the Solicitors' Complaints Authority might wish to have a look at if you were so bothered.
Mr Lewis: Perhaps.
Q2081 Paul Farrelly: Could you tell us when you started the case and when it was settled, just to give us a time frame?
Mr Lewis: It is difficult to give the exact chronology of it because a year or so before is when there had been the threatened story - and I was acting at that time for Jo Armstrong, who has been mentioned earlier today, rather than for Gordon Taylor - to stop a story which was absolutely ridiculous anyway, and I got a response from Tom Crone, who I understand has given evidence previously to you, to say that this was a proper journalistic inquiry but there would be no story run. My understanding is that Mr Crone would have understood there to be proper journalistic inquiry rather than any knowledge on his part that there was anything improper. I have no doubt about him saying things honestly. It was a year later, when I just happened by chance to see the 9 o'clock News or 10 o'clock News, and heard "That is a proper journalistic inquiry" and I have a good memory and I thought, "Hang on", that phrase stuck out that these were not proper journalistic inquiries at all. It was at that point. So whenever the prosecution of the princes' hearing, the sentencing hearing, took place, was the date that Gordon Taylor's claim effectively was in embryo and started against News of the World.
Q2082 Paul Farrelly: There were several hearings?
Mr Lewis: That was the position. We started a claim based on an inference that Glenn Mulcaire got this information. That has been proven. Glenn Mulcaire's counsel had given evidence in the criminal case that he only acted for News International, that he would not have been getting information for the likes of Clive Goodman because Gordon Taylor is not King Taylor yet.
Q2083 Paul Farrelly: When did the civil ---
Mr Lewis: Very shortly after. We sent some letters pretty soon after the prosecution to say, "Please provide us with lots of money and not to repeat these things; you have been illegally hacking his phone."
Q2084 Paul Farrelly: When was the settlement reached?
Mr Lewis: About a year ago, I would guess.
Q2085 Paul Farrelly: A year ago as of now?
Mr Lewis: It took a little while to get to that stage. The first stage in the case was News International saying that this was an open record. So at that stage all the documents which cannot be referred to now because the files are closed were in an open court file, so the claim and original defence which was put in said, "This never happened." So it was there and was a public document at that stage.
Q2086 Paul Farrelly: You mentioned Mr Crone, Mr Crone came to us as part of a number of people from News International, and we were told they had not been able to correct the record, either with us or with the Press Complaints Commission, because of the confidentiality clauses which were in the settlement. Mr Crone was asked by the Chairman on what basis was it decided to keep the proceedings secret, was it at Gordon Taylor's request, and Mr Crone said, "Actually I think he mentioned it first." The Chairman said, "He mentioned it first?" Mr Crone said, "It was raised by him before it was raised by us but we fell in with it." Have we been given accurate evidence?
Mr Lewis: The short answer would be no. The longer answer would be, and I have seen the transcript of that evidence, the position is that there are two different aspects to keeping something quiet. So the claim initially that was made sought an injunction to stop the repetition of information which was obtained illegally, so in that sense the existence of the information which was the subject matter of the story effectively which was the underlying aspect of the case. It was Gordon Taylor's suggestion, or my suggestion on behalf of Gordon Taylor, that we ask that that be kept secret. It was right and proper that that should be done, because sometimes people say, "There's no smoke without fire" and in this case there was no smoke without fire, but to stop that would be the usual libel type of practice to stop a story getting out. That is very different from stopping the existence of a settlement getting out, and that is a secondary point. That was not suggested by Gordon Taylor or by me on behalf of Gordon Taylor. That is not waiving any privilege or anything, that was the position that was put forward as part of the settlement offer.
Q2087 Paul Farrelly: By News International?
Mr Lewis: By News International or by their lawyers.
Q2088 Paul Farrelly: On what sort of grounds might that usually be the case, in your experience?
Mr Lewis: It would be hard for me to answer that question, what was in their mind, but I think the inference might be that it was part of the settlement offer.
Q2089 Paul Farrelly: It would have been embarrassing had that been disclosed?
Mr Lewis: I suspect it might have been embarrassing, it might have led other people to think, "Hang on a minute, there was a story about me. I wonder how they got that story?"
Q2090 Paul Farrelly: On the rounds through your involvement in this case, are you aware of any other similar sort of actions which have been settled in this way by News International, in relation to this sort of activity?
Mr Lewis: I do not think it had ever happened before. I think people had always looked at what the story said and, apart from a lawyer's point of view - and this is my job - if the story was true but infringed privacy, then it would be a privacy action; if the story was not true then there would be a libel action. I do not think anybody had ever stepped back and said, "How did the newspaper get the story in the first place?" What can be seen from some of these cases - I think you referred to the Neville email, et cetera - at around that time there was a story which had been drafted which suggested the story had almost been laundered afterwards, that once the story had been got by the newspapers it could be legitimised afterwards by getting the relevant quotes from people.
Q2091 Paul Farrelly: You said that once you were successful in the court order requiring the evidence from the police, and I assume by extension from the Information Commissioner, that the situation changed in terms of readiness to settle and admit. I want to try and get to the bottom of the Chairman's question. In the evidence you have been able to get, was there any inference or reasonable suspicion that Mr Mulcaire was providing these intercepts in the Taylor case, or on the other counts to the extent you have some information about those, to other journalists within News International?
Mr Lewis: Other than Mr Goodman?
Q2092 Paul Farrelly: Yes.
Mr Lewis: Quite obviously they would have been given to journalists other than Mr Goodman. At the time, to put it into context, there had been stories about people at the FA, not the PFA which Mr Taylor is from, having been involved in sexual misconduct or whatever. At the time there had been stories about Sven-Goran Eriksson with somebody called Faria Alam, and then there was a story about somebody at the FA with Faria Alam as well I understand. If I have that wrong, I am sorry, Ms Alam. This was supposed to be the third story in the sequence of "More Scandal at the FA", but the story had been got by people hacking phones rather than actually doing proper journalism, so they had not bothered to check facts and it would have come out that actually it was a different organisation, different people and actually did not fit in anyway.
Q2093 Chairman: Are you saying you have seen specific documentary evidence to suggest those phones were hacked?
Mr Lewis: No, I am sorry, I am not suggesting that. It is just the way things were put together. I cannot stray on to documents I might have seen, but the answer is no.
Q2094 Chairman: Have you seen any documents which came from anybody other than Clive Goodman?
Mr Lewis: Anybody other than Clive Goodman? I have seen a Neville document.
Chairman: You have seen the Neville document.
Q2095 Paul Farrelly: You also asked for the Motorman files, can I ask why you did that and how helpful were they to you in respect of the particular grounds on which you brought the case for Mr Taylor, or generally to show a pattern of behaviour?
Mr Lewis: Generally to show a pattern of behaviour. Naturally, the nature of the case as it started was inferential, there had to be inferences which were drawn. This is the difference between a criminal case and a civil case. In a civil case one was able to say to the judge, "Look, this is the inference. Mr Goodman could not be getting information because it would not make sense for a royal correspondent to be getting information about somebody involved in the world of football, for example." So to build up the inference, it was to say, "Look, here is an organisation, these are all the things it does wrongly in order to get stories", and that helps to weigh up the evidential proof to suggest that this is not a one-off as it was described in the criminal case.
Q2096 Paul Farrelly: They refused to give us the figures in their response but there were payments made to Clive Goodman and Mulcaire after their convictions. Even though Goodman was dismissed and his internal appeal failed, they maintained it was still a compromise agreement and that he had employment rights and, likewise Mr Mulcaire, even though the payments to him and the contract, it was said in court, stopped before that case was brought. From your investigations, do you have any details or any information about the nature and the conditions behind those payments to Mr Goodman and Mr Mulcaire?
Mr Lewis: The very short answer is no, I do not. On two issues, if it is helpful, in respect of employment law, which is not particularly my field, one could say that if somebody has committed misconduct, as in the case of Mr Goodman being sent to prison, that misconduct would be sufficient to end his contract of employment. It is very difficult to see how somebody would be compensated for that as a loss of office, so presumably there would be some other reason for paying him, if he has been paid.
Q2097 Paul Farrelly: To keep quiet?
Mr Lewis: That might be so.
Q2098 Paul Farrelly: I have asked this question of the police: the News of the World editorial of 12 July, after the Guardian's first revelations largely on the basis of the settlement of Gordon Taylor, said, "So let us be clear, neither the police nor our own internal investigation has found any evidence to support allegations that News of the World journalists have accessed the voicemails of any individuals." The editorial goes on to say, "Nor instructed private investigators or other third parties to access voicemails of any individual." From your involvement in the Taylor case, would you say that was a truthful editorial or not?
Mr Lewis: Gosh! Believing what they say in the News of the World is an alien concept. I cannot see they would pay out a lot of money to anybody if they really believed that themselves; I certainly do not believe it.
Q2099 Alan Keen: Just to clarify, you mentioned the names of two people at the FA and a third person, who I obviously know the name of as well. You said you have not seen any evidence, why did you mention them? Did it happen at the same time as the Gordon Taylor case?
Mr Lewis: It sort of happened at the same time, and also I saw a draft of an article that said, "More sexual mayhem ..." or such, "... at the FA" rather than the PFA, because the person who had written the article had thought it was the next one in the stage of the stories but it was a complete red herring.
Q2100 Alan Keen: It was just a red herring?
Mr Lewis: A complete red herring.
Q2101 Alan Keen: You had no evidence?
Mr Lewis: No, not at all.
Q2102 Janet Anderson: You referred earlier to a copy of a contract signed by Greg Miskiw offering Glenn Mulcaire, under the pseudonym of Paul Williams, £7,000 for the delivery of a Gordon Taylor story. This was referred to in the course of the case against Goodman and Mulcaire, but the prosecution, although they made reference to this contract, did not make a link to instances of phone-tapping. The prosecution apparently said that this merely showed there was a relationship between Miskiw and Mulcaire. Do you think the prosecution should have shown this was evidence of phone-tapping?
Mr Lewis: I heard what the police had to say earlier and I find it astonishing that, when they fall back on resources, for the length of time it took me to deal with it they could not have done that, because it was quite obvious where the story had come from; it quite clearly had come from phone-hacking, it was all documented, it was very easy to get. I got it from the police. I was reading their document.
Q2103 Janet Anderson: So the only way that Mulcaire could have delivered the Gordon Taylor story that Greg Miskiw wanted was through phone-tapping, in your view?
Mr Lewis: I think it incredibly unlikely to have been obtained any other way, because it was not a true story, it was a misunderstanding of a message which had been left on the phone, so how you would misunderstand a message left on a phone in any other way is completely beyond me.
Q2104 Janet Anderson: So they would have had to have heard the message?
Mr Lewis: In order to misunderstand it, they would have had to hear it.
Q2105 Paul Farrelly: I asked this question of the Information Commissioner and his investigator: clearly Gordon Taylor was the target for the News of the World and they were relying on Glenn Mulcaire to come up with the goods. I might imagine the News of the World was using other investigators, including Stephen Whittamore and Motorman, to target people to see what they could come up with as well. Was that the case from the Motorman files? Did Gordon Taylor's name come up in the Motorman files?
Mr Lewis: I cannot answer that. I cannot remember the specific information. In a sense, what the police said to me outside court when we got the papers was that there was enough information to hang the News of the World, and as a civil lawyer I had done my job, I had got the evidence I needed, and then the negotiations started.
Q2106 Paul Farrelly: We have seen the pleadings before the judge when the sentencing occurred on 26 January 2007, what we do not have are the reports from the probation officers and the statements in mitigation in full. I do not know whether you have seen that as part of your researches, but there seems to be the implication in both Mulcaire's and Goodman's statements in mitigation that they were just one of quite a few people doing this and it was just commonplace and "right" - I think that is one word which has been used. Without the benefit of seeing those ----
Mr Lewis: I did not have the benefit of seeing those but the inferential case which was put forward on behalf of Mr Taylor was that this practice was endemic within the News of the World and the desire to get stories. It might well have been the fact that Mr Goodman was the scapegoat for the News of the World and that perhaps is a matter for someone other than me to surmise, but quite clearly Mr Goodman was not interested in Mr Taylor. Why would he be? He was the royal correspondent.
Q2107 Adam Price: The whole story so far is an extraordinary set of circumstances. We have had Clive Goodman and Glenn Mulcaire being paid off after they came out of prison, and we do not know whether there is a confidentiality clause somewhere in those agreements but I suspect there is. The News of the World tried to get two members of this Committee thrown off and now they are trying to gag one of the key lawyers. It sounds like corporate stabbings in there. What is going to be your next step? Are you going to continue undaunted? Are you going to represent any other clients in relation to this case?
Mr Lewis: I was always taught as a lawyer - and this sounds very pompous - to be absolutely fearless of the executive and fearless of any organisation, whether it be News of the World, whether Mr Murdoch himself or anybody; they are not going to frighten me. Actually I see it as rather flattering if somebody threatens me with an injunction. I had wanted to give the answer before, when the question was, have you heard of this before, "Oh yes, it happens to me all the time", but unfortunately I could not give you that answer! I would like to be as good a lawyer as I can be so nobody wants me to act against them.
Chairman: I think that is all we have for you. Thank you very much.