Reports that Matter

An Inquiry into the Culture, Practices and Ethics of the Press

Operation Reproof

Section 4 of 63

Operation Reproof

1.1 In 2001, the Devon and Cornwall Police were investigating an allegation of blackmail in Plymouth which sprang from the fact that a member of the public had obtained details of the criminal convictions of someone else. Not surprisingly, the police were concerned to discover how those details had been obtained and, in the course of the investigation, evidence was uncovered that an officer serving with the same force had accessed the Police National Computer (PNC) record of the victim. It was suspected that he had passed the information to individuals working as private investigators, and that the information had ultimately reached the hands of the suspect.

1.2 In December 2001, therefore, a series of searches of various premises, which supported that concern, were carried out. Material was seized which indicated that police officers and support staff from the force had been obtaining details of criminal convictions and information about the keepers of identified vehicles which were stored on police computer systems and

E then passing that information to private investigators, who would in turn pass it onto their customers. The private investigators were, in the main, retired police officers.

1.3 Thus, in January 2002, Operation Reproof was initiated. The Senior Investigating Officer for that investigation has now retired: his deputy, now Detective Chief Superintendent Middleton (then holding the rank of Detective Inspector) gave evidence to the Inquiry.1 The purpose of the operation, initially, was to scope the material that had been seized during the blackmail investigation, with the following terms of reference:

(a) to investigate the alleged offences and conduct interviews of the individuals identified as being in "jeopardy"; (b) to establish links with other agencies to identify individuals who had unlawfully revealed

confidential information, and to preserve evidence in support of suspected offences and to interview those individuals; and

(c) to report to the Crown Prosecution Service and the Police Complaints Authority.

1.4 Through an analysis of a "huge amount of evidence" the police discovered a network of companies and individuals throughout the UK, acting as investigators, who were sourcing information on demand, either directly from a person serving with the police or through a third party.2 In particular, the police found that a small number of police officers who had retired from the Devon and Cornwall Police had set themselves up as private investigators for the commercial market and were obtaining information from former colleagues who were still working within the police service or other agencies, such as the Department for Work and Pensions. The information was then passed through a network of individuals before it reached the ultimate customer. In most cases that ultimate customer was three or four links up the chain.1 Introduction 3 Setting up and preliminaries 10 Rule 13 of the Inquiry Rules 2006: the approach 38 Scope 49 Context 56 Context 69 The 1992 general election 1134 Introduction and background 1164 Purchase of The Times and The Sunday Times 1233 Introduction 1299 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf http://www.competition-commission.org.uk/rep_pub/reports/2000/fulltext/442a4.2.pdf - cited as being cc from data in Advertising Statistics Yearbook 1999 The Times is published by Times Newspapers Ltd and the other titles by News Group Newspapers Ltd. The corporate structures are examined below. January 2012 Report and Accounts for the Financial Year of the Telegraph Media Group Limited (published 21 March 2012) http://stakeholders.ofcom.org.uk/binaries/consultations/public-interest-test-nov2010/statement/public-interest-test- report.pdf p24,lines 1-8, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf Appendix 4 sets out a detailed analysis of section 55 pp4-5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DAC-Sue- Akers.pdf p19, lines 14-25, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Morning-Hearing-14-November-2011.pdf January 2007 and 4 January 2009) was provided to the Inquiry on a confidential basis. It has not been published as it includes commercially sensitive data p4, lines 7-12, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf pp 8-9, lines 21-4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf p4, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Condon. pdf Part E, Chapter 3 pp8-9, para 4.9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander- Owens1.pdf p5, para 2.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf p24, lines 13-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf Part H, Chapter 5, para 2.60 p53, lines 1-2, Kenneth Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-30-May-2012.pdf pp1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Harriet-Harman-QC- MP.pdf see Section 4 of this Chapter for a discussion of the circumstances in which the cross media plurality test came to be enacted. He illustrated this memorably by reference to the seating plan at a dinner in December 2009: p27, lines 16-17, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of-Morning-Hearing-13-June-2012.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Covering-Letter-from-Ofcom.pdf pp66-67, lines 18-1, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-31-January-2012.pdf pp1-2, lines 14-14, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-10-July-2012.pdf p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/11/Press-Council-of-Ireland-Chairman-speech.pdf Part F, Chapter 2 K Part K, Chapter 7, para 4.5 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-Russell-Middleton.pdf p76, line 1, DCI Middleton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-9-May-2012.pdf

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1.5 The police sought to identify all the links in the chain and ascertain who in the chain knew that the information had been obtained unlawfully. The customers were found to be requesting either specific pieces of information or packages, which could include a person's criminal background, their financial situation, medical history, telephone records and current whereabouts. The customers ranged from individuals involved in matrimonial disputes to large financial institutions including insurance companies and debt recovery agents. The police found no evidence that the companies were aware that the information was being obtained illegally.

1.6 The investigation also showed that serving and retired officers from other police forces were involved in similar illegal activities, and had links with the suspects in Devon and Cornwall.

The relevant forces were contacted, including the Metropolitan Police Service (MPS) and the police forces of Dorset, Northumbria, Surrey and Essex.

1.7 The investigation led the police to a 'data gathering' company based in Surrey called Data

Commissioner (ICO) which has formed an important part of the narrative to the Inquiry. From this investigation, the ICO passed material to the MPS, which gave rise to Operation Glade.

For convenience, having dealt with Operation Reproof, the narrative will pass on to Operation

Glade and then to Operation Motorman.

1.8 DCS Middleton explained that the CPS and the Police Complaints Authority advised the police to focus the investigation on (i) individuals who were either systematically providing or receiving information unlawfully from databases, and (ii) the customers who knew or ought to have known that the information had been obtained unlawfully. The upshot was that two serving police officers, two retired police officers and two individuals associated with Data

Research Ltd were charged with misconduct in public office offences and Data Protection Act offences.

1.9 On 17 October 2005 a pre-trial hearing took place at Exeter Crown Court before the trial judge, His Honour Judge Darlow. The defence argued that the proceedings should be stayed for an abuse of process. Although not directly relevant to this abuse of process submission, the defence also contended that accessing the databases and the subsequent passing of information obtained to insurance companies was "not that serious" and that unlawfully accessing the PNC could not amount to the criminal offence of misconduct in public office.3 The prosecution argued that the unlawful disclosure of the information was serious, irrespective of the use to which the data was intended to be put.

1.10 On 19 October 2005 the judge gave judgment on the issues raised. He roundly rejected the defence submission that the proceedings should be stayed for an abuse of process. However, he also expressed the provisional view, not central to his principal conclusion in relation to the application of which he was formally seized, that the act of a police officer accessing the

PNC and providing the information to a former colleague might not in the circumstances of this particular case amount to misconduct in public office, and in any event the matter was not terribly serious.3 Visits 9 Chapter 2: the approach 10 Challenging the evidence 31 The nature and standard of proof 43 Chapter 4: the Report 49 Timing and content 50 PARt B: the PRess And the PuBlIC InteRest 53 Chapter 1: Introduction 55 Chapter 2: the freedom of the press and democracy 56 The importance of a free press: free communication 61 Personal autonomy and civil liberties 73 Prime Minister Blair: 1997-2007 1143 Prime Minister Cameron: 2010-present 1209 Human Rights Act 1998 1262 In particular, in relation to the knowledge and understanding (a) in 2002 of Surrey Police as to the interception of the mobile phone of Milly Dowler and (b) in 2008 of Cleveland Police in relation to e mail hacking of John Darwin who had faked his own death in a canoe 'The Freedom of the Press'-proposed preface to 'Animal Farm', publication of which was delayed until the end of the war to avoid causing offence to the Soviet Union pp361-363, ibid p3, ibid ibid http://www.newscorp.com/investor.html http://stakeholders.ofcom.org.uk/binaries/research/cmr/cmr11/UK_Doc_Section_1.pdf Communications Act 2003 s375 (1)(2C)(a) http://www.legislation.gov.uk/ukpga/2003/21/section/375 ibid, p4 p16, lines 12-18, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf p42, para 83, ibid pp2-3, para 5, ibid para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry- Rules-2006.pdf Transcript of the proceedings before Gross J on 26 January 2007, p70E This submission has not been published on the Inquiry website, but was shared with the Core Participants to the Inquiry pp4-5, lines 17-12, Charlotte Church, ibid p34, lines 16-25, James Hipwell, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-December-20111.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner-Bernard- Hogan-Howe1.pdf pp12-13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Jeff-Edwards.pdf p15, para 3.1.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Report-by-Elizabeth-Filkin.pdf pp4-5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander-Owens1. pdf pp32-33, lines 4-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-5-December-2011.pdf p26, para 6.10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Sixth-Witness-Statement-of-Richard-Thomas.pdf Part H, Chapter 5, para 2.62 p6, lines 15-16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p22, lines 7-14, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-16-May-2012.pdf p4, lines 6-12, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p6, ibid http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110713/debtext/110713-0003. htm#11071379000002 p9, lines 20-25, ibid pp1-2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Professor-Steven- Barnett-on-plurality.pdf p9, line 8, Ian Hislop, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Morning- Hearing-18-January-2012.pdf p4, para 18, and p18, para 85, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement- of-Nick-Clegg-MP2.pdf; pp10-11, lines 15-24, Nick Clegg MP, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Morning-Hearing-13-June-2012.pdf p14, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Hunt-of-Wirral. pdf p36, lines 9-20, Lord Black, ibid p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of-Brentwood1.pdf p15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Submission-by-Campaign-for-Press-and- Broadcasting-Freedom1.pdf p51, lines 11-15, Professor John Horgan, ibid K Part F, Chapter 6 Part K, Chapter 7, para 4.28 K Part K, Chapter 7, para 4.8 In McCartan Turkington Breen v Times Newspapers Ltd [2001] 1 AC 277, Lord Steyn noted that even before the coming into force of the HRA 1988, "the principle of freedom of expression [had] attained the status of a constitutional right with high attendant normative force", with reference made to Reynolds v Times Newspapers Ltd [2001] 2 AC 127 at 207G-H p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-Russell- Middleton.pdf

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Chapter 2 | Police Investigations Start

1.11 In any event, following the judge's comments, a number of case conferences took place with the CPS and prosecution counsel. With the judge's comments in mind it was decided not to proceed on the basis that it would not be in the public interest given the potential costs that would be incurred. In short, DCS Middleton confirmed in evidence that a fair summary of the position was that the judge caused the CPS to ask itself, "do we want to spend all this time on a trial if the judge is of the view either (a) that the facts may not make out an offence, or (b) that if they did, it is not a terribly serious matter."4 I do not comment on the judge's expression of opinion (also reflected in the sentences which had been passed in relation to Operation Glade discussed below). I do, however, add that whatever might have been the position considered by the judge and, in consequence, by the CPS in 2005 should not be assumed to represent a current assessment of whether conduct of that type constitutes misconduct in public office or the gravity of such conduct.

1.12 In evidence, DCS Middleton was asked why journalists were not within the scope of Operation Reproof. He answered:5

"I think I need to make clear that they weren't out of scope. The whole inquiry right from the outset was extremely open, an open-minded approach as to what we would discover. The initial information, as we said, linked pretty much specifically to a local investigation, detective private investigation agency in Devon and the flow of E information was from the police officer and the other staff I've mentioned through to that private investigator, up one or two more chains, and we were tracking customers each and every occasion, open-minded as to who those customers would be, and we never found any direct evidence or indirect evidence linking that information being requested by or for any part of the media or journalists."

1.13 In his witness statement, DCS Middleton said that:6

"There was no direct evidence found during the course of the investigation that any media organisation was in any way involved in the obtaining of illicit information being investigated…"

1.14 In evidence he was asked whether there was any indirect or inferential evidence that a media organisation was involved. DCS Middleton responded:7

"As I've said right from the outset, the mindset of myself as the senior investigating officer and my team, who were thoroughly professional throughout, was we were open-minded as to what we would find and we would have dealt with that and pursued that based on information or evidence that we had. We deal with information, intelligence and evidence. The CPS were working alongside us, as were the Police Complaints Authority. We did not have anything that directly or indirectly linked to journalists. Had we done so, we'd have thoroughly investigated that."