Reports that Matter

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

APPENDICES

Section 55 of 140

APPENDICES

  • Appendix 1: Counsel to the Inquiry and the Inquiry Team — 1821

  • Appendix 2: Submissions and correspondence statistics — 1823

  • Appendix 3: Witnesses to the Inquiry — 1827

  • Appendix 4: Legal materials — 1843

Appendix 5: Evidence relevant to the generic conclusions on the relationship

  • between politicians and the press: Part I, Chapter 8 — 1955

  • Appendix 6: Bibliography — 1985

xi parT J aspects of regulation: the law and the press complaints commission

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Chapter 1 Introduction

1.1 This Part of the Report returns to the conduct of the press and provides the context in which

the conduct of the press in any particular case can be challenged. A broad outline of the criminal and civil law in so far as it might impact on journalists is set out in Appendix 4 but the substantive law only goes so far.

1.2 For the criminal law, it is important also to consider the practical difficulties which reduce the

prospect of a criminal investigation being started, let alone continue to fruition and result in prosecution. Chapter 2 identifies the argument that has been advanced by some that the matters giving rise to this Inquiry are a consequence of a failure of criminal law enforcement rather than anything else, and outlines what I consider to represent the reality of modern policing and the investigation of crime. It deals with the circumstances in which criminal investigations are instigated and the issues that are likely to be faced in the gathering of evidence.

1.3 The Chapter then goes on to analyse the role that acting in the public interest should play

within the criminal law. This is first in relation to the decision to prosecute: after the issue was raised by the Inquiry, the Director of Public Prosecutions consulted on the topic and then issued a formal guideline. It also considers the way in which the public interest might impact on later aspects of the criminal process as a consequence of judicial management, the jury and (if a conviction is recorded) sentence.

1.4 Possible changes for the future are then considered. These include the preparation of

guidelines should the maximum sentence for offences under s55 of the Data Protection Act 1998 be increased along with the submissions made by the Deputy Commissioner of the Metropolitan Police in relation to the Police and Evidence Act 1984.

1.5 Chapter 3 concerns the civil law. Here the focus is not on the substantive law but, rather,

on the impact of different costs regimes on the civil justice system and, in particular, the consequences of proposed changes in the law surrounding funding that are likely substantially to affect litigation against the press.

1.6 On the basis that the costs regime is about to change to the disadvantage of those wishing

to pursue civil litigation with the benefit of a Conditional Fee Agreement (which has led to an increase in the award of general damages in personal injury litigation), damages for defamation, breach of privacy and other media torts also fall for review, as does the issue of aggravated and exemplary damages. The other procedural law issue discussed concerns the mechanism for introducing incentives in relation to the costs of litigation if a regulator provides a system of arbitration.

1.7 Chapter 4 is different and does not look to the future. The Terms of Reference require the

Inquiry to consider the extent to which the current regulatory framework has failed. That J requires a detailed consideration of the operation of the Press Complaints Commission.

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Chapter 2 the Criminal Law

  1. Introduction

1.1 The criminal law can touch upon the work of journalists in many ways and inevitably

prescribes the ways in which it is acceptable for stories to be obtained. A detailed summary of aspects of the criminal law most likely to be engaged in the pursuit of journalism is set out in Appendix 4 but it is not intended to be comprehensive: by way of example, aspects of the behaviour of Neville Thurlbeck as he pursued a follow up to his scoop relating to Max Mosley were described by Mr Justice Eady as containing "a clear threat to the women involved that unless they cooperated … (albeit in exchange for some money)", making the point that it was "elementary that blackmail can be committed by the threat to do something which would not, in itself, be unlawful".1 There is no doubt room for other potential offences to be engaged in the unprincipled pursuit of a story.

1.2 On the basis that what was believed to have taken place at the News of the World (NoTW)

(ignoring what might have happened elsewhere) consisted of the commission of crime, it has been suggested that this Inquiry is unnecessary, if not misconceived. It is argued that the problem, if such there was, did not lie with the press but with the police for their failure to investigate crime; furthermore, because of the existence of the criminal law, these issues simply do not require further attention in general or regulation in particular. Without attempting to list all of those who have developed the same argument, it is worth mentioning three different ways in which the point has been articulated.

1.3 First, in one of the seminars prior to the commencement of the hearings during the course of

an address concerned with defending free expression, Kelvin MacKenzie, the former editor of The Sun, said:2

"Yes there was criminal cancer at the News of The World. Yes there were editorial and senior management errors as the extent of the cancer began to be revealed. But why do we need an inquiry of this kind? There are plenty of laws to cover what went on. After all 16 people have already been arrested and my bet is that the number may well go to 30 once police officers are rounded up. Almost certainly they will face conspiracy laws, corruption laws, false accounting laws. There are plenty of laws that have been broken. Lord Leveson knows them all by heart. Supposing these arrests didn't come from the newspaper business. Supposing they were baggage handlers at Heathrow nicking from luggage, or staff at Primark carrying out a VAT swindle, or more likely, a bunch or lawyers involved in a mortgage

J fraud would such an inquiry have ever been set up.

Of course not."

paras 82 and 87, Mosley v News Group Newspapers Ltd [2008] EWHC QB 1777 p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Kelvin-MacKenzie.pdf

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Chapter 2 | The Criminal Law

1.4 Ian Hislop, the Editor of Private Eye, put the matter in this way:3

"I do think that statutory regulation is not required, and most of the heinous crimes that came up and have made such a splash in front of this Inquiry have already been illegal. Contempt of court is illegal. Phone tapping is illegal. Taking money from – policemen taking money is illegal. All of these things don't need a code. We already have laws for them. The fact that these laws were not rigorously enforced is, again, due to the behaviour of the police, the interaction of the police and News International, and – I mean, let's be honest about this – the fact that our politicians have been very, very involved, in ways that I think are not sensible, with senior News International people ..."

1.5 Finally, the Rt Hon Michael Gove MP said exactly the same thing:4

"I have a prior belief that we should use the existing laws of the land and individuals and institutions should be judged fairly, on the basis of the existing laws of the land – ... and that the case for regulation needs to be made very strongly before we further curtail liberty. ... I think the best way of making sure that people obey the law is making sure that the police are appropriately resourced to investigate crime, that the courts hear the case for the prosecution and the defence and then, if someone is found guilty, that they face the consequences. I fear for liberty if those principles are eroded."

1.6 The argument goes in this way. If a journalist intercepted a message on somebody else's

mobile telephone, without their permission, that journalist has committed a criminal offence and should be investigated and, if appropriate, prosecuted in exactly the same way as would occur if anybody else did the same thing. Journalists should be subject to the same law as everyone else but should not be subject to any additional regulatory restriction when all that each one is doing is exercising his or her right to free speech. A subsidiary argument (also advanced by a number of witnesses) goes further. Far from imposing additional regulation on the journalist, the importance of free speech and the obligation of the press to hold power to account should be recognised in the criminal law, so that, if a journalist is acting in the public interest in pursuing a story, he or she has a defence to any crime necessarily committed while doing so. The defence to a breach of s55 of the Data Protection Act 1998 (DPA), along with the unimplemented amendments contained within the ss77-78 of the Criminal Justice and Immigration Act 2008, is discussed later, but the argument is that no journalist should be in peril of conviction of crime while pursuing a story in the public interest (or, presumably, while pursuing a story that he or she perceives to be in the public interest).

1.7 These arguments fail to recognise the way in which the criminal law operates and the practical

limitations facing the police and prosecuting authorities, however enthusiastic their wish to detect all those committing criminal offences might be. The way in which Operation Motorman was pursued by the Information Commissioner and Operation Caryatid (later reconsidered on a number of occasions) by the Metropolitan Police Service (MPS) has been the subject of detailed analysis.5 At this stage, the intention is not to consider the specific investigations (although some aspects will be identified where relevant) but rather to examine the over- J arching constraints which face the police and the courts in the investigation, detection and prosecution of crime in general and crime involving journalists in particular.

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PART J | Aspects of Regulation: The Law and the Press Complaints Commission

  1. The investigation of crime: complaints to the police

2.1 Crimes come to be notified to the police and investigated in a number of different ways.

First and most likely is that a complaint of crime or possible crime is made to the police. The victim of, say, a burglary or a robbery will contact the police and report the matter. Equally plausible is that the police will be notified in the event that the victim of, say, a shooting attends hospital. Alternatively, the police might themselves either be called to the scene of a crime (whether by a victim or witness) or they might be present and witness events for themselves (such as might occur during an occasion of public disorder). This report might be immediate and contemporaneous with events; it might follow after days (a burglary only detected when the householder returns home after holiday); after weeks or months (fraud); or even after many years (historic sexual abuse). Howsoever it occurs, the police will then take statements from witnesses and pursue such investigations as they can. An inquiry might involve scenes of crime officers, forensic scientists or other experts; it might involve the collection of documentary or other real evidence; it might involve the pursuit of information from those who might know who is responsible. Leads will be followed up and, in the most complex cases, a computer system such as HOLMES6 used to collate evidence and ensure that all appropriate avenues are explored.

2.2 Second, for some criminal offences (and, in particular, for some of the most serious and those

which do not generate victims likely to complain to the police), rather than wait for a possible victim, the police will target either an offence or a suspected offender. By way of example, large scale supply of Class A drugs may well be detected because of some intelligence leading to surveillance and the development of evidence in that way. Police resources may well be devoted to target serious criminal activity without waiting for the crime to be committed. In this type of case, however, again, evidence will be followed up, collated and researched in the same way.

2.3 Whatever might have drawn the attention of the police either to the crime or the alleged

criminal, many of the same investigative techniques will be deployed in order to bring those guilty of crime before the courts. Thus, during the course of an investigation for an indictable offence, a search warrant or search warrants can be obtained and the relevant evidence seized.7 Additionally, assuming reasonable grounds can be established that an indictable offence has been committed, a suspect may be arrested and, pursuant to s18 PACE, the police can search any premises occupied or controlled by that person both in relation to that offence and any other indictable offence connected with or similar to that offence.

2.4 Once lawfully on premises being searched, the police can seize anything which the officer has

reasonable grounds for believing has been obtained in consequence of the commission of an offence (to prevent it being lost damaged, altered or destroyed), along with anything which the officer has reasonable grounds for believing constitutes evidence in relation to an offence being investigated or any other offence.8 When it comes to journalistic material, there are very important restrictions to these powers which shall require detailed consideration but, for the present, it is sufficient to identify the possibility that these searches (and any interviews

J similarly conducted pursuant to powers in PACE) may reveal further evidence.

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Chapter 2 | The Criminal Law

2.5 This very potted and non-exhaustive summary9 is important simply because it underlines the

vital importance of what constitutes the trigger for a police investigation. In the first case, it was the complaint of the victim or other knowledge that a crime had been committed. In the second, it was the intelligence or suspicion that crime was in train. Something had to start the investigative ball rolling. Even for the least serious criminal offences, there has to be something. Speeding is now detected with the use of specific speed cameras; the use of a mobile telephone when driving, or failure to wear a seat belt, however, are only detected if someone (usually a police officer but, perhaps for some offences, a traffic warden) sees the offence being committed and does something about it.

2.6 Turning to the offences which may be committed by journalists in pursuit of a story, the

absence of a victim who is aware of the fact of the offence means that there will be no complaint. Neither can reliance be placed on the possibility that a complaint might be generated which will reveal what has been going on sufficiently to expose all such criminal wrongdoing. Both in Operation Motorman and Operation Caryatid, what was significant was not the original complaint (in the first case relating to the passing on of information from the DVLA and, in the second, relating to personal details concerning a member of the Royal Household of sufficient significance itself to cause a substantial police investigation to be undertaken). Rather, it was the entirely fortuitous discovery of a mountain of information in the form of the records kept by Steve Whittamore and Glenn Mulcaire respectively.

2.7 Without those records, nobody would have been any the wiser about the extent to which Mr

Whittamore was providing personal data in clear breach of s55 of the DPA and the subsequent exposures would never have seen the light of day. Without the many pages of Mr Mulcaire's records, the fact that names, addresses, phone numbers, PIN details and other links had been gathered and recorded, the inference from all of which being that it could be alleged that there was wholesale and industrial interception of mobile telephone messages, would all have remained unrevealed. Even if the Guardian or the New York Times had managed to obtain sufficient information to enable the police to rely, without more, on the factual basis of the stories as published, the extent of what was going on would have remained hidden. The history of these particular investigations have been analysed at length but it would be truly remarkable if, because in each case of one specific complaint, the police had managed to identify the only private detectives indulging in this type of intrusion.

2.8 The same is so, but even more so, in relation to the bribery of public officials. Putting the

question of public interest to one side for a moment, there will be no complaint to the police about such conduct because it will be undetectable unless the public official is foolish enough to make some admission or leave some incriminating evidence around for someone else to see. The journalist will not reveal his or her source for a story (on which see below) and, irrespective of the likely public interest in the story (or, just as likely, the absence of any discernible public interest), it will be almost impossible to get to the bottom of it. Leak inquiries almost inevitably fail to achieve their purpose.

2.9 Considerable emphasis was placed on the fact that the Information Commissioner has always

made it clear that, since the reports What Price Privacy and What Price Privacy Now, he has J not received complaints in relation to journalism; in relation to bribery, the present work of the MPS under the umbrella of Operation Elveden is also identified as demonstrating that this type of behaviour is also subject of rigorous police investigation. Neither of these facts, however, supports the wider propositions which are advanced.

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PART J | Aspects of Regulation: The Law and the Press Complaints Commission

2.10 What is not acknowledged is the fact that absent evidence to point to the commission of

an offence (which requires rather more than mere assertion before any report, let alone investigation, can be considered justifiable), nobody who has been the subject of intrusion will necessarily be aware of the circumstances in which information about them came to enter the public domain. At its highest will be a concern that someone has provided information to a journalist which has then been published but any attempt to identify from whom or how that material was obtained will fail on the basis that no journalist will reveal a source.

2.11 Neither will anybody be aware that a particular story has been obtained because money

changed hands with a public official. Again, reference has been made to the fact that Operation Elveden has led to a large number of arrests of journalists and, in addition, public officials, the inference being that this is simply a consequence of the police doing the work that they always could have done had they properly investigated the documentation that they had in their possession. That is not, however, the way in which Deputy Assistant Commissioner Akers put the matter. She said:10

"The Management and Standards Committee (MSC) is an independent body outside of NI and was formally established by News Corp on 21 July [2011]. ... In this role they respond to requests for information from the police which we consider are relevant to our inquiries. Our aim is to identify criminality. It is not to uncover legitimate sources and therefore the MSC responds in a manner that seeks to protect legitimate journalist sources at all times. They are also overseeing the searches being conducted of the 300 million emails produced by NI. ... The MSC's role and remit is important to Operation Elveden as current legislation would make it difficult, if not impossible, for police to access material of the type it is seeking without that assistance. Where there is an evidential base to request information, the MSC have provided it in an unredacted format in order to enable police to identify the public official concerned. However, in relation to wider requests regarding the system by which alleged cash/cheque payments were made, the MSC provide information to police in a redacted form, i.e. with the names of the potential source redacted, until police are able to produce evidence that can justify identifying the source."

2.12 The same point was made during the course of her evidence in these terms:11

"Q. Now a general point which I think should be made is that have you been receiving assistance by the MSC, which, of course, is the independent review team within News International?