July 2009: The Guardian

July 2009: The Guardian

¶Introduction

¶8.1 Although the NoTW was having to cope with the consequences of Operation Caryatid

both in relation to Clive Goodman, Glenn Mulcaire, Andy Coulson and all those who then wished to pursue claims for damages, in the immediate aftermath of the prosecution and notwithstanding what journalists knew, believed or had gossiped about in relation to voicemail interception, until the Guardian article, there is no evidence that the wider issue (or the police investigation) was considered in any detail by the press. When the Guardian (and, subsequently, the New York Times) did publish articles, both the Police and the PCC reacted. They did so, however, in ways that have raised more questions than they answered and, in the context of this Part of the Inquiry, require detailed consideration.

¶8.2 More specifically, this Inquiry must address the public concern about the decisions taken

by the MPS in 2009 and 2010 to the effect that there was nothing in what was reported in the press to justify further examination despite the claim that the MPS itself held evidence that implicated other journalists and which would merit further investigation. In particular, it boils down to the question whether any relationship between the MPS and NI, or between officers within the MPS and senior management in NI influenced the decisions which were then made.

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¶8.3 To address that issue, the focus of this section is upon the reasons why, until January 2011, the

MPS, and the then Assistant Commissioner, John Yates, in particular, asserted and maintained the position that there was no evidence of further criminality and that absent "new evidence", there was no reason to re-open the 2006 investigation, despite the facts, first, that the detectives involved in Operation Caryatid knew that there was evidence implicating other journalists, but which had not been taken further in 2006 because of resource constraints and, second, that the police held vast quantities of material that had not been fully analysed in 2006.

¶The allegations made by the Guardian 8.4 On 8 and 9 July 2009 the Guardian published an article429 which exposed that NGN had

paid out more than £1 million to settle claims for the reason that the claims threatened to reveal evidence of its journalists' repeated involvement in the use of criminal methods to obtain stories. Those criminal methods were alleged to include using private investigators to intercept the mobile phone voicemail messages of numerous public figures, including cabinet ministers, MPs, actors and sportspeople. The article referred specifically to the claim brought by Gordon Taylor and stated: E "Today, the Guardian reveals details of the suppressed evidence which may open the door to hundreds more legal actions by victims of News Group, the Murdoch company that publishes the News of the World and the Sun, as well as provoking police inquiries into reporters who were involved and the senior executives responsible for them."

¶8.5 The article claimed that the evidence posed difficult questions for Andy Coulson, Rupert

¶Murdoch executives and, in addition:

(a) the MPS "who did not alert all those whose phones were targeted"; (b) the CPS, "which did not pursue all possible charges against News Group personnel"; and (c) the PCC, "which claimed to have conducted an investigation but failed to uncover any evidence of illegal activity".

¶8.6 The article referred to the assertion of NI, following the prosecution of Mr Goodman and Mr

Mulcaire, that it knew of no other journalist who was involved in voicemail interception and that Mr Goodman had been acting without its knowledge. The article then went on:

"However, one senior source at the Met. police told the Guardian that during the Goodman inquiry, officers had found evidence of News Group staff using private investigators who hacked into "thousands" of mobile phones. Another source with direct knowledge of the police findings put the figure at "two or three thousand" mobiles. They suggest that MPs from all three parties and cabinet ministers, including former deputy prime minister John Prescott and former culture secretary Tessa Jowell, were among the targets …"

¶8.7 The article referred to the fact that in the claim brought by Mr Taylor, the court had ordered

the MPS to disclose evidence obtained during its investigation into Mr Goodman and then reported as follows:

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"The Scotland Yard files included paperwork which revealed that, contrary to News Group's initial denial, Mulcaire had provided a recording of the messages on Taylor's phone to a News of the World journalist who had transcribed them and emailed them to a senior reporter; and that a News of the World executive had offered Mulcaire a substantial bonus payment for a story specifically related to the intercepted messages."

¶8.8 The article also reported that, faced with this evidence, NI began offering huge sums of money to Mr Taylor to settle the case and secure a confidentiality clause. It continued:

"The Scotland Yard paperwork also provided evidence that the News of the World had been involved with Glenn Mulcaire in his hacking the mobile phones of at least two other figures from the world of football. They, too, filed complaints, which were settled earlier this year when News International paid a total of more than £300,000 in damages and costs on condition that they, too, signed gagging clauses. "The Guardian's understanding is that the paperwork disclosed by Scotland Yard to Taylor is only a fraction of the total material they gathered on News Group's involvement with Glenn Mulcaire."

¶E 8.9 The Guardian had made a clear allegation that evidence implicating journalists other than Mr

Goodman had already been obtained by the police during the original investigation. It was not the case that the Guardian was alleging that it had uncovered evidence that the police had not been able to obtain themselves.

¶8.10 The article prompted a number of responses which bear detailed examination although

the response from NI itself can be dealt with shortly. The evidence of James Murdoch was that the article was drawn to his attention and that he asked the management at the NoTW whether the allegation, that Mr Taylor had been paid, in effect, "hush money", was true. He said that he was assured:430

"That it wasn't true, that there was no other evidence, that there – you know, this is a – you know, this has been investigated to death and this is, you know, a smear."

¶8.11 He made no effort to probe further and accordingly there was no investigation of the allegations.

¶The police response

¶8.12 On the morning of 9 July 2009, which was the day after the Guardian article appeared

online but when it featured in the print edition of the newspaper, the Metropolitan Police Commissioner, Sir Paul Stephenson, was being driven to an ACPO conference. It was quite frequently the case that he would hear something on the radio or read something in the newspaper and ask the matter to be looked into and he heard a discussion on the radio about the allegations made in the article. Sir Paul understood the allegation to be that the MPS had not "gone the whole distance" in the investigation. He took it to be "just yet another headline" which he expected the Assistant Commissioner to pick up and deal with.431 In this

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case, by reason of his responsibility, John Yates was the natural choice: by then, Mr Yates had succeeded Andy Hayman as the Assistant Commissioner in charge of Specialist Operations.432

¶8.13 Sir Paul telephoned Mr Yates. Sir Paul and Mr Yates had the common understanding that Mr

Yates was not expected to conduct a "review" of Operation Caryatid but to "establish the facts" surrounding the investigation.433 As Mr Yates stressed:434

"The request was to 'establish the facts'. There has been some misunderstanding and debate about the term 'review' – a review in police terms is a comprehensive piece of work which involves a substantial number of people reviewing an entire investigation or particular aspects of one … Reviews are resource intensive and there has to be a compelling reason for a decision to devote staff and officers to undertake one. New evidence or new information could obviously be a compelling reason, although it is likely that a scoping exercise would be carried out first to decide whether such a decision was merited. The article of 9 July 2009 provided no such new evidence or new information that merited a full review."

¶8.14 An issue that arises immediately is whether it was appropriate for Mr Yates to conduct the

exercise at all given the nature of his relationship with Neil Wallis.435 This was significant because, according to the Guardian, there appeared to be a conspiracy involving reporters at E the NoTW which possibly encompassed senior executives responsible for reporters. Needless to say Mr Wallis, as deputy editor of the NoTW, was someone who on the face of things fell within this latter category and there was therefore a risk that far from assuaging concern, should the nature of his friendship become public knowledge, Mr Yates would exacerbate it.

¶8.15 Police action should always be capable of withstanding the test of public scrutiny and both

the independence of decision-making and the appearance of the same are vital to this. Whilst there is no evidence to cause me to suspect that Mr Yates was, in fact, influenced in his decision-making by his friendship with Mr Wallis, I have no doubt that he should not have accepted the task nor maintained responsibility for considering subsequent allegations made in the press; particularly (as was the event), if he was to dismiss the concern, he risked creating a perception that the decision-making of the MPS was not independent or impartial, but influenced by his friendship.

¶8.16 In response to the suggestion that he should not have undertaken the fact-finding exercise in the light of his relationship with Mr Wallis, Mr Yates said:436

"… from 2005, 2006 onwards, whenever Caryatid started, there was never any question of Mr Wallis being involved. He hadn't resigned, he continued to work at the newspaper. There was no evidence in July 2009 … "... So as far as we were aware, you had Mr Goodman, as a cog in a large organisation, arrested for wrongdoing and sent to prison. That, as far as I was aware at the time and others were aware, no other evidence to suggest others' involvement, does that

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mean you cut off relationships with a very influential section of the media? I don't think it does."

¶8.17 Leaving aside for the time being the misconception that there was "no other evidence to

suggest others' involvement", in this response, Mr Yates missed the point. It was no answer to state that there was no evidence to suggest that Mr Wallis was involved in unlawful voicemail interception because the Guardian was claiming precisely that senior executives could be involved and that there was evidence that they were. On analysis, this response betrays a closed mind-set because it suggests that Mr Yates had already dismissed the very question he was being asked to consider, even if on a limited basis: namely whether the police held evidence of a conspiracy to intercept communications that went beyond Mr Goodman and Mr Mulcaire and which they should now be considering. Further, in this answer Mr Yates did not grapple with the fact that his friendship with Mr Wallis might create a perception that he would be influenced in his decision-making. When challenged about the perception created he said:⁴³⁷⁴³⁷ p83, lines 2-5, Sly Bailey, ibid pp61-62, lines 19-4, ibid p4, paras 19-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Chris- Atkins1.pdf p14, lines 15-22, ibid p88, ibid E [2004] 1 WLR 3279

"No, I take – of course I take your point, but I think the benefit of hindsight once again comes into play because in July 2009 there was nothing to suggest that Wallis was involved in any way whatsoever, and what's happened in the last few years, and of

¶E course nothing has been proven yet, but in July 2009 there was just – there was no

indication at all, and I did this very dispassionately, and I take your point about the perception, but it didn't appear to me to be a problem then and it didn't appear to others to be a problem then. It is clearly a problem now."

¶8.18 Mr Yates continued:438

"I completely take that as a perception, but what this was on July 9, 2009, was a newspaper article. It didn't present evidence. Newspaper articles, as we all know, can have basis in facts and they can have lots of flour put around them to make them more interesting. I can only go on what the evidence was that day and that's where I got to."

¶8.19 In those answers Mr Yates failed to deal with the fundamental point that it could be perceived

that he did not approach the exercise with a wholly objective mindset. He also appeared not to grasp that it mattered not at all whether he was aware of any evidence implicating Mr Wallis personally, not least because before he embarked on the fact-finding exercise he had no way of knowing what evidence Operation Caryatid had uncovered or what the alleged "suppressed evidence" comprised. Finally, after a number of questions on the point, he appeared to accept that there was at least the appearance of a lack of disinterestedness because of his close friendship with Mr Wallis,439 although he has since made clear that he denies that it was a misjudgement to undertake the exercise and that he does not accept even that there was a perception that the decision-making for which he was ultimately responsible was not independent and impartial.

¶8.20 Mr Yates has also since argued that had the fact-finding exercise uncovered any hint of

potential wrongdoing by Neil Wallis personally, then he would at that point have declared a conflict of interest and handed the exercise over to a colleague. I have no doubt that this is correct, but it does not address the fundamental concern that the general allegation in the

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Guardian and the circumstances could almost inevitably create concern that he might not approach the evidence with sufficient objectivity and independence of mind.

¶8.21 During his evidence Mr Yates was understandably eager to stress that in reality his friendship

with Mr Wallis had no bearing on his decision-making. He sought to reinforce this by emphasising that there were "informal checks and balances". Mr Yates gave the example that it would be nonsense to suggest that an officer like DCS Surtees would accept a perverse decision just because Mr Yates was a senior officer.440 Whilst factors such as these support my conclusion that the decision-making of Mr Yates was not in fact distorted by his friendship with Mr Wallis, they would not have prevented the perception forming that it was, and that perception is capable of undermining public confidence in his decision.

¶8.22 Mr Yates suggested that it could only be said that his decision to undertake the fact-finding

exercise was wrong when viewed with hindsight, informed by knowledge of "the cover-up undertaken by News International". I simply do not accept that argument: in my judgment, the facts that made it inappropriate for him to look into the allegations made by the Guardian were known at the time. I also observe that the position of Mr Yates was internally inconsistent. On the one hand his thinking was to the effect that "this is nothing, we do this all the time, it is no big deal"; but on the other hand, he clearly thought it was sufficiently important that he should deal with it himself and that it was necessary for an Assistant Commissioner to 'front' E the consideration of the article and, very quickly, to speak to the press about it. There was no question of delegating the task.

¶8.23 If it was sufficiently important for him to deal with, he ought to have raised with the Deputy

Commissioner, Tim Godwin, or Sir Paul Stephenson whether it would be better if someone else undertake the exercise because the deputy editor of the NoTW was his friend. I conclude this discussion by making clear that I do not suggest that, in reality, he approached the task with anything other than complete integrity and in good faith. Having said that, accepting and retaining the task was, at the time, a misjudgement on his part.

¶8.24 Sir Paul believes that Mr Yates did not give thought to whether there was a conflict of interest because of a defensive mindset:441

"I suspect that defensive mindset set in very early, for all the reasons I outline, that stopped us challenging ourselves, that stopped us going back and challenging what was the reason for the original investigation stopping short, albeit we didn't know it stopped short. I think that is the more likely reason why Mr Yates didn't decide that he had a conflict or not."

¶8.25 It is certainly a plausible explanation. Fully articulated (as put by Mr Rhodri Davies QC in his

closing address for NI) it is that Mr Yates (and indeed DCS Williams) did not interpret the Guardian's article as a non-judgmental suggestion that the practice of voicemail interception merited another look. Rather, he saw it as an unjustified attack on the integrity of the 2006 investigation that it did not occur to him to consider whether it was appropriate for him to carry out the exercise. In addition, this latter question did not subsequently strike him because he made up his mind within the space of what can only have been a few hours that there was no need to look further and that there was no evidence of a conspiracy, least of all one involving Mr Wallis.

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¶8.26 It is right that Sir Paul knew that Mr Yates was a friend of Mr Wallis (although he said that he

did not know the extent of the friendship).442 Sir Paul very frankly admitted that he did not make the connection. When it was suggested to him that it might have been inappropriate for Mr Yates carry out the exercise, he said:443

"I think you're crediting me with a level of analysis that I wouldn't and didn't give to this matter. It was just another headline, a sort of – I don't mean to say this dismissively – some noise about an event that I expected someone to pick up and deal with … I didn't connect it with Mr Wallis. I didn't give it any particular thought."

¶8.27 It does not seem, however, that Sir Paul would have acted differently even if he had made

the connection between Mr Wallis and the allegations made by the Guardian. Sir Paul said in evidence that:444

"Had [Mr Yates] come back to me with this … I might have expected him to get somebody within his business group to deal with it and ensure there could be no allegations of impropriety against him. I do have to say – this is hypothesis and we're speculating just a little, sir – that probably Mr Yates would have felt that he was more than equipped to deal with it. It is not as if, in our professional lives, that we don't

¶E actually, as chief constables and senior officers, investigate people who are known to

us socially and who have been friends, and to actually say somebody else has to deal with it would almost be saying that I do not have sufficient integrity to deal with it. "Whether, with hindsight, it might have been wise to do that, I think that's an entirely different question. I can understand why he didn't do it, but with hindsight it might have been wise."

¶8.28 Sir Paul was challenged on his evidence that chief constables and senior officers investigate

people known to them socially and who have been friends. He clarified his evidence as follows:445

"Well, as a police officer, when I've been asked to do discipline and complaints in the past going back years, yes, I've investigated people who have been known to me."

¶8.29 This clarification, in fact, answers a different question to that being addressed. When

dealing with complaints against the police and internal discipline issues it is inevitable (and particularly so in a small force) that officers will have to deal with colleagues who are known to them. That is very different from leading or taking part in the investigation of civilians who are personal friends (or, I might add, investigating organisations in which personal friends hold leadership responsibilities). There are strict rules about conflicts of interest of this type (including the maintenance of relationships with those who are under investigation) and I do not anticipate for one moment that Sir Paul was distancing himself from those rules.446

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¶The "fact-finding" exercise 8.30 I turn now to the exercise that was conducted to find the facts, which Mr Yates started and

on which he announced his conclusion all within the same day as the article had appeared in print, namely 9 July 2009.

¶8.31 Mr Yates explained that he received informal briefings about the investigation before he

chaired a Gold Group meeting at 11:00hrs: this was a formal meeting to discuss facts and record decisions. Mr Yates said that numerous people who had worked on the enquiry at various levels were involved, including DCS Williams, DCS Surtees and D/Supt Southworth.447 According to DCS Williams, he was with Mr Yates for most of the day, explaining to him what the police had done during the original investigation. The documents shown to Mr Yates were the strategy for informing potential victims, a copy of the indictment and a short briefing document.448

¶8.32 There were three problems with the process that was adopted on that day. The first and

fundamental problem was that none of the officers, including DCS Williams, who had overall responsibility for briefing Mr Yates, were given any real opportunity to refresh their memory of the nuances of what had been a comparatively complex investigation, involving seizure of a vast quantity of material, difficult issues of law and the overwhelmingly important competing E demands consequent upon the threat of terrorism. Mr Yates did not wait for the documents (including the decision log) to be retrieved from storage, leaving DCS Williams with access only to the memories of the officers available to discuss the investigation and to very limited documentation.449

¶8.33 Mr Yates has submitted that before he reached any conclusions he ensured that DCS Williams

and senior members of his team had satisfied him that they had a full recollection of all salient points of the investigation. It was, however, quite unrealistic of Mr Yates to expect that the officers could do so in such a short time, even if they believed they could. This briefing was about the material discovered, the actions taken and the decisions made just short of three years beforehand, when there can be no doubt that the officers had since been involved in extremely complex counter terrorism investigations. They could not conceivably have remembered all the detail, let alone appreciate that what they had intended to happen by way of exit strategy had not been followed through.

¶8.34 The minutes of the Gold Group meeting450 indicate that Mr Yates approached the task by

asking some perceptive questions. These included the question: "Why was there not a more wide ranging investigation?" According to the minutes, he was told that the reason was that: "There was no evidence to expand the investigation wider, which, if it had done, then this would have been an ineffective use of public resources." Further, in answer to the question: "What other journalists were involved?" Mr Yates was told: "There was no evidence at that time to implicate involvement in [sic] any other journalists". Under the heading "Reopening of investigation" it was written: "No evidence to justify". In all likelihood it was DCS Williams who gave these answers and communicated this message to Mr Yates because it appears

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that he was the only officer present at the Gold Group meeting who would have had any knowledge of the detail of the investigation.

¶8.35 Leaving aside the question of whether the evidence uncovered by Operation Caryatid ought

properly to be labelled as direct, circumstantial or inferential evidence, it is important to note from the outset that the message communicated to Mr Yates was not that there was "some evidence" that the criminality extended beyond Mr Goodman, but that there had been insufficient evidence to prosecute other journalists (which, as I have found, was the understanding, in 2006, of the officers involved in Operation Caryatid, including DCS Williams). Instead, it appears that in the mind of DCS Williams on 9 July 2009, that understanding had become a belief that, although there had been plenty of speculation that other journalists had been involved, the sum total of the evidence uncovered by Operation Caryatid was not capable of being taken forward or developed as part of a wider investigation. It is quite likely that this initial briefing provided the prism through which Mr Yates viewed the information he was given in subsequent oral and written briefings.

¶8.36 I consider that the answers given by DCS Williams did not accurately reflect not only the value

of the material that the police had seized but also the way in which the investigation had been brought to an end. Given the haste with which this "fact-finding exercise" was being

¶E undertaken, however, it is difficult to be over-critical of DCS Williams at this stage.

¶8.37 When he came to make a statement in September 2011, DCS Williams had obviously had the

chance of reviewing the contemporaneous material in detail and so was able to deal with the matter rather more reflectively and in greater detail than would ever have been possible in July 2009. The contrast is obvious. The more recent explanation provides the context in these terms:451

"In the months following the arrest and right up to the prosecution … DAC Clarke's decision to continue within the parameters as originally set and thereby not go any further in terms of the material seized from Mulcaire and Goodman, remained. My understanding of this enduring rationale was that this would have involved a commitment of huge resources that could not be justified given the climate concerning, in particular, terrorism. On balance it was felt that the safety of the public was more important that protecting invasions of privacy; and that it was not the job of police to regulate the media, rather that it should regulate itself through the PCC."

¶8.38 The differences are important. To say, for example, that there was no evidence to implicate

other journalists (which, in any event, although the expressed view of DCS Williams did not, in my judgment, start to be an accurate analysis of the material available to the police), is not the same as saying that the decision not to go further was based on the resource commitment involved. It is worth adding, in parenthesis, that even if Mr Yates had waited for the records to be unearthed, he would not have found a record of the briefing given to Mr Clarke at the end of September 2006 or of the rationale behind the ultimate decision not to expand the investigation beyond Mr Goodman and Mr Mulcaire because there was no such record. A careful study of the decision log, the statements and interviews (which contained, for example, the references to other possible victims) would, however, have revealed a rather different picture to that which he had been given during the briefing.

¶8.39 In relation to the absence of the record, the MPS submits that although the specific

reasons were not set out in any detail, given the successful and widely reported charging and subsequent public prosecutions of Mr Goodman and Mr Mulcaire together with the

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formulation of a victim strategy: "it should have been evident to anyone subsequently reviewing the decision that it was not made on the basis that there were no further leads to investigate." It is sufficient for me to say that I do not understand how that follows: the prosecution and the strategy say nothing about whether there existed viable investigative leads when the decision was made to close down the investigation.

¶8.40 The MPS also submits that the lack of recorded reasons did not have any material impact on

the 2009 decision, as the same officers who conducted the original investigation also provided detailed briefings and advised Mr Yates. Although true, the fact is that neither DCS Williams nor any other officer who spoke to Mr Yates on 9 July did, apparently, recall accurately why the decision was made by Mr Clarke and so did not provide a full picture for Mr Yates.452 If what records there were had been available, rather more detail might have come back to mind. I understand the reasons but it reveals an important flaw in what was happening on that day.

¶8.41 DCS Williams has submitted that although the final decision not to expand the investigation

was not recorded, the decision log had considered the question of expanding the investigation and the issue of resources and that the final decision was part of that ongoing decision making process. He goes on to argue that Mr Yates knew why the operation had been closed down, but I have seen no evidence that Mr Yates was ever told, in terms which would have been E sufficiently clear to correct the initial understanding he was given (that there was no evidence to expand the investigation wider), that Mr Clarke made the decision essentially on the basis of the necessary prioritisation of counter terrorism investigations so that his decision said little if anything about the quality of the evidence or viability of the leads. The fact remains that the rationale was not explained adequately to Mr Yates and a clearly recorded decision setting out the rationale would, in all likelihood, have avoided the misunderstanding that clearly arose. Suffice to say, I have little doubt that the answers given on 9 July to the questions posed by Mr Yates caused him to misunderstand the scope of what had been revealed during Operation Caryatid and to go on to approach the exercise from entirely the wrong angle, that is to say focusing exclusively on the question of whether the Guardian article had revealed any evidence that the police had not previously seen.

¶8.42 The second problem was that Mr Yates did not approach the exercise with any intellectual

rigour or scrutinise the information he was given. As explained above, crucially, Mr Yates pursued only the question whether anything was new: he did not pursue the questions which the article raised. It is clear from the minutes of the Gold Group that Mr Yates was informed that a large amount of material had been seized. Without undertaking a full scale review, in the light of the challenge to the MPS itself, it would have been sensible and responsive to the allegations in the article to ask a number of questions. Had the material seized from Mr Mulcaire all been analysed and, if not, why not? What was the basis of the decision to limit the indictment as drafted and (in relation to the counts on the indictment which it was not suggested involved Mr Goodman) to whom was Mr Mulcaire supplying that information and why? Who had caused Mr Mulcaire to obtain so many mobile phone numbers, PIN details and other material which, on the face of it, could give rise to the inference that he was seeking to get information by intercepting voicemail messages? Was it right that not all possible charges were pursued against News Group personnel? Was there any material to suggest that other

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reporters were involved? It does not appear that any detailed consideration was (or, indeed, could have been) given to the substance of what was being alleged.

¶8.43 Mr Yates wrote himself a file note on 9 July (or within 24 hours)453, in which he recorded

the "Principles to be adopted regarding Operation Caryatid and request by Commissioner to establish the facts around the case". He included in his list of principles the "Scale, scope and outcome, in terms of the original case", "Any complexities and challenges around the evidence then and any advice they have provided" and "The level of disclosure and who had reviewed what material".454 Had Mr Yates explored properly these headlines, which he set for himself, he would (or should) have ascertained the true factual position, namely, that the police held vast quantities of documents that had not been analysed and very few of which had been reviewed or considered by the CPS or Counsel (save only for the very limited purpose of disclosing unused material). He might also have learnt that, although the terrorism threat fully justified limiting what was to be done in Caryatid, there was an entirely reasonable view that there had been a number of viable leads that could have been pursued had the investigation continued.

¶8.44 Instead, Mr Yates appears to have accepted at face value the information provided by DCS

¶Williams, relying only on his memory. Mr Yates was asked to what extent he tested the E proposition that there was no evidence to implicate other journalists. Mr Yates replied

that he would have asked whether counsel and the CPS saw the evidence and whether the unused material was reviewed properly.455 Given that the CPS was only asked to consider the investigation actually undertaken and that the purpose of reviewing unused material is limited, the nature of the allegations made by the Guardian meant that this approach was plainly insufficient.

¶8.45 In explaining his limited approach, Mr Yates relied on the fact that he was not briefed that

there was circumstantial or indeed other evidence which implicated journalists other than Mr Goodman.456 DCS Williams has accepted that the initial briefings he gave Mr Yates were not as thorough as he would have liked and were conducted from memory, without the benefit of documents, all as part of a hurried response to the Guardian article. It is undeniable that if DCS Williams along with his team of officers had been able to recreate for Mr Yates the much more nuanced state of the investigation and the context within which operational decisions had been taken, Mr Yates would have been in a better position to consider the matter and is unlikely to have publicly expressed himself on 9 July as he did. I am simply not in a position to say whether he would have reached a different conclusion.

¶8.46 I also accept the general principle that it is essential to the efficient functioning of the MPS

that a senior officer is able to rely on the total accuracy of the information given to him by officers under his command, and I do not doubt that DCS Williams intended to brief Mr Yates entirely accurately. However, these matters are by no means a complete answer for Mr Yates because he had to ensure that he had elicited all material facts from DCS Williams before relying on the latter's assessment of those facts. Given the very specific allegations made by the Guardian, Mr Yates should have required DCS Williams to explain precisely what had been discovered that could potentially implicate journalists other than Mr Goodman, whatever the quality of the information (giving sufficient time to review the material gathered, perhaps

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even to speak to the case officers, such as DI Maberly, who had been "hands-on" during the investigation). Mr Yates, as the senior officer in charge of deciding what the response of the organisation to the Guardian article should be, ought then to have considered for himself whether there were evidential leads and whether there ought to be a scoping exercise with a view to deciding whether the full investigation should be re-opened.

¶8.47 Further, Mr Yates not only failed to require a more measured review of the position but he

positively refused to allow it to happen before announcing his conclusions. The action points of the Gold Group meeting on 9 July simply did not include a review of the papers in storage or the decision logs. This need not have taken a great deal of time but Mr Yates decided upon a very speedy response rather than mature reflection. By not establishing accurately all the relevant facts, Mr Yates proceeded on the false assumption that there was no material in police possession that could justify reconsideration of Operation Caryatid; thereafter, the only question of any interest to Mr Yates was whether the Guardian article revealed any "new evidence".

¶8.48 This, then, is the third problem with the exercise that was undertaken on 9 July. The minutes

of the Gold Group meeting indicate that it was clearly decided at an early stage that there was no evidence to justify reopening the investigation: almost immediately, Mr Yates (and DCS Williams) had decided to dismiss the Guardian article in its entirety. The final action E point was for the Directorate of Public Affairs to prepare press lines for Mr Yates to deliver to camera outside New Scotland Yard that afternoon. Although DCS Williams went on to retrieve the papers and write a paper with DCS Surtees, the course had been set and a public denunciation of the Guardian delivered. Whatever emerged when the papers were retrieved and the decision logs reviewed, it is difficult to see how the MPS would have been able to move away from the decision so quickly and so publicly announced.

¶8.49 This is borne out by the minutes of the Gold Group meeting which suggest that the police

were more astute to manage aspects of public relations than to review the investigation. As the MPS has accepted, the exercise was framed too narrowly and the decision had all the hallmarks of haste and none of reflective calm. Lord Blair expressed the same view in evidence:457

"From what I can see, that decision was just too quick. It was just why could you not have gone back with all those allegations and looked further into what was – what did the material actually say?"

¶8.50 The result was that, on the afternoon of the day of the Guardian article, Mr Yates issued a

press release458 publishing his conclusion that no additional evidence had come to light since the prosecution of Mr Goodman and Mr Mulcaire, and therefore that no further investigation was required. In the press release Mr Yates stated that:

"This case has been subject of the most careful investigation by very experienced detectives. It has also been scrutinised in detail by both the CPS and leading Counsel. They have carefully examined all the evidence and prepared the indictments that they considered appropriate."

¶8.51 This statement was inaccurate. It is known now that neither the CPS, nor Counsel, nor indeed

the investigating officers, had examined all the material for evidence of the involvement of other journalists. It suggested that the material seized from Mr Mulcaire had been thoroughly

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examined and every evidential lead pursued as far as it could be with the results put before the CPS and counsel for overarching advice on the widest range of outcomes. Put simply, that is not what happened: the material had not been analysed for evidence incriminating others.

¶8.52 Mr Yates has claimed that DCS Williams assured him that counsel had spent two days reviewing

the material and that no additional suspects had been identified. Given the submissions made by DCS Williams on this point, it is quite possible that he provided that assurance but any inquiry would also have revealed that counsel had not been tasked with reviewing the material in order to advise on the extent to which there was evidence of the involvement of others. Not only had counsel not analysed the material for that purpose: neither had the police. Indeed, as explained below, if such an exercise had taken place, it could not have been concluded within two days.

¶8.53 Both DCS Williams and DCS Surtees have argued that it was their understanding that counsel

did "examine" all the material seized during the investigation and DCS Williams has submitted that it was the responsibility of the CPS both to advise on charges and to assess whether further evidence was required for the prosecution. With respect, the role of counsel is not to act as investigators and, unless specifically so instructed (which is not suggested) it is wholly unrealistic to suggest that it included examining all the material for evidence that might

¶E justify further police investigation against anyone not, at that stage, even the subject of any focused investigation.

¶8.54 When explaining why no further investigative steps were taken in 2006, the officers gave clear

evidence that pursuing the investigation would have required a comprehensive analysis of the documents seized and that such an analysis would have been an enormous undertaking and not a straightforward exercise. Mr Clarke and DCS Williams have explained that given the nature of the material (which included hundreds of unstructured handwritten pages),459 it was not a question of reading what had been seized from start to finish. Analysing the material would have required a time-consuming and systematic analysis of the papers, with the need to create schedules and spreadsheets of the material in order to cross-reference all the information. Mr Yates would have known that any review of unused material for the purposes of identifying exculpatory material would not even have approached such an involved exercise.

¶8.55 Mr Yates also addressed in the press statement the question of the number of victims of unlawful voicemail interception:

"Their potential targets may have run into hundreds of people, but our inquiries showed that they only used the tactic against a far smaller number of individuals. … "It is important to recognise that our enquiries showed that in the vast majority of cases there was insufficient evidence to show that tapping had actually been achieved."

¶8.56 Given the discoveries that Operation Caryatid had made, these statements were also wholly

inaccurate. The fact that a substantive offence could not be made out for purely technical reasons would not give the 'potential targets' comfort in terms of measuring the level of intrusion to their privacy but it should also be reiterated that the commission of a criminal offence under the CMA did not depend for its proof on the precise timing of the interception.

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Mr Yates explained that these statements reflected his genuine understanding and that they were based on the information he had been given:460 "That is definitely what I thought at the time, and it was in good faith, based on the briefings I'd received, but I absolutely accept now that I got that wrong and I made a fundamental misjudgment there."

¶8.57 The minutes of the Gold Group meeting461 demonstrate that Mr Yates was briefed as follows:

"3000 names During searches of defendants premises, large amount of material seized, names, numbers etc. One defendant was a private investigator and as they had accessed mobile phone company systems, they had interest and potentially access to numerous people/phones. There was no evidence to prove criminally any other persons phone had been intercepted. There was strong evidence that they had intercepted 3 Royal family aides phones and a further 5 other high profile people, all of which were subject to the charges and proceedings in court. Wider people were not informed as there was no evidence to suggest there was any criminal activity on their phones".

¶8.58 DCS Williams was asked during his evidence whether it was correct that the tactic had only E

been used against a far smaller number of individuals. He replied: "It was from my perspective of what would constitute an interception. I totally understand that there is a different view on that now."462 Even if the narrow interpretation of RIPA were correct, however, and therefore that the police had only positively proved voicemail interception in a small number of cases, the statement was nonetheless misleading because it suggested that the police had been able to rule out voicemail interception beyond that small number of victims.

¶8.59 It also appears therefore that DCS Williams erroneously put forward the need to apply the

narrow interpretation of s1 of RIPA as one of the reasons why the investigation was not widened in 2006. Both DCS Williams and DCS Surtees have submitted that counts 16 to 20 were contained on the indictment in order to "test" the law.463 DCS Williams said this was agreed by the CPS and Counsel to see if the convictions could be secured despite having no proof that an interception had taken place. There is no doubt that DCS Williams misunderstood or failed accurately to remember the more nuanced advice given by Counsel in August 2006 at the conference he attended and that DCS Surtees acquired the same misunderstanding.

¶8.60 It is surprising that DCS Williams appears to have briefed Mr Yates that others were not

informed on the basis there was no evidence to suggest that there was any criminality in relation to their mobile phones, because the victim notification strategy, which DCS Williams had to hand that day, had been designed to ensure that large numbers of potential victims were informed because the only criterion was that the "suspect" numbers had dialled their unique voicemail access number.

¶8.61 It is noteworthy that, on 22 February 2012, when he signed his witness statement, Mr Yates apparently still believed that there was no unlawful interception unless it could be proved

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that the interception took place before the relevant voicemail message had been heard by the intended recipient.464

¶8.62 The important questions that arise from this analysis of events are:

(a) why Mr Yates carried out this exercise in such a hurried way, without any proper consideration of the serious allegations made by the Guardian; (b) why DCS Williams was prepared to brief Mr Yates in unqualified terms without refreshing his memory fully from the decision logs and case papers and did so inaccurately; (c) why, within a matter of hours of the Guardian article, both men decided to dismiss the article in its entirety; and (d) to what extent, if at all, can the matters of concern in (a) to (c) above be explained by the relationships Mr Yates enjoyed with individuals at NI or the relationship more generally between the MPS and NI.

¶8.63 In my judgment, the approach taken by Mr Yates can be explained entirely by the inappropriately

dismissive and closed-minded attitude he adopted from the outset. This attitude stemmed from two main factors. The first was that he appeared to give less credence to the allegations

¶E than they deserved simply because they were made in a newspaper article. The second is the

defensive mind-set alluded to above. Mr Yates provided an important insight into the level of respect he had for the allegations during his evidence when he said:465

"This was a simple exercise and one of a number of exercises that the Commissioner or Deputy would ask ACs like me to do almost on a weekly basis. It was an article in a newspaper, and it was no more, no less than that. So the fact that I sort of cleared my diary and did something relatively formal around this, recognising some of the challenges, is actually qualitatively different than many times you'd do it. So it's what it was. It was an article in a newspaper. Events make that look very different, I know, but give me the credit, this was an article in a newspaper, that's what it was about. It wasn't a formal review."

¶8.64 Further, when asked whether the issues raised by the Guardian were wide-ranging, serious and important Mr Yates said:466

"… One looks at the invasion of privacy uncovered by Motorman and Glade and the sentences they got there, which was conditional discharges, so I would not put it at the serious end. What we know now puts it at the very serious end, but in July 2009 it was phone hacking. I was three months into a new job as head of anti-terrorism, we were dealing with the fall-out of a very difficult operation up in Manchester, which was still going, numerous other high-profile operations involving the security of the state. This did not present itself as a hugely serious thing in 2009."

¶8.65 Whilst Mr Yates cannot be criticised for judging the relative seriousness of voicemail

interception as markedly less grave than terrorism, this expression of his thinking reinforces the view that he did not apply himself fully to the task. Mr Yates has since added that it is relevant context that he was pressed with challenging work in relation to the ongoing fight against terrorism and the numerous high priority operations in progress. I do not challenge

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for one moment that he would have faced such pressures, but it would have been perfectly reasonable for him to discuss with Sir Paul or his Deputy, Tim Godwin, the delegation of the task of addressing the Guardian's allegations to a Deputy Assistant Commissioner or a Commander, or to raise with them any general resourcing concerns that might have precluded a proper assessment of the allegations: his "new job as head of anti-terrorism" and the role of his department were, indeed, of critical importance but there was no point in accepting responsibility for doing the exercise if he was not prepared to make sure that it was done properly.

¶8.66 Regarding the defensive facet of the attitude assumed by Mr Yates, Sir Paul Stephenson

offered the following view why the decision not to reopen the investigation was made and maintained:467

"I think that what happened in 2009 is that within the Met, we developed a fixed mindset and a defensive mindset around this whole issue … I think that mindset was based on a number of issues, none of which are an excuse as to why we didn't get this thing right … I think the start of that mindset was very much about: it's inconceivable for people in 2009 to believe that an inquiry led by Mr Clarke would limit itself for any improper purposes … I think after that, in the absence of [establishing] what the Met had in its possession – I think that's been rehearsed in this Inquiry and in E various places. That's regrettable. That absence caused the Met to be more and more convinced that the original investigation, therefore was a success in totality, and of course that wasn't the case … what we didn't do is go back and actually challenge the reasons for those decisions in 2006 … We didn't go back and challenge the reasons why it was limited because we didn't know that it was limited, and had that taken place, we might have been in a better place … I then go on to think that we got ourselves almost hooked on a strategy – on a defensive strategy that we would not expend significant resources without new or additional evidence … the defensive mindset we established was very much based on the flawed assumption that the original one was successful investigation in totality and the absence of challenge, I think, led us into some difficulty, if that makes sense."

¶8.67 The MPS accepts the criticism that it adopted a defensive state of mind. It is worthwhile to add that Lord Blair commented:

"But I am clear, and I'm quite prepared to say it, that was a decision that appears too hasty, and I thought some of the way in which Sir Paul Stephenson suggested the closed mindset of because it had been Peter Clarke who had made the decision and he was so respected, it was a very interesting piece of what you can describe sometimes as group think."

¶8.68 I find that this defensive attitude was an important factor in explaining the approach taken by Mr Yates.

¶8.69 The limited respect Mr Yates had for the allegations by virtue of the fact that they appeared

in a newspaper combined with his belief (albeit justified) in the absolute integrity of the 2006 investigation, no doubt largely because Mr Clarke had been at its helm, translated into a real reluctance to challenge or revisit past decisions. This attitude prevented him from standing back from the article and assessing its allegations dispassionately, despite the fact that this is what he had been given the responsibility for doing. In my judgment, it

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explains his willingness to accept at face value the assurances given by DCS Williams that the investigation was exhaustive. It led him, almost inevitably, to the peremptory conclusion that the investigation would not be reopened. It resulted in "a swift and offensive response", as described, accurately in my judgment, by Mr Rhodri Davies QC in his closing address. I must make it clear, however, that I do not find that there is any evidence from which to infer that any relationships with NI in general, or Neil Wallis in particular, contributed to this attitude or approach.

¶8.70 It is undeniable that Mr Yates demonstrated poor judgment in failing to have sufficient respect

for the allegations made in the Guardian article. The article was not tittle-tattle. On its face it was a well-researched piece of journalism. It was significant that three years had passed but the matter remained of real interest to a credible journalist. I also find it significant that Sir Paul Stephenson (who had only heard about the article on the radio) thought it raised sufficiently important issues that he wanted an officer as senior as Mr Yates to "look at it". Furthermore, the then Home Secretary, Rt Hon Alan Johnson MP, said in evidence that at the ACPO conference on 9 July the first conversation he had with Sir Paul Stephenson, in a quiet corner, was about the article. It was unacceptable to treat it in the way that Mr Yates did; it was not the same as any 'article in a newspaper'. It both demanded and merited a more considered and careful response as the reputational damage to the MPS has since amply

¶E demonstrated.

¶8.71 The defensive mind-set outlined by Sir Paul Stephenson also largely explains the approach

taken by DCS Williams. DCS Williams accepted in evidence that his response to the article was influenced or indeed governed by his perception that the Guardian was alleging that the police had tried to hide something:468

"… maybe it's the wrong perception, my feeling was that they were very much saying we were trying to hide something, so my – that's my impression from the coverage, and I'm trying to say there was absolutely no intention to hide anything. And this is what I'm trying to articulate to Mr Yates."

¶8.72 DCS Williams has since accepted specifically that he was defensive but denies that this

prevented him from carrying out an open minded and dispassionate re-evaluation of the decisions taken. I regret that I do not agree. Being open-minded would have led to his appreciation that there were, indeed, other potential victims and other evidence to examine (as he has accepted that he knew) with the result that there was sufficient in the article to justify rather more detailed consideration than the few hours it was given. If he had remembered the pressure on resources at the time, being open-minded would have led him back to the papers – not to re-open the investigation but to put himself in the best position to analyse the criticisms made of the police. In short, being open-minded meant that the allegations in the Guardian could not be dismissed within hours and DCS Williams should have appreciated that Mr Yates (who was entitled to rely on him) was doing just that (albeit without probing sufficiently or making sure that he understood all the ramifications of what had happened three years earlier).

¶8.73 It is right that I deal with the further allegation that DCS Williams sought to persuade Mr

Yates not to reopen the investigation. This was refuted by DCS Williams, who said: "I just gave an explanation of exactly what we'd done and the position we had reached".469 I asked DCS Williams to explain why he presented to Mr Yates that there was nothing else to do when in

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fact there was a great deal that could have been done, albeit that there were understandable reasons why those things were not done. DCS Williams said:470

"No, I see what you're saying ... I'm thinking of it in my head as the evidence I didn't have in my mind of what I would have needed to take that investigation forward, and if I've created the wrong impression, I've created the wrong impression. It wasn't done intentionally. I'm trying to provide a briefing to my senior officer as genuinely as possible as to what we did and what we didn't do then. I'm saying I haven't made these decisions – I accept I'm responsible, I was the SIO, no question about that, but I haven't done it in isolation, I have briefed and talked to a whole range of people and I always do that for the purpose of taking advice and talking things through. Ultimately my decision as SIO where we go with that – in the parameters I've been given with the investigation. I understand what you're saying, but I was not doing anything here to mislead or create a false impression."

¶8.74 The briefing DCS Williams gave was clearly inaccurate and, as set out above, by 2009, he

appeared to have formed the belief that there was "no evidence" in police possession that then could or should be taken forward as part of a further investigation. It is unnecessary for me to attempt to make a finding on how he may have come to hold this belief, despite his contrary understanding in 2006. The effect of the passage of time, with numerous intervening E investigations, combined with the defensiveness alluded to are a potential explanation, but for the purposes of the Terms of Reference, it is sufficient if I make it clear that I accept that DCS Williams was acting in good faith and I do not believe that he intended to mislead Mr Yates or that his approach was calculated to prevent the investigation being re-opened, whether to protect NI or any other improper purpose.

¶8.75 Related to the question about the extent to which the Guardian article merited detailed

consideration, Mr Yates was asked to explain why he did not wait for DCS Williams to provide him with briefing notes before issuing his press statement. He said:471

"… we'd established the facts and the facts were, then, that that Guardian article had some new information for the general public, but it wasn't new to the investigators or to the police, and there was nothing – there was no new evidence presented by that article to warrant reopening the investigation at that stage. So I came out and said it. I could have waited a week, two weeks and choreographed it and spun it, but I didn't. I said it as it was."

¶8.76 Mr Yates was right to conclude that the Guardian had not revealed anything that would

be new to the police, but that was precisely the point. The Guardian was alleging that the evidence should have been acted upon. What Mr Yates failed to recognise was that whether the Guardian had referred to new material was not the same question as whether re-opening the investigation might be warranted. It does not appear to have crossed his mind to ask DCS Williams for full details of what information there was that might possibly implicate other journalists. Mr Yates had also said:472

"If you look at the list of people who were present at that meeting, all very senior, all very experienced. If there had been a scintilla of evidence that said we should be doing something differently, I can absolutely assure you they would have challenged

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me and I'd have challenged myself and we would have done something different. The fact of the matter was, as I was briefed, there was nothing else in that article that led us to suggest that anything else needed to be done immediately regarding the investigation, or anything about the investigation."

¶8.77 Mr Yates ought to have known that it was not safe categorically to state that there was nothing

to warrant any reconsideration of the investigation, or to rely on the lack of contradiction by anyone present at the meeting, in circumstances where no one involved in the investigation had had proper opportunity to refresh their memories from the decision logs and case papers. Further, the very fact of the pressure caused by counter terrorism operations could have alerted those looking back from 2009 to perceive the risk that a decision had been taken at least in part on the basis that, whatever else the material might reveal if further time was spent on it, there were far more pressing operational demands that took priority.

¶8.78 It is remarkable that, even with hindsight, Mr Yates was not prepared to accept that, on 9

July 2009, it would have been more accurate to have said that there may well have been evidence which implicated others, but that the decision was taken in September 2006 to limit the investigation because such evidence was insufficiently clear and operational demands required use of resources to deal with other, far more pressing, counter terrorism work. He

¶E said:473

"I don't accept that's the case either. There may – Keith Surtees may have had suspicions and those suspicions are clearly well-founded now, but they weren't – there was no evidence then. If there had been any evidence for us to pursue … You're judging me on 2012 by what was taking place in July 2009 …"

¶8.79 Mr Yates was asked, directly, whether it was his opinion that there was no evidence at all to suggest that others might be involved, he said:474

"Well, there was the – you know, the long spoken about 'for Neville' email, which again was covered in terms of what its value to an investigation was on several occasions, not least by the DPP and counsel in terms of what it would value – its evidential value. There was nothing else that we knew differently then."

¶8.80 He also said:475

"There was certainly a desire to go to the phone hubs and all that. The evidential challenges were paramount, and as far as I was aware from them were completely that they could not be overcome."

¶8.81 Mr Yates said that he did recall the phrase "a sort of Mexican stand-off at Wapping HQ" but

that: "I think the newspaper lawyers would want to test that warrant and do everything they could do to safeguard journalistic material. I wouldn't necessarily think that would be an unusual turn of events at a newspaper".476 It was put to him that this was part of the inferential picture of whether there was evidence generally speaking against others at the NoTW. He was asked if he saw the relevance of the obstruction from that point of view. His answer was: "I do and I don't".477

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¶8.82 Mr Yates appears to have adopted without challenge, and maintained, the same mistaken

appraisal of the state of the evidence as DCS Williams, namely that Operation Caryatid had disclosed "no evidence" that journalists other than Mr Goodman had been involved in unlawful voicemail interception and had produced no viable leads. Mr Yates contended that lawyers and police officers have different opinions as to what might constitute "evidence" for these purposes. I did not find this distinction to be convincing: in my experience, police officers have a well developed understanding of what constitutes evidence and the more likely challenge arises when police officers seek to push the boundary of what is provable as evidence beyond that which a criminal lawyer will accept.

¶8.83 Apparently Mr Yates continued to fail to recognise that there was material in police possession

that was capable of being taken forward. He maintained that it was only with the benefit of hindsight that his decision not to re-open the investigation was wrong:478

"I have also stated publicly that the decision not to reopen the investigation was a poor one in the light of what we now know … I had no way of knowing at that time the extent of the NoTW's deliberate cover-up of the wider involvement of others in this activity."

¶8.84 Although it is right that Mr Yates cannot have known the extent of the wrongdoing at the E

NoTW, or the extent to which it had been concealed, he undoubtedly did not require the benefit of hindsight to respond adequately to the Guardian article by identifying the reason why Operation Caryatid had not exhaustively pursued all possible leads, by discerning that there were parts of the Guardian article that generated concern and by taking rather longer to consider the position than he was prepared to devote to it. The error of judgment in deciding on immediate and prompt dismissal of the allegations by press announcement that afternoon should have been apparent at the time.

¶8.85 It has been argued that I should not reach adverse conclusions without having heard from

Carmen Dowd. For instance, Mr Yates has submitted that it was the advice she gave in 2006 that influenced his approach to what was achievable given the limited resources available. The problem facing the police team in 2009, however, was not the advice in 2006. It was that it was known that there was an enormous body of evidence which had not been examined, yet it was decided that there would be no further consideration of the allegations unless there was "new evidence"; it would only have been at that stage, when deciding what steps to take in the light of the "new evidence" that Mr Yates would have considered resourcing priorities.

¶8.86 Finally, I must deal with two other aspects of the press release issued by Mr Yates on 9 July

2009. The first concerns the Deputy Prime Minister and asserts:

"There has been a lot of media comment today about the then Deputy Prime Minister John Prescott. This investigation has not uncovered any evidence to suggest that John Prescott's phone had been tapped."

¶8.87 This statement was made not only in response to media comment, but also in response to a

letter received that day from Lord Prescott (then the Rt Hon John Prescott MP). Lord Prescott had written to Sir Paul Stephenson asking whether the Guardian had been correct to allege that the MPS held the names of all those whose phones were targeted, including his, and if so, why the police did not inform those people or take any action.479 Mr Yates had also telephoned

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Lord Prescott, before he spoke to the press, to reassure him that there was no evidence that his mobile phone had been the subject of voicemail interception.480 It is extraordinary that Mr Yates was prepared to give this assurance both to Lord Prescott personally and in his press release because it is clear from the minutes of the Gold Group meeting that DCS Williams was not able to state definitively that Lord Prescott was not a potential victim. An action point recorded in the minutes was that DCS Williams was to confirm the position; it noted: "If he had been subject to interception and evidence supported this then he would have been informed … ACTION – PW to confirm."

¶8.88 The minutes suggest therefore that the assurance given by Mr Yates to Lord Prescott was

based on nothing but an assumption on the part of DCS Williams, which he had not had time to confirm, that Lord Prescott could not have been a potential victim because if he had been, he would have been informed pursuant to the victim notification strategy. This is despite the fact that DCS Williams did not oversee the strategy to make sure that it had been executed as intended and, given that it was not in fact overseen by anyone else, DCS Williams could have received no confirmation that it had been put fully into effect.

¶8.89 DCS Williams has raised in submissions that in a written briefing to Mr Yates, dated 9 July

¶2009, a DCS Timmons stated the following: E

"Deputy PM John Prescott – PW and KS without reference to the exact documentation believe that Mr Prescott was not directly targeted although it is believed that members of his staff may have been. There has been no direct contact with Mr Prescott and he is not believed on the information available at this time that he was a 'victim of interception'."

¶8.90 If this briefing note accurately reflects the position, then it gives a different or additional

explanation for why he reassured Mr Yates that Lord Prescott was not a potential victim of voicemail interception. DCS Williams has submitted that at that time, the view of what constituted 'interception' was narrower. DCS Surtees has also submitted that Mr Yates accepted the narrow interpretation of "victim" and that up until 2010 everyone was working on that interpretation. This all indicates that DCS Williams and DCS Surtees, were briefing Mr Yates on the basis that an individual was only a victim if the police could prove that there had been an interception according to the narrow interpretation of s1 RIPA. It also indicates that they did not have in mind that whether someone was a "potential victim" was as important as whether someone could be proved to be a victim, given that the investigation had not been exhaustive, and ignored the prospect that the individual was a victim of an offence under the CMA or the target of a conspiracy.

¶8.91 The following day, after DCS Williams had apparently checked the position, he told Mr Yates

that Lord Prescott had not been the subject of voicemail interception.481 Either DCS Williams gave Mr Yates this reassurance on the artificially narrow basis that a person could only be a victim (or potential victim) if voicemail messages left on his or her own phone had been intercepted, rather than voicemail messages received by people close to him/her, or, if this was not his approach, he gave the reassurance without checking the case papers because if he had carried out a reasonably careful review of the case papers he would have ascertained:

(a) either from the papers seized from Mr Mulcaire or from the record of interview of Mr Mulcaire on 9 August 2006 at 16:35 hrs, that Mr Mulcaire had recorded in his papers the name, John Prescott, with 'advisor' and then 'Joan Hammel' underneath and her

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telephone numbers and pass codes and an address in NW1; or (b) that on 30 August 2006 DI Maberly had emailed Vodafone asking if they could tell him whether anyone had listened to the voicemail of a number of people, which included "Tracey Temple (Prescott)"; or (c) that on 2 October 2006 DI Maberly had emailed O2 identifying two persons of concern and asking O2 if they featured in the analysis O2 was preparing: the first name was "Joan Hammell (linked to prezza)".

¶8.92 Any of these would have alerted DCS Williams to the fact that Lord Prescott had, indeed, been

suspected of having been either a potential victim or a possible target. Once it is appreciated that his staff have been targeted, it is not difficult to conclude that they were being used as a means of learning about his private communications.

¶8.93 Precisely what happened and the exact thinking of Mr Yates and DCS Williams on this issue

could not be explored without recalling the witnesses and delaying this Report. That would not have been a proportionate step to take when the failure to notify Lord Prescott was so abundantly clear and the cause of that failure could be narrowed to some form of mistake or misjudgement rather than any improper influence connected to NI.

¶8.94 The second aspect of the press statement which requires further consideration is that Mr

E Yates stated that the MPS was taking all proper steps to ensure that, where there was evidence that people had been the subject of voicemail interception or there was any suspicion that there may have been, that they had been informed. The actions taken to comply with this undertaking and the extent to which they were successful are below.

¶The initial reaction of the CPS 8.95 Keir Starmer QC, who had succeeded Lord Macdonald as the DPP, was concerned by the

assertions made in the Guardian, in particular the claim that deliberate decisions had been taken not to prosecute NoTW executives (which could have involved his staff). He therefore convened a meeting at which he asked senior lawyers to conduct an examination of the material supplied to the CPS by the police so that he could be satisfied that appropriate action had been taken at the time. He also asked for a chronology, setting out the actions taken and the sources of information.482 Simultaneously, the office of the DPP came under pressure from the Home Secretary and the press to explain the nature of its involvement in 2006:483 all this demonstrates the extent to which the allegation in the Guardian was not 'just another article'.

¶8.96 In contrast to Mr Yates, Mr Starmer explained that he took the Guardian article seriously both

because of the important issue it raised and because of the number and seriousness of the requests coming in to him that day. They persuaded him that this was something he really needed to understand and that he needed to reconstruct the picture as quickly as possible.484

¶8.97 Mr Starmer became aware of the press statement that Mr Yates gave later that afternoon.

¶This was some of the first information he received and: "given his position at the time, I have

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to say I took it pretty much at face value in building up the picture".485 At that stage, however, he did not know how little time Mr Yates had devoted to his "establishment of the facts exercise". Later that same evening (9 July 2009) Mr Starmer issued his own press statement in the following terms:486

"I have no reason to consider that there was anything inappropriate in the prosecutions that were undertaken in this case. "In light of the fresh allegations that have been made, some preliminary enquiries have been undertaken and I have now ordered an urgent examination of the material that was supplied to the CPS by the police three years ago. I am taking this action to satisfy myself and assure the public that the appropriate actions were taken in relation to that material. "Given the nature of the offences, the amount of material is of course extensive and complex, but it has all been located and a small team is now rapidly working through it. This process will need to be thorough, so it will necessarily take some time. I am only too aware of the need for urgency and I will issue a further statement as soon as this work has been completed. I anticipate being in a position to do so in coming days."

¶E 8.98 Again, in direct contrast to the approach taken by Mr Yates, in his press release Mr Starmer

gave a provisional indication but reserved his position until a thorough examination had been conducted.

¶8.99 It is important to appreciate that Mr Starmer intended that this exercise should be limited:

the examination was confined to the material that the police had physically supplied to the CPS and not the unused material, because reviewing the unused material would have been an extensive and time consuming task.487 Thus, for example, the "for Neville" email was part of the unused material and so was not examined.488

¶8.100 This underlines the point made above: by its very nature, unused material is only examined

for the purpose of disclosing material that might undermine a prosecution case or assist the defence in a prosecution being mounted. For the DPP, the critical issue was to identify what the CPS had done in the light of the material that had been provided as part of a file to prosecute or advise on prosecution. This was a reasonable approach and the fact that Mr Starmer wanted some time taken over it also demonstrates a difference from the line taken by the MPS. As it happened, however, due to a misunderstanding, the team at the CPS did not examine the entirety of the evidence in their possession. The overlooked documents included the witness statements and exhibits used in the prosecution of Mr Goodman and Mr Mulcaire.

¶8.101 Unlike the police (where all the relevant officers, save for Mr Clarke, continued in service), the

CPS in general and Mr Starmer in particular were hampered by the fact that Lord Macdonald was no longer in post and Ms Carmen Dowd had left the service.489 Throughout 2009 and 2010, Simon Clements, the new Head of Special Crime Division, was responsible for briefing Mr Starmer on issues relating to voicemail interception490 although he had not been involved

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in the matter in 2006 or 2007. Accordingly, the CPS was reliant, perhaps over-reliant, on what the MPS told it about the events of those years. The paucity of material available to the CPS at this early stage is demonstrated by the notes of a conference which took place with junior counsel, Mr Mably, on 10 July 2009.491 The principal point which he remembered was the need to "ring fence" the investigation in order to avoid personal embarrassment to Princes William and Harry. Unsurprisingly, he could not recall any of the fine detail of the case.

¶8.102 As if again to underline that this was not simply 'just another article', the 9 July 2009 also saw

the Chairman of the Culture Media and Sports Committee (CMS) write to Sir Paul Stephenson, asking him to submit written evidence to the Committee concerning the investigation into voicemail interception.492

¶After 9 July 2009: the on-going response 8.103 The following day,¹⁰¹⁰ Financial controls and payments for stories 694 HC Hansard, 20 July 2011, vol 531, col 918; see also columns 922, 941, 944 s17(3) of the Inquiries Act 2005 Centro Europa 7 SRL and Di Stefano v Italy (1Application no. 38433/09) Part 1, Public Order Act 1986; Protection from Harassment Act 1997 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf PWC adspend study, http://www.iabuk.net/research/library/2012-h1-digital-adspend-results ibid p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1.pdf p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-media- ownership.pdf ibid, p164 p50, paras 107-108, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of- Stephen-Abell.pdf. See pp21-23, para 25, ibid for a complete list of Commissioners/Directors of the PCC p58, lines 17-24, DCI Gilmour, ibid Information Commissioner's Office, What Price Privacy?, p15, para 5.2 During the six years that have elapsed, many of the officers involved in Operation Caryatid have been promoted through the ranks. For the sake of clarity, the Report refers to them throughout by the rank which they held at the time they gave evidence rather than the (sometimes different) ranks that they held at the various times of their involvement in the investigation or may hold at the time of publication of the Report p14, para 39(i), ibid pp31-32, lines 16-19, Gerry and Kate McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-23-November-2011.pdf p52, lines 14-17, Dominic Mohan, ibid Part F, Chapter 6 p6, lines 5-8, James Murdoch, ibid p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing-9-May-2012. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-DCI-John-Macdonald.pdf pp22-23, lines 18-7, Charlotte Church, ibid pp117-118, lines 12-2, ibid p27, HMIC (2011), Without Fear or Favour: A review of police relationships, http://www.hmic.gov.uk/media/a- review-of-police-relationships-20111213.pdf p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sandra-Laville. pdf p70, lines 3-14, James Murray, ibid MPS Special Notice 6/01 referred to at paragraph 2.23, Part G, Chapter 3 above pp55-56, Francis Aldhouse, www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-5-December-2011.pdf p38, lines 3-6, Richard Thomas, ibid pp8-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-2.pdf p15, para 3.26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf pp54-55, lines 20-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Afternoon-Hearing-9-December-2011.pdf Part H, Chapter 6, para 4.9 p3, lines 1-24, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf p68, lines 9-12, Harriet Harman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-12-June-2012.pdf p4, para 9, ibid pp17-18, ibid p72, lines 18-19, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-24-April-2012.pdf p44, lines 8-10, ibid p9, para 31, ibid p25, para 5.42 ibid pp1-2, para 3 and pp3-4, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness- Statement-of-DAC-Sue-Akers1.pdf Part F, Chapter 7 pp62-64, lines 15-9, Graham Shear, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-November-2011.pdf p76, lines 17-20, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-26-April-2012.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-B1.pdf K p5, para 12, ibid p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-British-and-Irish-Ombudsman- Association.pdf p81, lines 21-25, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-13-June-2012.pdf Part K, Chapter 7 Part K, Chapter 7, para 4.35 Part K, Chapter 7, para 4.26 [2000] 2 AC 115 at 126Show full note July 2009, Mr Yates convened and chaired a second Gold Group meeting

"to seek update from yesterday's meeting".493 This time DCS Surtees was also present. The following is recorded in the minutes:494

"The original enquiry team (Op Caryatid) were aware that the defendant – Glenn Mulcaire was speaking to numerous people and other journalists to the very nature E of his job. The MPS sent a letter to News of the World asking them to reveal the phone numbers for their journalists so a comparison could be made on the seized data. It appeared [Mr Mulcaire] often used the News of the World switchboard so it was difficult to confirm who he was speaking with. They refused to co-operate. Telephone data went into 50,000 + and although further analysis could have been conducted to identify other journalists etc, it was decided in conjunction with CPS / Counsel, to set parameters and from a proportionality point of view, to focus on evidence that would support charges and attract suitable penalty at court for the level of criminality involved. Effective use of Police resources was also considered at the time and discretion to investigate (R v Blackburn). The data examined did not unravel a conspiracy with other journalists so was not extended. "If the MPS were to consider extending remit now then the phone companies no longer hold the data so it would not be feasible to investigate. It is also worthy to note that the victims subject to interception, apart from the two convicted defendants, they did not have any other suspect / target numbers attempting to intercept their phones. "[DCS Surtees] stated that during the S18 searches of News International the Police team met resistance and threats to use force to remove them from the premises. There was a general lack of co-operation on their part."

¶8.104 These discussions brought to the attention of Mr Yates that evidence gathered did indicate

that other journalists might be involved and that further analysis of the telephone data could have been conducted to identify other journalists, but that no analysis was conducted for reasons of proportionality. They also flagged to Mr Yates the strong resistance from NI to the search. They did not, however, cause Mr Yates to review his decision of the previous day. Even if Mr Yates did absorb that there was in fact evidence that might implicate other journalists,

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he appears just to have accepted, again at face value, that further investigation would not now be feasible. I am driven to the conclusion that having reached his dogmatic conclusion the previous day, he had closed his mind to the question of whether there might be material in police possession that could justify reopening the investigation.

¶8.105 This entrenched position is relevant when considering the protestations made by Mr Yates

that it was not just an eight-hour exercise, but "a continuing exercise of reviewing, considering, reflecting about, you know, whether we were on the right track and whether we needed to do something different."495 In my judgment, given the emphatic and publicly announced response on the previous day, to the extent that there was a continuing review at all, it was extremely focused, wrongly demanding nothing short of "new evidence" before consideration would be given to reopening the investigation. He accepted that after 9 July he did not continue with the establishment of the facts exercise. His evidence was that the continuing exercise "was to do with all about the victims, actually, all about the victims."496

¶8.106 DCS Surtees has submitted further evidence497 in which he states that the minutes of 10 July

2009 were not a wholly accurate reflection of what was discussed and that in this meeting and subsequent meetings he attended, he was vocal in advancing his view that the matter should be re-opened and re-investigated for the very reason that he knew there were

¶E evidential leads to pursue and that the rationale for closing the investigation in 2006 did not

exist in 2009. He states that he challenged Mr Yates and even suggested that Her Majesty's Inspectorate of Constabulary (HMIC) should be appointed to investigate. DCS Williams, in his further evidence, agrees that DCS Surtees was "quite vociferous", at his first meeting with Mr Yates in suggesting that he review or reopen the investigation or that HMIC have an independent look at it.498

¶8.107 DCS Surtees was not asked about 2009 when the evidence was called and Mr Yates has not

been asked to respond to what is now said. In the circumstances, as a matter of fairness, I am not prepared to reach any conclusion on this issue. By 10 July, however, the scene had been set both by the briefing given by DCS Williams and the press announcement of the previous day: it would have required considerably more than DCS Surtees calling for a review to persuade Mr Yates to alter the course he had fixed in place. Furthermore, to be fair to Mr Yates, it is right to note that in the briefing note to which DCS Surtees contributed, dated 12 July 2009, and considered below, the evidence was not represented in a way that steered the reader to the conclusion that there were viable leads.

¶8.108 It is appropriate next to refer to the fact that, on 11 July 2009, an article written by Andy

Hayman was published in The Times. In that article, Mr Hayman claimed that the original investigation had "left no stone unturned" and that if there had been the slightest hint that others were involved, they would have been investigated. These were extraordinary assertions to make given the true scope of the investigation and given that Mr Hayman was not in a position to comment on the thoroughness or otherwise of the investigation because he was not aware of any of the details. Further, having retired, he had no access to any of the

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relevant papers or decision logs.499 Mr Hayman said that he based his article on his "general broad recollection, of how events were".500

¶8.109 I am satisfied that Mr Hayman was not deliberately intending to mislead and neither do

I consider it to be proved that he was motivated by a desire to protect NI from further investigation; unwisely, however, he made defensive assertions which were based not on fact but on his assumption that the investigation would have been comprehensive. He undoubtedly believed the detectives working on Operation Caryatid to be tenacious investigators and that they would have sought to prosecute all offenders against whom there was a sufficiently strong case. In reality, without the relevant information, he set about defending the investigation (and, by extension, both himself and his former colleagues). Furthermore, it was equally imprudent of Mr Hayman to write this article in The Times because, by doing so, he gave the impression, no doubt inadvertently but undeniably, that he was being deployed by NI to give support to the police line which, itself, was in support of NI.

¶8.110 As referred to above, on 12 July 2009, DCS Williams and DCS Surtees prepared a written

briefing note for Mr Yates.501 DCS Williams believed that the briefing note may well have included more detail than he gave orally on 9 July: "particularly when it goes into quoting figures, because then we had retrieved the investigative documents from storage and so I would have been able to do that. On the day, I would – of 9 July, I would have been doing it to E the best of my ability of my memory."502 DCS Williams and DCS Surtees stated the following in that note:

"14 … It is clear from these documents that Mulcaire had been engaged in a sustained (years) period of research work in various levels of completion. In many there is simply the name of a celebrity or well known figure in others there is more detail with names, addresses, dates of birth, telephone numbers, DDN's passwords, PIN numbers and scribblings of private information. On some there are names which probably relate to journalists and cash sums. (As yet unconfirmed). "15. It should be noted that no evidence existed to suggest that those possible journalists detailed on these sheets had knowledge of the illegal methods undertaken to supply these stories, however, it should be pointed out that in one of the recordings recovered from Mulcaire it is clear Mulcaire is giving instruction to an unknown person (possibly a journalist) on the telephone, on how to access messages of Gordon Taylor. (As yet unconfirmed who this person is). "16. Also recovered were a number of contracts between Mulcaire and the News of the World, some show agreements to pay Mulcaire a wage of £104,988 per year … In addition to these contracts other financial documents recovered highlighted individual payments to Mulcaire from the NOTW for instance in the case of Gordon Taylor an agreement to pay £7000 once a story had been printed. (All used by counsel in the criminal prosecution)."

¶8.111 It was also claimed in the briefing note that:503

¶"All the available evidence in terms of scale and potential role of News of the World

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was part of the prosecution case … Nothing has been hidden from the public as to what was found it has just not had the opportunity to be fully heard."

¶8.112 The content of this briefing note leads me to the conclusion that even when DCS Williams had

reviewed the investigation papers, his aim when briefing Mr Yates was only to reinforce the position that there was "no evidence"; that is not surprising given the view that he continues to maintain and, additionally, the fact that three days earlier Mr Yates had announced that there was nothing new to consider. The conclusion reached on the value of the "corner names", at paragraph 14 of the note, appears to have been infected with the inaccurate analysis that there was "no evidence" that those identifiable by the corner names knew that Mr Mulcaire was obtaining the information unlawfully (when in fact there was circumstantial or inferential evidence of the same).504 It is clear that the note conveyed that the officers suspected that the criminality went far beyond just Mr Goodman, but it did not convey any belief that there was material that could be developed in a wider investigation. In the light of what he has recently argued, it is surprising that DCS Surtees did not ensure that this was communicated in the written document.

¶8.113 It is evident that this briefing note introduced Mr Yates to evidence implicating other journalists, albeit the evidence was not given the epithet: "corner names". It is right that the E evidence was immediately followed by the assertion that "no evidence existed" that those

journalists knew of the illegal methods used by Mr Mulcaire, but it gave Mr Yates the "scintilla of evidence" that he had protested he did not have.505 During his evidence Mr Yates said that he did not know about the "corner names".506 When taken to these paragraphs of the briefing note, he said that they "didn't hit home in that way".507 I find that this reference to evidence implicating other journalists did not "hit home" precisely because of his closed and defensive mind-set, which caused him to overlook the significance of these paragraphs. That said, during his evidence, he did not accept that there was in fact any evidence that those named knew of the particular method of obtaining the information used by Mr Mulcaire:

"… who knows what techniques, lawful or unlawful, private detectives use and how they get the information, you know, I can't be the judge. What we were worried about was is there any evidence around this, and the view I was given was: no, there wasn't."

¶8.114 Mr Yates, like DCS Williams (and in the briefing note of 12 July 2009 at least, DCS Surtees), has

failed to acknowledge the circumstantial or inferential evidential value of the corner names or to consider how the communications between journalists and Mr Mulcaire might have come about or how the information which Mr Mulcaire obtained might have been passed back to the journalist. I do not pass further comment or reach any further conclusions, however, not least because of the current criminal investigations and impending prosecutions of other journalists at NoTW and my anxiety not to prejudice let alone appear to prejudge what might emerge at any trial.

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¶8.115 The following extract from the briefing note illustrates that DCS Williams and DCS Surtees

had reminded themselves accurately that there were many potential victims despite the continued adherence to the narrow interpretation of s1 of RIPA:

"It was clear from the spreadsheet and the lines of data supplied by the telephone companies that many potential 'victims' existed and had been subject to their voicemails being called, but that is not sufficient to prove the criminal offence of interception. The burden is on the prosecution to show they actively led to the defendant gaining access to voice messages prior to the intended recipient gaining access. The data alone does not even show whether or not messages existed only that the voicemail had been accessed."

¶8.116 The following is also recorded in the briefing note:508

"… Advice indicated that S1 RIPA interception or Computer Misuse Act might be the potential offences for what was happening. The latter apparently had a poor track record in terms of conviction, because of the complexity of what had to be proved and the latter had not been used in respect of telephone voicemail …"

¶8.117 This indicates that DCS Williams had refreshed his memory from the papers sufficiently to E

recall that voicemail interception was not just an offence under RIPA but also under the CMA. Further, at paragraph 28 of the briefing note DCS Williams and DCS Surtees recorded that the victim strategy, in broad terms, had been to inform everyone in the bluebook who had had their unique voicemail access number dialled by the suspects. It continued:

"At the time the strategy recognized that there was still extensive research to be done with the phone companies to identify what the full extent of victims might be and therefore as outlined under the section above 'How were victim identified' this could be a vastly bigger group of people and in reality we would probably never know the true scale."

¶8.118 Unfortunately, however, neither of these factors caused DCS Williams to correct his original

briefing to Mr Yates concerning the number of victims of voicemail interception which was to the effect that "police enquiries showed that the tactic of voicemail interception had only been used against a far smaller number of individuals". In the light of the way that DCS Surtees now puts the matter, it is surprising that DCS Surtees did not himself later correct this misunderstanding: by then, of course, the decision had been made and the defensive line published. Whatever the reason, however, I am confident, however, that it had nothing to do with any relationships with NI.

¶8.119 Sir Paul Stephenson explained that during intermittent discussions with Mr Yates, as the

Guardian maintained its coverage, Mr Yates continued to reassure him that there was nothing new in the allegations that would warrant the reopening of the investigation and the investment of significant additional resources.509 To put his involvement in its proper context, Sir Paul said that the matter was not a priority for him as Commissioner. He occasionally had discussions with Mr Yates about it, but he would not have delved further into it because it was getting the right level of senior attention.510

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¶8.120 Mr Yates chaired two Gold Group meetings on 13 July. The first was attended by DCS Williams,

Mr Clements and Mr Hussain from the CPS, and D/Supt Dean Haydon.511 That meeting dealt predominantly with the question of ensuring that the MPS had been sufficiently diligent in informing potential victims but there was also discussion about whether a letter should be written to the Guardian encouraging the newspaper to share any new information. The minutes stated:512

"Following DPA advice, JY decided not to write a letter as the Guardian to date had not produced any fresh information or evidence in their articles. Their articles were based on historical cases. If he did, the Guardian could use spin and claim that he has made a U-turn, had done this under mounting pressure, why was this not done before etc. Press reporting to be monitored in event fresh information comes to light to justify writing a letter. Decision – no letter to be sent to the Guardian at this stage."

¶8.121 According to Mr Clements, Mr Yates told them at that meeting that he was happy to help with

"piecing together the evolution of the prosecution strategy regarding potential victims".513 Mr Clements and Mr Hussain told Mr Yates that a review was underway and that they would reveal their findings on Wednesday in a press release.514

¶E 8.122 The second Gold Group meeting was attended only by MPS personnel, including DCS Williams

and DCS Surtees. A separate investigation name, Operation Quatraine, was allocated in order to provide a reference point for work done on the recent issues and the costs incurred. Mr Yates decided that the Gold Group would provide strategic oversight and that all decisions and records would be recorded in the minutes and that no separate decision log would be maintained.515

¶8.123 On 14 July 2009 the journalist Nick Davies, who had been responsible for the Guardian article,

gave evidence to the CMS Committee. He presented the Committee with copies of a number of documents including the "for Neville" email and the contract with Mr Mulcaire which related to the payment of a bonus for the Gordon Taylor story.

¶8.124 Also on 14 July 2009 David Perry QC and Louis Mably produced the note to which reference

has already been made (see paragraph 3.2 above).516 The key part of the note was the following:517

"We did enquire of the police at the conference whether there was any evidence that the editor of the News of the World was involved in the Goodman-Mulcaire offences. We were told that there was not (and we never saw such evidence). We also enquired whether there was any evidence connecting Mulcaire to other News of the World journalists. Again we were told that there was not (and we never saw any such evidence)."

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¶8.125 This record of the answers given by the police understandably influenced the conclusion

reached by Mr Starmer of how the original prosecution had been handled and the extent to which there was any need for a re-evaluation in 2009.518

¶8.126 Mr Yates also claimed to place heavy reliance on this note from counsel but in contrast to

Mr Starmer, it was not reasonable for Mr Yates to infer from it that counsel had checked all the material gathered during the investigation for further evidence of criminality. First, the conference was prior to the review of unused material and was based purely on what counsel were told by the police; secondly, Mr Yates knew (or certainly ought to have known) that the review carried out by counsel (Mr Mably specifically) had been confined to a review of the unused material which had the particular limited purpose of fulfilling the disclosure obligations explained above.

¶8.127 When challenged about the legitimacy of relying on this review of unused material, given

its purpose and that Mr Mably had not been asked to decide how the investigation should proceed, Mr Yates accepted the limited nature of the exercise but said that:519

"This was quite an important limb, I would say, in terms of saying, well, okay, he was looking at it from the CPI perspective from the indictment, but if counsel is telling me that they never saw any such evidence, then of course I'm going to place some E reliance on that. But it was only one limb of a series of aspects which enabled me to come to that view, if you like." And:520

"Well, if you read out the sentence in the note, I think it's abundantly clear what's there, and on any reading, exculpatory, CPIA or whatever, they are saying they've done the exercise on CPIA and they never saw any such evidence about others' involvement … I can't see any other reading of it that would – you know, it's there."

¶8.128 Whilst it would be fair to find that Mr Yates might have expected counsel reviewing the

unused material to notice a document that stood out as a "smoking gun", he could not rely on it to conclude that there was no evidence of further criminality.

¶8.129 On 15 July 2009, the Chairman of the Home Affairs Committee (adding weight to the

enquiries being conducted by the CMS Committee) wrote to Sir Paul Stephenson in order to put a serious of questions to the MPS.⁵²¹⁵²¹ John Yates, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-JMY3A-172.pdf p78 lines 12-14, ibid p1, lines 3-7, Dick Fedorcio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-13-March-2012.pdf Trimingham v Associated Newspapers Limited [2012] EWHC 1296 (QB) per Tugendhat J He asked to be informed of the extent of previous police enquiries into illegal surveillance by journalists, in particular, whether journalists other than Clive Goodman were investigated and why Mr Yates was convinced that no further investigation was needed. He also asked whether there was any evidence to indicate the existence of arrangements between Mr Mulcaire and other journalists, either at the NoTW or elsewhere, which could have included intercepts and other potentially illegal surveillance.

¶8.130 Also on 15 July 2009 DCS Williams sent an email to the CPS which contained his recollection of the August 2006 conference with counsel.522 Mr Hussain also prepared a submission for

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the DPP which set out in summary form the CPS involvement in the case in 2006.523 Perhaps the most important part of it for present purposes was paragraph 3, which read:

"In addition to Goodman and Mulcaire a third man ... was arrested but was not charged due to there being insufficient evidence to proceed against him. NO other suspects were considered or charged. This has been confirmed to Asker Hussain by DCI Surtees: 'no other named suspects ... were confirmed as suspects of criminal activity through this investigation'. Prosecution counsel has also confirmed that there were no other suspects apart from these three individuals."

¶8.131 The precise content of any conversation between Mr Hussain and DCS Surtees cannot be

ascertained from this note, but I would expect DCS Surtees not to have given the impression that there were no evidential leads relating to named individuals even though there were no "confirmed suspects" as such.

¶8.132 On 16 July 2009, following receipt of this submission from Mr Hussain, the DPP issued a

press statement. It stated that the police had provided the CPS with all relevant information and that the approach to charging Mr Goodman and Mr Mulcaire had been appropriate. It is noteworthy that the press release relates only to those 'identified to the CPS' and reads as

¶E follows:524

"Having examined the material that was supplied to the CPS by the police in this case, I can confirm that no victims or suspects other than those referred to above were identified to the CPS at the time. I am not in a position to say whether the police had any information on any other victims or suspects that was not passed to the CPS." "In light of my findings, it would not be appropriate to re-open the cases against Goodman or Mulcaire, or to revisit the decisions taken in the course of investigating and prosecuting them".

¶8.133 Also on 16 July 2009 DCS Williams wrote a report entitled: "Why didn't we expand the investigation?" in which he stated that:525

"… My practical assessment was that no matter what we found out [once the investigation was overt] any other potential suspects were now firmly aware of what we were doing and would certainly be taking all steps to avoid incriminating themselves. "Against this backdrop I knew how challenging it had been to get the case this far based upon technical proof (this is a huge challenge which perhaps understandably everyone is underestimating) and now that potential other persons who may or may not have been involved were alerted my belief was that we would not be able to secure the level of proof necessary to get across the criminal threshold. "Added to the above I knew that any attempt by us would [be] highly likely to be protracted for the reasons already highlighted and it would risk clouding the issues around a solid, clear and proportionate case. "All of the above was not a decision that I made in isolation. Throughout, this investigation had the highest oversight at all times. The potential breadth/scale of what may or may not be out there was fully discussed together with what resources

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might have been required to even begin exploring that. There was no appetite to expand the investigation and the strategic guidance given to me was to continue with what I had before me as outlined above."

¶8.134 DCS Williams argues that this report demonstrates he communicated to Mr Yates that there

were evidential leads and that the strategic decision had been made not to follow them for resourcing reasons. In the context of the briefings, I do not consider that it would have conveyed any such message to Mr Yates. The report suggests that the decision was made at least predominantly (if not entirely) on the basis of the quality of the evidence and viability of the leads, rather than making clear that resource concerns overrode considerations of the quality of the evidence.

¶8.135 DCS Williams also set out his views526 on "what would be the issues should it be decided to now open an investigation into any aspects of NOTW activities from that period":

"1. Maximum success already achieved – My rationale for what we did then I believe serves as a strong basis for why it would be highly challenging to find anything more that would lead to a criminal prosecution which would have any greater benefit in terms of what we have already achieved. "2. Data – In terms of practical challenges I doubt whether the necessary data exists E now. Even at the time Orange for example only hold what data they had for a few hundred days. So for example to explore in terms of data whether or not Gordon Taylor had been the victim of intercept in June 2005 or before as indicated by one seized document was not possible then let alone now. "3. Victim Cooperation – I believe the current climate is making an assumption around who would want to come forward as a victim/witness. Given that the people who are targeted are in the public eye for one reason or another I suspect many of them would not want to [be] identified publicly as a 'victim' due to what it might suggest about their private life. "4. Public Duty – Taking into consideration all that I have written above I do not feel we would be serving the criminal justice system for the public good, but all we would achieve is feeding the civil litigation industry for individual gain at much cost to the general public."

¶8.136 In my judgment, this is another example of the way in which DCS Williams represented matters

defensively and in such a way as to reinforce the decision that reopening the investigation was unwarranted.

¶8.137 Later that evening, on 16 July 2009, the press office of the DPP received an enquiry from Nick

Davies as to whether the DPP had called for the NoTW contract and the "for Neville" email.527 This enquiry promoted a flurry of late night activity within the CPS.

¶8.138 On 17 July 2009 Mr Yates chaired a further Gold Group meeting during which a question

was raised about the possible involvement of Neville Thurlbeck (following a question to Mr Yates from Chris Huhne MP),528 in light of the "for Neville" email. According to the minutes of the meeting, DCS Williams stated that this formed part of his wider prosecution strategy relating to both suspects and victims, which was still robust to that day. The minutes also

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demonstrated that DCS Williams emphasised the lack of co-operation from NoTW during the investigation, including no comment interviews, resistance during the searches and refusal to cooperate with telephone data requests.

¶8.139 After the meeting, but also on 17 July 2009, a briefing note was prepared for Mr Yates,

presumably by DCS Williams, which explained the reasons for not having followed up the possible implications of the "for Neville" email.529 He stressed that the mere sight of transcripts of conversations is not itself sufficient evidence to charge with an offence of conspiracy to intercept communications. He explained that:

"It is important to differentiate the investigative strategy and risk reduction strategy taken at the time, to the very different focus today of whether in fact lots of journalists at the NOTW or elsewhere were involved in a criminal conspiracy. … "Police could have arrested Thurlbeck and/or others. The experience police had of the stance taken by News International staff led them to suspect that any other journalists arrested would not readily assist police by answering any questions this would inevitably leave investigators with insufficient evidence to charge others.

¶E Further enquiries were undertaken by investigators to prove the involvement of

other journalists by requesting telephone information and floor plans from News International at the time. These were frustrated from the outset."

¶8.140 For their part, during the course of 17 July 2009, the CPS ascertained that the "for Neville"

material was part of the unused material and nothing more. A copy of the email was faxed by the MPS to the CPS later that day, and drawn for the first time to the attention of Mr Starmer. Mr Clements told Mr Starmer that he had spoken to D/Supt Haydon and that: "the Met do not consider that the email in question has the significance that the Guardian attribute to it."530 Mr Starmer was immediately concerned about the email, because "[w]hatever view others took about this email, I was concerned about it. Taken at face value, it seemed to me to suggest that both the author and recipient were possible suspects".531 In answer to my question, Mr Starmer indicated that his assessment of the email was that it was more in the nature of an evidential flag or pointer than a 'smoking gun', although, even on that basis, he recognised that it did not correspond with the reasonably firm assurance he had been given that there had not been thought to be other suspects.532

¶8.141 At 4pm on 17 July 2009 a meeting took place between Mr Starmer and David Perry QC. The

latter confirmed his recollection of the answers the police gave to his questions regarding other possible defendants. However, Mr Starmer was still concerned about the email and decided to write to Mr Yates inviting him to consider whether further investigation was now required. A draft press statement had been prepared to that effect, but, following discussions with Mr Yates later that evening Mr Starmer was persuaded not to issue the statement but to meet Mr Yates the following Monday morning (20 July 2009) to discuss the email in greater detail. During the course of the Friday evening discussions which followed the meeting with Mr Perry, Mr Starmer sensed a degree of "push-back' from Mr Yates against his suggestion that there should be a reinvestigation or further investigation of the "for Neville" email. Mr

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Starmer did not suggest that there was anything sinister or untoward about this, given the time of day.533 Following those discussions, Mr Starmer issued a press statement which merely said: "the DPP is now considering whether any further action is necessary."

¶8.142 On Monday 20 July, the meeting with Mr Yates and others (including DCS Williams) took place

as arranged; the notes made on behalf of the MPS have been made available to the Inquiry.534 Mr Starmer explained to the police that Mr Perry had told him that he could not remember discussing the "for Neville" email at the time of the prosecution. DCS Williams reiterated the point that there had been discussion about other possible defendants. The following appeared in the notes:

"KS. David and Louis asked if evidence editor and other journalists. Told not. Saw no evidence to support"

¶8.143 Mr Starmer confirmed that this assertion was never contradicted by anyone present at the meeting.535

¶8.144 According to Mr Starmer, the key contribution made by Mr Yates to the meeting was that this

was not new material; it had been seen by counsel and that the police investigation focused on set parameters, which were an operational matter for the police; furthermore, in any E event, "the email will go nowhere". Unsurprisingly, Mr Starmer was not entirely comfortable with this response, given that Mr Perry did not have a recollection of seeing the email, and to the extent that it might have been seen by junior counsel this was in a specific and limited context; that the 'set parameters' rather begged the question; and that his assessment of the evidential strength of the email was not the same as the assessment made by Mr Yates. The matter was left on the footing that Mr Starmer would seek written advice from Mr Perry on the status of the email, and that DCS Williams would do a background note to avail him.

¶8.145 Shortly after 6pm that evening, DCS Williams sent the CPS a briefing note, as they had requested,

which he entitled "Challenges faced in the investigation and subsequent prosecution" for the CPS.536 Under the rubric "Challenges", DCS Williams set out his understanding of the law which continued to be based on the narrow view of RIPA 2000. He also made a number of observations in the note about the "for Neville" email, all of which tended to suggest that neither in 2006 nor in 2009 could it amount to evidence that the criminality at the NoTW went beyond Mr Goodman. For instance, he set out his analysis that there was nothing to indicate that "Neville" had actually seen the document and that even if he had, reading the email would not have been an offence and so there was no evidence to link him to a conspiracy to intercept communications. It is worthy of additional note that this specific analysis of the email was also to form the basis of the evidence Mr Yates gave to the CMS Committee.

¶8.146 Mr Starmer was anxious to resolve the issue as quickly as possible and so he asked Mr Perry

to provide an 'overnight' advice, that is to say before the following morning. In effect, the DPP wanted Mr Perry to answer the following four very specific questions:537

¶(a) based on his knowledge of the case in 2006 and in particular the technical and practical

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issues associated with proving offences of interception, what advice would he have given to the CPS/police at the time in respect of the "for Neville" email, had it been brought specifically to his attention? (b) based on his knowledge at that time (July 2009), would his advice be any different? (c) based on his knowledge in 2006 whether he was of the view that the police had sufficient to arrest and/or interview "Ross" and/or "Neville". (d) based on his knowledge at that time (July 2009) whether he was of the view that the police had sufficient to arrest and/or interview "Ross" and/or "Neville".

¶8.147 At the time of the urgent request for advice, Mr Perry did not have access to his original papers

and was also working under the pressure of a court appearance. Rather than seek further time from Mr Starmer, Mr Perry decided to rely on what he could recall of the prosecution and on the briefing note provided by DCS Williams. He set out his advice under the heading "Draft Advice" although it was not expressed to be contingent on any further information or input from either the MPS or the CPS and was never replaced by a further document. The advice arrived at the CPS at 09:40 hrs the following morning, namely 21 July 2009.538 Mr Perry indicated that he only had a dim recollection of the decisions taken in relation to the investigation and prosecution strategy, but that he had found the note prepared by DCS

¶E Williams to be extremely helpful and to accord with such recollection as he did have. Mr

¶Perry expounded the narrow view of the law in lapidary and unqualified terms:

"… to prove the criminal offence of unlawful interception contrary to section 1(1) of the Regulation of Investigatory Powers Act 2000, it is necessary to prove that the message was intercepted before it was accessed by the intended recipient."

¶8.148 Mr Perry also appeared to suggest that he gave the same advice to the police and the CPS

in 2006.539 He stated in his advice dated 20 July 2009 that the "for Neville" email did not cause him to acquire a different view of the merits of pursuing other possible defendants. He adopted eight of the nine points made by DCS Williams in relation to the evidential value of the email.

¶8.149 Mr Perry has accepted that his statement about the law was too emphatic and that he had

been over-reliant on the briefing note.540 Given that he did not have his papers and was advising overnight, I am fully prepared to accept the explanation why he expressed this view, despite having given different advice in the conference with the CPS and the police in August 2006.541

¶8.150 With the benefit of hindsight, Mr Starmer has since said that it would have been better if,

before Mr Perry committed himself, he had been given more time along with the opportunity to check his papers. That is undoubtedly right but, despite his understandable anxiety to meet the very tight deadline set by the DPP, Mr Perry should not have given unequivocal and unqualified advice, which in any event did not reflect the considered advice he gave in 2006, without, first, re-acquainting himself sufficiently with the law and relevant factual

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background; secondly, reviewing his papers relating to the prosecution; and, thirdly, if it was necessary, reconsidering the likely interpretation of s1 of RIPA. He should not have permitted himself to rely almost entirely on a briefing note provided by DCS Williams (whom he did not blame) or to assume that it was accurate or reflected the advice he gave in 2006.

¶8.151 Although it might have caused his client some frustration, I have no doubt that Mr Perry

should have told Mr Starmer that he needed more time before he could give accurate advice; alternatively, he could have expressed a view only on a provisional basis following it up shortly thereafter, when the papers were to hand and the necessary time available. Entirely accurately, Mr Perry summarised the position by saying that: "the moral of the story is: don't do advices overnight if you don't have the papers".542

¶8.152 The DPP wrote to the chairman of the CMS Committee on 30 July 2009.543 Basing himself heavily

on the advice given by Mr Perry, Mr Starmer confirmed that it would not be appropriate for him to reopen the cases against Mr Goodman and Mr Mulcaire, nor to revisit the decisions taken in the course of investigating and prosecuting them.

¶8.153 On 25 August 2009 DCS Williams provided what he called a "very rough draft" opening

statement for the CMS Committee hearing. It included the following paragraph which, in the circumstances, did not fully reflect the complete picture of what had happened in 2006:544 E "Suspects – In 2006 Police, CPS and Senior Counsel considered whether or not there was evidence against anyone else and in the light of recent concern have revisited that decision. Supported by Senior Counsel the collective belief is that when set against both the investigation and prosecution strategy there was and remains insufficient grounds to arrest and /or interview anyone else."

¶8.154 Presumably for the purposes of the CMS Committee hearing,545 DCS Williams prepared a

further briefing note, dated 2 September 2009, entitled "Efforts to pursue investigation with NOTW" which including the following information:

"Post arrest at a case conference between police, CPS and Council [sic] the extent of what we could legally ask for access to through a Production order was discussed and again based on the evidence we had that was deemed highly likely to be limited to the activities of Goodman and potentially Mulcaire – in affect [sic] we would not be allowed to do anything that might be looked upon as a 'fishing exercise'. "NOTW solicitors had already made it known of their desire to cooperate with the investigation and the best way forward was decided to be through cooperation, but to explore/prepare a production order in tandem to be used as legally possible."

¶8.155 DCS Williams then explained how Burton Copeland had responded to the various request for information in the following terms:

"Throughout it would be fair to say that NOTW took a robust, but legal approach to our requests and provided the material in relation to Goodman and Mulcaire only, e.g. the payments to 'Alexander' – total £12,300. What was received did indeed become

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part of the prosecution, but we did not have the legal basis with which to push our investigation further."

¶8.156 On 3 November 2009 the DPP wrote again to the Chairman of the CMS Committee. He set

out in that letter that the advice given by Mr Perry had been that the narrow interpretation of s1 RIPA was correct and that there was nothing to be gained from seeking to contend for a wider interpretation.546 On the same day Mr Yates also wrote to the Chairman of the CMS Committee. He confirmed that the police had in their possession hundreds of "unstructured handwritten sheets" showing research into many people in the public eye. He said: "It is not necessarily correct to assume that their possession of all this material was for the purposes of interception alone and it is not known what their intentions was [sic] or how they intended to use it."547

¶8.157 Before leaving this section, it is important to deal with the allegations that have been made

about the integrity of Mr Yates. I recognise that I have strongly criticised his decisions not just with the benefit of hindsight (which is no criticism at all) but having regard to what he knew or could have discovered. As to the question of ulterior motive, however, it is important to analyse the evidence. On this question, Mr Yates said:

¶E "… I absolutely know what I did on July 9th, I know what I was provided with, I know

the judgment I made. You know, time has shown that to be – and what's happened – not the greatest call, but at that time it was the right call, and it wasn't influenced in any way, shape or form by other matters."

¶8.158 Those who worked closely with Mr Yates were and are convinced of his integrity. DCS Williams

¶(whom I have also criticised) said:548

"… In my workings with [Mr Yates], I've not worked with him directly before, but I saw nothing or heard nothing that me think that we – that there was anything wrong going on here, that we were looking to hide anything. He was looking at an investigation that was four years old. I briefed him and over the period I believe he was genuinely seeking to understand what had happened and make proportionate decisions. I just want to assure you that I've seen nothing that makes me think that there is anything other than a genuine desire to do a proper investigation and to keep the public informed about what's going on."

¶8.159 As for more senior officers, Lord Blair offered the following assessment:

"Do I believe that John Yates took that decision in order to placate News International? No, I don't. I just don't believe that he did that. But his difficulty, without making it more difficult for him, is the number of contacts, and that, I think, is a problem."549

¶8.160 Sir Paul Stephenson was convinced that Mr Yates acted in good faith.550 He added that: "I think we ended up defending instead of challenging. Do I believe that there was a deliberate

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attempt to back off because it was News International? No, I do not, sir."551 He made clear that he did not believe that fear of taking on a powerful enterprise "comes into it".552

¶8.161 In reality, there is no evidence from which it would be right to infer that Mr Yates was swayed

in his decision making by his friendship with Mr Wallis or his relationships with NI more generally. That he did not take the Guardian article (or the follow up) seriously enough is beyond doubt but I do not believe that he was acting out of fear of NI, or in a desire to protect Neil Wallis or NI or, indeed, to garner favours from the organisation.

¶8.162 I have considered also the subtler point whether because he knew the personalities of the

leaders at the NoTW and had amicable relations with them, he was less prepared to think ill of what they had been doing. I agree with Mr Garnham QC that I do not have the evidence to make such a finding. I do not consider there is any basis for concluding that Mr Yates would permit or did permit his own personal knowledge of individuals to influence his assessment of whether they may be involved in obtaining information for stories by criminal means. Whatever conclusions I reach about the way in which Mr Yates went about discharging his responsibilities in 2009-2010, I do not challenge his integrity.

The second attempt to ensure that all potential victims had been E informed

¶8.163 Having undertaken on 9 July 2009 to ensure that all suspected victims had been informed,

on 10 July 2009, Mr Yates issued a press statement asserting that: "the process of contacting people is currently underway and we expect this to take some time to complete".

¶8.164 In the briefing note dated 12 July 2009, DCS Williams and DCS Surtees told Mr Yates that

although it was not known in detail what actions each mobile phone company took, the steps they did take included "contacting customers who they thought might have been a victim".553 They gave Mr Yates this assurance despite the fact that neither had ensured either that the phone companies understood that this was their responsibility or that the phone companies had, in fact, informed their customers. It is plain that Mr Yates was significantly misinformed. No doubt reassured by this briefing, at the first Gold Group meeting on 13 July 2009, Mr Yates gave DCS Williams and DCS Surtees the task of reviewing the remainder of the list to establish if there were any other potential victims that should be informed.554 He also gave DCS Surtees the responsibility of confirming, from the files, who the police had informed and when. It is fair to note that Mr Yates was, indeed, seeking to honour his public undertaking to ensure that all potential victims had been informed.

¶8.165 DCS Surtees has submitted that this tasking was predicated on the narrow interpretation of

'victim', namely that a person was only a victim if there was proof that a voicemail message sent or received by him/her was intercepted before it was heard by the intended recipient. It is very surprising that DCS Surtees has made this submission given that it is wholly at odds with the wording of the original victim notification strategy and the summary of the victim notification strategy that he and DCS Williams gave in the briefing note of 12 July 2009. It is also at odds with the undertaking Mr Yates made on 9 July 2009 to inform all victims, including those where there was "any suspicion" that they might have been victims and with the minutes of the second meeting on 13 July 2009, the relevant extract of which is set out in

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the paragraph below. If this was the approach, it is difficult to explain how it developed. DCS Surtees does also make the point that the meetings record only a small part of the discussions that took place.

¶8.166 In the minutes of the second meeting on 13 July 2009, it was recorded that, over the weekend,

the police had informed Andy Coulson that he was a potential victim and that attempts had been made to contact seven others, albeit only one of those seven attempts was successful.555 The following was also noted:

"Over weekend. PW reviewed all files again and decided original victim strategy still stood re informing people (i.e. nothing had changed, apart from Coulson position) and after speaking with JY, it was decided no further contact was attempted with any other people. Weekend focus was then diverted to preparing briefing note and chronology of events. "PW stated after reviewing list there were approx.⁶⁰⁶⁰ http://www.guardian.co.uk/media/greenslade/2011/jan/15/newsinternational-rupert-murdoch p8, para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Jim-Gray.pdf Bingham, A, Op cit, pp84-85 p23, lines 7-13, Lord Black, ibid An individual whose identity has been anonymised throughout the Inquiry: http://www.levesoninquiry.org.uk/wp- content/uploads/2011/11/231111-S19-restriction-order-HJK.pdf pp2-3, lines 23-6, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-23-July-20121.pdf ibid p3, ibid p6, lines 15-21, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-12-December-20111.pdf pp67-68, lines 8-22, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-9-February-2012.pdf pp90-91, lines 19-10, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-21-November-2011.pdf Part F, Chapter 5 p54, lines 20-24, CC Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-20-March-2012.pdf; p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Chief-Constable-Chris-Sims.pdf p54, lines 7-18, ibid p119, lines 3-4, Richard Thomas, ibid http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-In-Relation-to-Operation-Motorman- Evidence-11-June-20123.pdf Part E, Chapter 5 p70, lines 9-21, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-29-November-2011.pdf p10, para 47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Adam- Boulton.pdf p24, para 13.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-James- Rupert-Jacob-Murdoch.pdf p11, para 2(h), http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Lord-Brooke. pdf p73-74, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf See also the background note: p91, ibid pp72-73, lines 19-8, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-30-May-2012.pdf pp4-5, paras 12 - 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Ian- J Hislop.pdf p27, para 46, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf p94, lines 16-21, Lord Black, ibid p21, para 72, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Regulation- Round-Table.pdf p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Exhibit-to-Submission-by-Professor-John- Horgan-Irish-Press-Ombudsman.pdf Part H, Chapter 5, para 2.71 1811 L Re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC 660 at 704-705Show full note people with activity on their phones. JY asked rationale for not informing them now. PW stated they had been in contact with phone companies and they were compiling in writing what they did at the time. Response should [be] received in next 24 hours and therefore decision

¶E pended until we see phone companies' response in event there could be duplication

of work. Press line should read presently – not prepared to discuss (this is personal data)."

¶8.167 It is not clear how DCS Williams reached the conclusion that "the original victim notification

strategy still stood" given the reality that it had substantially failed. The evidence indicates that this correspondence with the phone companies was the first attempt by the police to check that the phone companies had been notifying potential victims in line with the victim notification strategy.

¶8.168 On 14 July 2009 DI Maberly received a response from O2 to this correspondence from the police asking them about what steps they took following the investigation.556 O2 said:

"The matter was fully investigated, and information came to light indicating a small number of additional O2 customers who may have been targeted in the same way. "All the O2 customers affected were contacted by the O2 Fraud & Security Team in May 2006. The customers were advised that there may have been an attempt by a third party to access their voicemail messages. They were told we were making changes to the voicemail systems to stop this happening, and advised that O2 were working with the police to assist in providing evidence to identify and prosecute those responsible. Some customers requested their details be passed on to the police, and this was done."

¶8.169 Vodafone and Orange also replied within the month. They set out what steps they had

taken but neither mentioned having taken any steps to identify or inform potential victims of voicemail interception.557 Surprisingly, despite the imperative to identify individuals who might not have been informed and the clear instructions from Mr Yates, it does not appear that the police made any attempt to follow this up with Vodafone or Orange and query whether they had notified any potential victims. Neither have I seen evidence that Mr Yates

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subsequently asked DCS Williams or DCS Surtees what had been ascertained from the phone companies.

¶8.170 On 22 July 2009, as part of Operation Quatraine, Mr Yates directed that all the material seized

from Mr Goodman and Mr Mulcaire be scanned onto "ALTIA". ALTIA was a relatively new IT system, which had not been available when the investigation began, which enabled the mass scanning of hard copy exhibits to make them searchable on the HOLMES database. This was intended to assist the MPS in responding to the growing number of requests for information558 from individuals who were concerned that their voicemail messages may have been intercepted. An email drafted on behalf of Mr Yates indicated that the exercise was to be a priority. The email read:559

"It is of critical importance to the MPS and the command that this is progressed as a priority and this requires attention today please to coordinate."

¶8.171 Mr Yates explained that around ten detectives spent over four months undertaking this task

at a cost of over £200,000. It is noteworthy that those working on the exercise appear to have been directed that if, when examining the exhibits, they identified potential further leads for investigation, they should be referred to the SIO for consideration.560 However, no such leads, if identified at all, were brought to the attention of senior officers, and the task of scanning E documents was not properly completed. Mr Yates said:561

"I mean … in fairness to me – on 23 July or whatever it was … I was so concerned about our inability to analyse the material in any shape or form that I asked for it to be put on the HOLMES system. You have that email in your pack, where I've said as a matter of priority I took people off counter terrorism operations to put all the material on the HOLMES system. "Now, if during that exercise run by detectives who, you know, would have a detective outlook, I would have expected, if concerns began to be raised about what's actually in that material, stuff that's come out, that I would have been told, but that didn't happen. So I was sufficiently exercised, as critical incident in the Met parlance, to put the stuff on a computer, to invest I think it was ten detectives for three or four months working long days to put all this material on a system so I could search it, so I could actually with confidence say – when people wrote in, I could say you're either on the system or not on the system. Now unfortunately that exercise wasn't done as thoroughly as it should have been."

¶8.172 On 24 November 2009, having been contacted by Nick Davies for information about whether all potential victims had been informed, Orange wrote to DI Maberly in the following terms:

"We've drafted a press statement – the part relevant to the issue in question (i.e. if we were 'asked' to investigate and contact customers) is: We were not asked nor felt it right to further investigate these customers as this was part of the Police investigation. We were also advised not to contact these customers as it could jeopardise the investigation and prejudice any subsequent trial.

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¶Do you think this is fair comment? ..."

¶DI Maberly replied the following day and said:

"I don't think the comments are totally fair. Let me speak to our legal team / SIO (Senior Investigating Officer), who may have a documented record of the strategy agreed at the time."

¶8.173 Orange replied within a few minutes and said:562

"Unfortunately we have responded but would be happy to issue a clarification if necessary. We're not disputing that the ball was in our court, just that no specific [italics in original] request was made to investigate and contact…"

¶8.174 There does not appear to have been any real reaction to the implications of this email correspondence or beginnings of a recognition that the victim notification strategy had failed.

¶8.175 On 25 January 2010, DI Maberly emailed O2 and Orange, explaining that following a review of

material requested by DCS Williams, the police had identified a "very small" number of people who were a target for interception but who had not been informed of this. Presumably these

¶E were individuals who, pursuant to the victim notification strategy, should have been notified

by the police. DI Maberly also explained that the police were intending to give the relevant numbers to the phone companies in order to ascertain to which network they belonged at the time and might then ask the phone companies to make contact with those customers. O2 replied that day in the following terms:563

"We identified a number of customers we believed may have had their voicemails intercepted and I advised Philip Williams at the time that we intended to proactively contact them and let them know. We could not say for certain that their voicemail had been intercepted only that there was evidence it had been attempted. From my memory this was approximately 40 customers, certainly not more than that number. The only customers from this list we did not contact as part of that process were the members of the royal household that the police were dealing with directly. We had no information that voicemail messages belonging to any additional customers on the O2 network had been intercepted or had interception attempted."

¶8.176 This demonstrates that O2 informed their customers because they made the independent decision to do so and not pursuant to a request from the police.

¶8.177 Orange also replied the same day stating that they told Nick Davies that they had given

the police the phone numbers of 45 Orange customers whose voicemails boxes had been accessed by the suspect numbers provided by the police.564

¶8.178 On 26 January 2010, DI Maberly spoke to a representative from Vodafone. She told DI Maberly that she did not confirm any numbers to Nick Davies.565

¶8.179 On 1 February 2010, the MPS received a request from Nick Davies under Freedom of

Information Act 2000; this included requests for the total number of full names, partial names and initials including possible misspellings and duplications, which were listed on the database and the total number of mobile phone numbers (full and partial).

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¶8.180 On 9 February 2010, Mr Yates wrote again to the Chairman of the CMS Committee and

contended that during his evidence in September 2009 he had answered the questions as fully as possible. He stated in that letter that:566

"… Since that appearance, and in accordance with my initial press statement, I have been attempting to ensure that the police have taken all proper, reasonable and diligent steps to inform all those individuals where there is any evidence that they may have been subject of any form of interception. This has involved considerable and time consuming work, in particular the use of an IT process previously unavailable. Even now we cannot with any certainty answer questions relating to identifying individuals and whether or not they were a victim of interception … "… whenever a name in whatever context was identified it was captured and put onto an MPS system. The name could range from initials, single names right through to multiple variations and spellings of a host of fore and/or surnames. To even attempt to discern from the material to what extent this data refers to distinct individuals or for what purpose would have required extensive work beyond the scope of the criminal investigation and would not have been a proportionate use of police resources. "A similar process would then have had to be undertaken to link phone numbers and or voicemail messages to these individuals. E "What we can say is that where information exists to suggest some form of interception of an individual's phone was or may have been attempted by Goodman and Mulcaire, the MPS has been diligent and taken all proper steps to ensure those individuals have been informed."

¶8.181 The latter paragraph indicates that the police had still failed to ascertain or recognise the

extent of the failure of the victim notification strategy despite having identified, initially at least, the importance of notifying all those whose privacy had potentially been invaded.

¶8.182 DCS Williams prepared a report entitled "Options for Dealing with the potential 'victims'

issue".567 It is undated, but it is apparent from the content that it was drafted after the MPS received the request issued under the Freedom of Information Act but before the response which was dated 29 March 2010.568 DCS Williams made reference to the fact that DI Maberly had examined the 91 individuals whose names, mobile phone numbers and pin codes appeared in the papers seized from Mr Mulcaire and identified 13 people who:

"will not have been contacted by us and potentially the service providers and from the billing data provided as part of the original investigation, there are calls that are greater than 10 seconds (i.e. enough to enter the voicemail and listen to any message left as per the criteria used for the trial) "Albeit not proved at an evidential level that interception has taken place, if the data is correct then there is a case for saying that for these individuals the possession of their name/mobile/pin has probably gone beyond more than merely preparatory and therefore there is suspicion that some form of 'phone tapping' may have taken place. The following are options for informing them. "Option 1 "Police try to contact these people using the mobile numbers listed by Mulcaire and tell them that they fall into this category.

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"If we did this I would suggest we are quite firm on saying that we are not investigating the case, we are simply carrying out John Yates' promise to inform people and if they have any concerns to contact their service provider. "If we cannot contact them, because the phone is now out of use or has moved on to someone else then that would be the end of the process on the basis that we have 'been diligent, reasonable and sensible, and taken all proper steps.' "Issues to consider: – This case is now nearly 4 years old, we are not carrying out an investigation and all the time we are spending public money on something that is not making anyone safer. At best we would be handing someone an opportunity to make personal gain through the civil courts which does not assist the wider public good. It probably would [be] possible to undertake further enquiries beyond ringing the phone numbers to try to contact those individuals. A view might be that some of the people are well known and it would have been 'easy' to make contact. However, it might not be as easy as it seems, because we could be limited in terms of our full range of research methods as this is not an investigation and that could delay notification in some instances. Equally the more lengths we go to [to] contact individuals, potentially

¶E through other people, we risk breaching their anonymity around this case, again for

no great gain. Where is the balance of reasonableness? For some of the 13 we are not sure who they are/their relevance in terms of known individuals. This is something that could be done immediately, before the Nick Davies FOIA letter goes out. "Option 2 We approach the service providers directly and/or through Jack Wraith (who originally coordinated much of the contact/press lines with the service providers) and supply them with details of these last few people and ask them to clarify whether or not they have any concerns and make contact with the customer. "Issues to consider: – This would share the responsibility for determining who is a 'victim' with the service providers as it was the weaknesses in their system that has caused all this work for us and in theory if they had any concerns back in 2006 they should have contacted their customers. This would take an unknown time and it is important to send out the Nick Davies FOIA this week. "Option 3 We could complete Option 1 immediately and then consider pursuing the remainder through option 2. If the combination of both did not make contact then that would be deemed reasonable and diligent." The paper did not reach a conclusion as to which option should be selected.

¶8.183 It is not clear whether any further victims were informed following this paper being written,

but it does indicate a clear lack of enthusiasm for informing any further potential victims, despite the undertaking given by Mr Yates in July the previous year. It appears to have been considered to be a time consuming and expensive exercise for no real gain. There were to be no further charges and one of the purposes of informing potential victims was to enable

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them to take steps, if so advised, to seek whatever redress they saw fit: the enforcement of privacy rights in the civil courts, therefore, did not appear to register with the police as a worthwhile outcome. In the circumstances, the lack of appetite for ensuring that all potential victims were informed was a misjudgement.

¶8.184 It was noted in the minutes of a Gold Group meeting on 10 September 2010 that DCS Williams

was to provide a brief on the victim strategy to date. At a further meeting on 17 September 2010 the approach for dealing with "potential new victims" was discussed. It was recorded that a strategy for new victims was being devised and that the proposed course was to write to each prospective victim and ask them to approach their service provider to see if they held any information to support their suspicion.569 There was also an action point requiring DCS Williams "to provide details to JY of notifications to potential victims".

¶8.185 In October 2010, Nick Davies reported that he had contacted the mobile phone service

providers and ascertained that not all the victims had been contacted. The MPS began asking the service providers, in terms, which victims they had contacted and asking them to notify those not yet contacted. It is remarkable that this had still not been done, particularly given the earlier correspondence from the phone companies which indicated that O2 had notified customers but only at their own instigation and that Orange and Vodafone had not notified any customers. The minutes of a Gold Group meeting held on 21 October 2010570 recorded E that DCS Williams had completed the previous action that he provide details to Mr Yates of notifications to potential victims and that there was an on-going action involving liaison by DCS Williams with the telephone companies to establish which victims they had informed and cross-compare them with the list compiled by the MPS. The action continued: "If victims remain outstanding consideration of joint letter (MPS and telephone companies) to inform them accordingly".

¶8.186 It was following this meeting that DCS Williams wrote to O2, Everything Everywhere (formerly

Orange) and Vodafone asking them whether those who they (the phone companies) had identified as potential victims during the 2005 to 2006 investigation had been contacted.571 He asked them, if they had not informed those potential victims, to make arrangements to bring to their attention the information that suggested they might have been victims. He also asked them to provide those customers with the MPS single point of contact. It is noteworthy that, even in this letter, DCS Williams was not verifying whether the original victim notification strategy had been implemented because that would have required him to ask whether the phone companies had completed the two stages: that is to say, they had both identified all customers whose voicemail boxes had been dialled by the suspect numbers and then notified those customers.

¶8.187 On 2 November 2010, Orange responded stating that no Orange customers had been

contacted and that at no point during the investigation, or subsequently, had the MPS asked Orange or T-Mobile to contact any potential victims.572 The letter also stated:

"Orange assisted the investigation by providing a list of mobile numbers that had been called by a set of telephone numbers supplied to us by the MPS. Orange has no knowledge if those Orange mobiles were being called legitimately or with the intention of attempting to access their voicemail without authorisation. This was part of the police investigation and for the MPS to identify."

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¶8.188 On 12 November 2010, O2 responded by saying:573

"I can confirm that the O2 customers identified in 2006 by us as potential victims of voicemail interception were contacted at the time and given advice …"

¶8.189 Finally, on 22 November 2010, Vodafone dealt with the enquiry in the following terms:574

"I am surprised that you say that you thought at the time of the investigation that "all of the people potentially identified as being 'victims' had been 'contacted' by Service Providers, including Vodafone. Whilst we were able to furnish the police with information and data requested, it is not for Vodafone to determine who is a "potential victim" in a police led investigation … This is something for the police to establish and it is for the police to take such steps to inform potential victims of crime as they deem appropriate, which I accept could have included asking Vodafone to contact a given list of customers … "A search of our files in relation to the matter has not revealed any request from your officers that we do otherwise".

¶8.190 The police thereafter identified that in fact 58 people out of the list of 91 names with PIN E numbers associated had not yet been contacted.

¶8.191 As regards this failure of this second attempt to ensure that all potential victims had been

informed, Mr Yates said that the exercise had been conducted with the very best intentions but that it was "fairly torturous".575 Mr Yates accepted responsibility for its failure and explained it as follows:576

"… the day-to-day management of the exercise to place all documentation on the Holmes computer was not at the level I expected or that was required. This resulted in some material not being placed on the system which resulted in incomplete or incorrect responses to a number of people who were affected. This is a matter of great personal regret."

¶8.192 It should be noted, however, that the process of scanning the documents in order to create a

searchable database was not implemented to assist in positively identifying individuals who had not been informed but who should have been; rather it was to respond to individual requests for information from people who wanted confirmation whether or not they were potential victims. I find that the MPS (and, in particular, Mr Yates, DCS Williams and DCS Surtees) failed to take effective steps, at any time before November 2010, to ensure that those potential victims who had not been informed were informed as soon as practicable. They failed even to realise that the victim notification strategy had failed or the extent of its failure until Orange and Vodafone spelled out in terms that they had not notified their customers, nor been asked to do so. These failings on the part of the police are difficult to explain. The most likely explanation in my judgment is that the officers concerned did not look beyond the assumption that it had worked, at least substantially. Once more, however, there is no evidential basis for inferring that the police approach was influenced in any way by relationships with NI.

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¶8.193 It is worthwhile briefly to revisit the failure to identify that Lord Prescott was a potential

victim. By letter dated 15 December 2009, he was eventually informed by the Directorate of Legal Services at the MPS that he was a "person of interest" to Mr Mulcaire in that there was a piece of paper containing the words "John Prescott" and "Hull", and two self-billing tax invoices dated 7 and 21 May 2006, addressed to News International Supply Company Limited and containing the words "Story – Other Prescott Assist – TXT" and "Story – Other Prescott Assist – TXT: Urgent".577 He was not, however, alerted to the more concerning references to his adviser, her phone numbers and her pass codes, which had been discovered in the short space of time after Mr Mulcaire's arrest but before his interview. Mr Yates attributed the failure to indexing problems on the HOLMES database:578

"I think what happened, and I say – and I've absolutely stated this in my statement and accepted it, that there was an indexing issue around the name John Prescott being linked to his – I think it was his adviser, whose name I would never have known or could never – I don't think anyone could have made the link, to be honest …"

¶8.194 This is not, however, the complete answer. In his evidence, Mr Yates stressed with some force

that he checked on a number of occasions whether there was evidence that Lord Prescott had been a victim and that he always received the same answer, upon which he understandably relied579. He emphasised:580 E "… I cannot tell you the amount of times I checked and sought further and better particulars about the possibility that Mr Prescott's phone had been interfered with. It would be literally scores – over the following months ..." He continued:581

"… Because I was so concerned, the idea of misleading the Deputy Prime Minister is not something I'd relish and I was absolutely desperate to get to the bottom if there was something there."

¶8.195 DCS Williams has said that he briefed Mr Yates to the best of his ability; that he does not

believe that all the material came to light until it had been scanned onto the HOLMES system some months later; and that he ensured that he showed Mr Yates all the material as it became available, including references to Tracey Temple. For the reasons explained above, I make no finding as to precisely what was brought to the attention of Mr Yates but, to say the very least, it is disappointing that what was inferred by the interviewing detectives within hours of the material being seized was not more clearly communicated to Mr Yates as he was being pressed by the Deputy Prime Minister.

¶The PCC response 8.196 Although this will be discussed later in this Report, as part of this narrative, it is worth including the response of the PCC. On 9 July 2009 the following statement was issued:

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"The PCC has previously made clear that it finds the practice of phone message tapping deplorable. Any suggestion that further transgressions have occurred since its report was published in 2007 will be investigated without delay. In the meantime, the PCC is contacting the Guardian newspaper and Information Commissioner for any further specific information in relation to the claims, published today about the older cases, which suggest the Commission has been misled at any stage of its inquiries into these matters."

¶8.197 The PCC was concerned about two issues: whether it had been misled during its 2007

inquiry and whether its recommendations to the industry to help prevent any repetition of the criminal activity had failed. It launched a further investigation, taking evidence from the NoTW, the Guardian and the Information Commissioner's Office.582

¶8.198 On 27 July 2009 the PCC wrote to Mr Myler asking a number of questions, including the following:583

"Does it remain your position that the illegal behaviour of Clive Goodman was a rogue exception and that no other journalists or executives of the newspaper were aware of the practice of phone message tapping by anyone employed by the paper?"

¶E 8.199 In his letter of response dated 5 August 2009 Mr Myler stated that the allegations in the

Guardian were "not just unsubstantiated and irresponsible, they were wholly false."584 In response to the particular question quoted in the paragraph above he said:585

"Our internal enquiries have found no evidence of involvement by News of the World staff other than Clive Goodman in phone message interception beyond the e-mail transcript which emerged in April 2008 during the Gordon Taylor litigation and which has since been revealed in the original Guardian report. That email was dated June 29 2005 and consisted of a transcript of voicemails from the phone of Gordon Taylor and another person which had apparently been recorded by Glenn Mulcaire. The email and transcript were created by a junior reporter (who has since left the newspaper). When questioned after the email was supplied to us by Gordon Taylor's lawyers in April 2008, the junior reporter accepted that he had created the relevant email document but had no recollection of it beyond that. Since by the end of June 2005 he had been a reporter for only a week or so (having been promoted 'off the floor' where he had been a messenger) and since the first months of his reporting career consisted largely of transcribing tapes for other people, his lack of recollection when questioned three years later is perhaps understandable. "Email searches of relevant people … failed to show any trace of the email being sent to or received by any other News of the World staff member. "Those who might have been connected to the relevant story … denied ever having seen or knowing about the relevant email and no evidence has been found which contradicts these assertions".

¶8.200 Mr Myler was asked during his evidence whether his internal enquiries had in fact demonstrated that the allegation made by the Guardian that there had been hacking into

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thousands of mobile phones was unsubstantiated and irresponsible. He was asked to put to one side what the police might or might not have found. Mr Myler responded as follows:586

"I didn't have any direct information that our internal enquiries had gone to that point, and as I said earlier, one of the things that weighed heavily with me when I came in was the fact that the police hadn't interviewed anybody else other than Goodman in their enquiries."

¶8.201 To the suggestion that, when making this assertion to the PCC, he had not relied on any information that he had obtained through internal enquiries Mr Myler said:

"Other than the appeal that Mr Goodman – I had to conduct with the head of human resources and the allegations that he made, and then talking to those individuals who he made allegations against. There was no evidence provided to me to support what the Guardian had said at all."

¶8.202 It was put to Mr Myler that his evidence had been that after June 2008 he no longer believed

the single rogue reporter defence (on the basis that it was untenable after the "for Neville" email was discovered) but that in this letter to the PCC he was effectively stating that there was no evidence which went beyond Mr Goodman and therefore that the single rogue E reporter defence was true. He said:

"Well, the rogue reporter defence failed to hold once the 'for Neville' email was discovered. And I made that clear to the Select Committee I think in July of 2009, I think it was, about its significance… "But – yes, and that clearly, perhaps, was an error, because this letter was dated 5 August and I'd appeared before the Select Committee in the month previously. So I'm sure that the PCC were aware of that, if that – clearly that was following my evidence to the Select Committee, which was very heavily covered."

¶8.203 I am afraid that I find this response was unconvincing. It is not and cannot be acceptable for

Mr Myler to rely on the evidence he gave to the Select Committee to support the proposition that the PCC would not have been misled by an entirely contradictory assertion that was contained in his response to them. On any showing, what he said to the PCC was neither full nor frank.

¶8.204 In addition, Mr Myler told the PCC that the process of internal investigation had been rigorous

and that News Group had instructed Burton Copeland, an independent firm of solicitors, to deal with further police inquiries after the arrests of Mr Mulcaire and Mr Goodman. He claimed that Burton Copeland were given:⁵⁸⁷⁵⁸⁷ para 9.2, PCC 2009 hacking report, http://www.pcc.org.uk/news/index.html?article=NjAyOA http://www.dailymail.co.uk/news/article-1038478/QUENTIN-LETTS-As-cold-frozen-haddock-Mr-Justice-Eady-hands- views-shorn-moral-balance-.html p76, lines 17-22, Lord Stevens, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-6-March-20122.pdf

"every financial document which could possibly be relevant to the paper's dealings with Mulcaire, and they confirmed that 'they could find no evidence from these documents or their other enquiries which suggested complicity by the News of the World or other members of its staff beyond Clive Goodman in criminal activities'."

¶8.205 This is the most that the Inquiry has been told about the work carried out by Burton Copeland

given that NI has not waived legal professional privilege. As referred to588 there is no available information about what documents were given to Burton Copeland (beyond certain limited

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financial documentation); what sources of information they were able to access; the precise terms of their instruction; what investigations they made; or what, if any, caveats surrounded their conclusions. As a result, the reliance by Mr Myler on their work is hardly persuasive.

¶8.206 Among its conclusions, the PCC found as follows:589

"…While people may speculate about the email referencing 'Neville', the Taylor settlement, and the termination payments to Mulcaire and Goodman, the PCC can only deal with the facts that are available rather than make assumptions. The PCC has seen no new evidence to suggest that the practice of phone message tapping was undertaken by others beyond Goodman and Mulcaire, or evidence that News of the World executives knew about Goodman and Mulcaire's activities. It follows that there is nothing to suggest that the PCC was materially misled during its 2007 inquiry."

¶The CMS Committee reaction

¶8.207 The CMS Committee considered that the Guardian article cast doubt on the evidence they had

been given by NI executives in 2007 and so reopened the hearings in the inquiry (launched in November 2008) into press standards, privacy and libel; the purpose was to examine whether

¶E there was any evidence of a widespread conspiracy at the NoTW. The Committee heard

evidence from representatives of the Guardian, the PCC, the Information Commissioner and the MPS as well as from then current and former NI executives. It also received written evidence from the DPP and Mark Lewis, the solicitor who acted for Gordon Taylor. The NI witnesses comprised Tom Crone, Colin Myler, Andy Coulson, Stuart Kuttner and Les Hinton. The Committee also invited Glenn Mulcaire, Clive Goodman, Neville Thurlbeck and Rebecca Brooks to give evidence but all declined (save for Mr Thurlbeck who was prepared to give evidence but only in private). The Committee decided not to use its powers of compulsion for reasons of "time and practicality".590

¶8.208 In giving evidence to the Committee, NI witnesses continued to assert that Mr Goodman had acted alone. Mr Hinton told the Committee:591

"There was never any evidence delivered to me that suggested that the conduct of Clive Goodman spread beyond him."

¶8.209 In response to questions suggesting that termination payments to Mr Mulcaire and Mr

Goodman could be interpreted as an attempt to prevent them speaking out about practices at the newspaper, Mr Hinton said he had authorised the payments on the advice of specialist employment lawyers.

¶8.210 Mr Coulson told the Committee that during his time as editor he "never condoned the use of

phone hacking" and that he did not have "any recollection of incidences where phone hacking took place".592 He said:⁵⁹³⁵⁹³ Q1554, ibid http://www.telegraph.co.uk/news/uknews/1561287/In-full-Jeremy-Paxmans-MacTaggart-Lecture.html; pp94-95, lines 22-1, ibid

"What we had with the Clive Goodman case was a reporter who deceived the managing editor's office and, in turn, deceived me. I have thought long and hard about this (I did when I left): what could I have done to have stopped this from happening? But if

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a rogue reporter decides to behave in that fashion I am not sure that there is an awful lot more I could have done."

When asked whether he commissioned an enquiry when he found out about the arrests, Mr Coulson said:594

"Yes. Obviously we wanted to know internally very quickly what the hell had gone on. Then I brought in Burton Copeland, an independent firm of solicitors to carry out an investigation. We opened up the files as much as we could. There was nothing that they asked for that they were not given."

¶8.211 Mr Coulson did concede that Burton Copeland were tasked "with the primary purpose, I have to say, of trying to find out what happened in relation to Clive".595

¶8.212 On the remit of the internal investigations Mr Myler said:596

"My recollection was that a very thorough investigation took place where there was a review of everything from how cash payments were processed …" When asked about the width of the internal enquiry Mr Crone gave the following account:597 E "… By the time I got back, which must have been August 15, Burton Copeland were in the office virtually every day or in contact with the office every day. My understanding of their remit was that they were brought in to go over everything and find out what had gone on, to liaise with the police … What I think was being enquired into was what had gone on leading to the arrests; what, in the relationship with Mulcaire, did we have to worry about. Burton Copeland came in; they were given absolutely free- range to ask whatever they wanted to ask. They did risk accounts and they have got four lever-arch files of payment records, everything to do with Mulcaire, and there is no evidence of anything going beyond in terms of knowledge into other activities."

¶8.213 Again, these assertions cannot be tested because legal professional privilege has not been

waived in relation to the instructions given to Burton Copeland, the material provided, or, indeed, any aspect of the work done. I do no more than record what Mr Crone said.

¶8.214 The Committee concluded, in their report published on 24 February 2010, that:598

"Evidence we have seen makes it inconceivable that no-one else at the News of the World, bar Clive Goodman, knew about the phone-hacking … We cannot believe that the newspaper's newsroom was so out of control for this to be the case."

¶8.215 The Committee also noted that the newspaper's enquiries had been far from "full" or

"vigorous", as it – and the PCC – had been assured. It was struck by the "collective amnesia afflicting witnesses from the News of the World".599 It concluded that:600

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"a culture undoubtedly did exist it the newsroom of the News of the World and other newspapers at the time which at best turned a blind eye to illegal activities such as phone-hacking and blagging and at worst actively condoned it …"

¶8.216 The determination of NI to maintain a line that the editor and the legal director believed was

not true in the face of two investigations by the CMS Committee and two investigations by the PCC is extraordinary and, at the very least, a demonstration of loyalty to the NoTW and its reputation which says a great deal about the culture of the paper (to say nothing of its practices and its approach to ethical propriety). In fact, the NoTW maintained the "one rogue reporter" defence until the Spring of 2011 when three NoTW journalists were arrested as part of Operation Weeting.

¶8.217 The Committee also considered the actions of the MPS. On 2 September 2009, Mr Yates

and DCS Williams gave evidence to the CMS Committee. Mr Yates told the Committee that the approach during the investigation had been that an offence under s1 RIPA 2000 was committed only where the messages intercepted had not previously been listened to by the intended recipient. He said:601 "Our job, as ever, is to follow the evidence and to make considered decisions based

¶E 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."

¶8.218 Mr Yates described his July 2009 review in the following terms:602

"… 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, particular 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."

¶8.219 He said of the Guardian article that:

"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 own request of the Guardian and others to submit to us any additional evidence, nothing has been forthcoming since."

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¶8.220 A key conclusion of the Committee was that the police had been wrong not to investigate

further the contract or the "for Neville" email and that the reasons given on behalf of the MPS were not adequate:603

"In 2006 the Metropolitan Police made a considered choice, based on available resources, not to investigate either the holding contract between Greg Miskiw and Glenn Mulcaire, or the 'for Neville' email. We have been told that choice was endorsed by the CPS. Nevertheless it is our view that the decision was a wrong one. The email was a strong indication both of additional lawbreaking and of the possible involvement of others. These matters merited thorough police investigation, and the first steps to be taken seem to us to have been obvious. The Metropolitan Police's reasons for not doing so seem to us to be inadequate."

¶8.221 As regard the PCC, the Committee found as follows:604

"We accept that in 2007 the PCC acted in good faith to follow up the implications of the convictions of Clive Goodman and Glenn Mulcaire. The Guardian's fresh revelations in July 2009, however, provided good reason for the PCC to be more assertive in its enquiries, rather than accepting submissions from the News of the World once again at face value. This Committee has not done so and we find the conclusions in the PCC's E November report simplistic and surprising. It has certainly not fully, or forensically, considered all the evidence to this inquiry."