An Inquiry into the Culture, Practices and Ethics of the Press
Operation Glade
Operation Glade
¶2.1 Operation Glade is an example of a police investigation which, on the face of it, may be thought to demonstrate partiality or favour to journalists which, it is argued, has been rendered
254¶PART E | Crossing Legal Boundaries: The Criminal and Civil Law
more credible in the light of the evidence that has emerged about the relationship between the press and the MPS generally or with certain senior officers in particular. Although self contained, therefore, it is important to deal with the possible perception.
¶2.2 Operation Motorman8 was commenced because an audit by Devon and Cornwall Police had
identified that Paul Marshall, a civilian member of the police staff at Tooting police station, had been accessing the PNC and obtaining information for Steve Whittamore, a private investigator. A search warrant (executed with the Information Commissioner's investigators present) at the latter's premises demonstrated that he was involved in obtaining details of an individual's criminal history by way of a check through the Criminal Records Office (CRO) or details of his or her address by way of a check on the registered keeper of a vehicle. A large number of such checks were on behalf of the national press, where the information subsequently appeared. As we have seen above, Devon and Cornwall Police had also searched the premises of the data gathering company, Data Research Ltd; this was the corporate alter ego of Mr John Boyall. Evidence was obtained that indicated he was involved in the same types of activity as Mr Whittamore.
¶2.3 The evidence relating to Data Research Ltd was referred to the MPS, which first carried out a scoping exercise in order to decide whether the matter should formally be investigated. The E investigation (Operation Glade), began in August 2003 with Detective Chief Inspector Mick
Allen appointed as the Senior Investigating Officer and DCI Brendan Gilmour (then Detective Inspector Gilmour) as the Investigating Officer.
¶2.4 During the course of his evidence DCI Gilmour recognised that, when scoping the investigation,
he and his colleagues were alive to the sensitivity of investigating journalists but said that he could not recall specific discussions about the issue. He expressly disavowed that the investigators were in fear of the press:9 http://www.levesoninquiry.org.uk/people/assessors/sir-paul-scott-lee/ s1(1) of the Inquiries Act 2005 Observer and Guardian v UK (1992) 14 EHRR 153, para 59 See, for example, the Racial and Religious Hatred Act 2006; European Union Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law. p19, lines 10-25, Professor Tasioulas, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-16-July-2012.pdf ibid pp5-6, lines 23-4, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-23-January-2012.pdf; p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Lord-Patten1.pdf. http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_ govern/charter.pdf Part I, Chapter 8 O'Malley, T and C Soley, Op cit, p55 Described as 'the Chair' throughout the Report p48, lines 6-15, DCI Gilmour, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-9-May-2012.pdf p18-19, lines 16-25, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Afternoon-Hearing-30-November-2011.pdf p24, para 58, ibid http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DAC-Sue-Akers.pdf; passim pp54-55, lines 12-7, Dominic Mohan, ibid Part E, Chapter 5 p10, lines 12-16, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-24-April-2012.pdf p19, lines 14-21, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-November-2011.pdf pp22-24, lines 17-20, Charlotte Church, ibid p115, lines 9-13, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-12-January-2012.pdf p7, Iines 5-8, Sir Denis O'Connor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-12-March-2012.pdf pp26-27, lines 24-3, Lord Condon, ibid p71, lines 17-23, James Murray, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-19-March-20121.pdf The ACPO 'Advisory Group 2010 Guidance' http://www.acpo.presscentre.com/imagelibrary/downloadMedia. ashx?MediaDetailsID=238, referred to at paragraph 2.23, Part G, Chapter 3 above p33, line 13, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-5-December-2011.pdf p37, lines 23-24, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf Q1843 and Q1859, http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcumeds/362/9090208.htm http://www.legislation.gov.uk/ukpga/1998/29/section/13 pp1-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-RJT231.pdf Part H, Chapter 5, para 1.107 p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Harriet-Harman-QC-MP. pdf p30, para 94, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David- Cameron-MP.pdf pp16-17, ibid in the case of News Corp, a global media company which owns British national newspapers through News International p3, lines 2-4, ibid p1, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Aidan-Barclay.pdf p25, para 5.40, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-Measuring- Media-Plurality1.pdf Appendix 4 In a speech to the Society of Editors in November 2008 J pp42-45, lines 9-19, Mark Thomson, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Morning-Hearing-24-November-2011.pdf BBC Editorial guidelines, http://www.bbc.co.uk/guidelines/editorialguidelines/page/guidelines-privacy-introduction http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of-Brentwood1.pdf UKPCA proposal, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Second-submission-from-Mike- Granatt1.pdf K p1, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Joint-Submission-by-Core-Participant- Victims1.pdf Defamation Act 2009 s26, http://www.irishstatutebook.ie/pdf/2009/en.act.2009.0031.pdf p60, lines 1-25 and p60 lines 1-2, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/ Transcript-of-Afternoon-Hearing-14-June-2012.pdf There are definitions of 'newspaper in the 'Newspaper Registration and Libel Act 1881, and in guidance issues by HMRC in respect of VAT; both rely on print publication Part K, Chapter 7, para 4.39 Part K, Chapter 7, para 4.25 [2006] UKHL 55
"Well, considering the work that we were doing, investigating corrupt police employees, police officers and members of civilian staff, investigating journalists didn't present any fear. There wasn't any fear involved at all. But we did recognise the significance of what we were doing and the attention that that would attract and that would obviously shape how we approached that, but it certainly wouldn't have stopped us doing it and there was no trepidation around it."
¶2.5 He also denied fearing a backlash from the press.10
¶2.6 DCI Gilmour was asked whether the resource implications of taking on journalists and
powerful newspapers, who would have access to sophisticated legal advice, were a factor in their decision-making. His response was that such considerations would not have stopped the investigating team from doing what it needed to do.11
¶2.7 The terms of reference of Operation Glade were ultimately set down as follows:12 Complaints handling 709 Chapter 7: Conclusion 717 1 Introduction 717 2 Possible causes 719 3 The relevance of the internet 736 4 The press response to this Inquiry 737 PArT G: The PreSS And The POlICe: The relATIOnShIP 741 Chapter 1: Policing with Consent: the role of the press 743 1 Introduction 743 2 The purpose of the relationship and public confidence 745 3 Tensions in the relationship between the media and the police 748 Chapter 2: The history of the relationship: different Approaches 751 1 Metropolitan Police Service: the Commissioners 751 2 Other police forces 756 3 Press departments 763 Chapter 3: Press and the Police: the harm and the response 780 1 Introduction 780 2 The use and abuse of information 780 3 Entertainment: an overview 830 4 The perception of influence 851 5 The problems of friendship 898 6 Calibrating the harm: the views of Commissioners 928 v http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Assessor-Protocol-17-October-2011.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/231111-S19-restriction-order-HJK.pdf Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 per Lord Nicholls p49, para 47-90, Professor Baroness Onora O'Neill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Afternoon-Hearing-16-July-2012.pdf Feldman,D 'Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty', p54, http://clp.oxfordjournals.org/ p52, lines 3-12, Professor Jennifer Hornsby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Spencer-Feeney.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mike-Gilson.pdf; http:// www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John-McLellan.pdf; http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Jonathan-Russell.pdf ibid p5, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1. pdf p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-media- ownership.pdf Great Britain (1949) Op cit, p178 p54, paras 121-124, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of- Stephen-Abell.pdf p52, lines 4-18, DCI Gilmour, ibid pp6-7, para 4.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander- Owens1.pdf p43, para 84, ibid p9, lines 19-22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-6- February-2012.pdf pp12-13, lines 16-14, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-November-2011.pdf pp34-35, lines 17-13, Fiona Fox, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-24-January-2012.pdf p25, para 53, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-JK-Rowling2. pdf p16, lines 21-25, Colin Myler, ibid p20, lines 6-10, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-9-May-2012.pdf; p7, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/ Witness-Statement-of-DCI-John-Macdonald.pdf pp25-26, lines 11-14, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Afternoon-Hearing-28-November-20111.pdf p9, lines 3-18, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-12-January-2012.pdf p32, ibid p31, lines 21-23, Lord Condon, ibid p4, lines 16-24, Assistant Chief Constable Jerry Kirkby, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-27-March-2012.pdf Interim ACPO Guidance for Relationships with the Media, para 3.5, http://www.acpo.police.uk/documents/reports/2 012/201204IntGuiMediaRels.pdf pp30-32, ibid; p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Fourth-Witness-Statement-of- Richard-Thomas-CBE.pdf p54, lines 16-18, Richard Thomas, ibid p50, lines 10-12, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-9-December-2011.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC-redacted.pdf; without reproducing it in full here, his general introduction to the history and substance of the Act is a commendably lucid and concise overview which should recommend itself to the general reader and which I am pleased to be able to adopt for the purposes of this Report: see pp2-12. This was also covered in his oral evidence: pp1-20, Philip Coppel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning-Hearing-17-July-2012.pdf pp81-86, lines 17-3, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Afternoon-Hearing-9-December-2011.pdf Part H, Chapter 5, para 2.72 p11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-statement-of-Andrew-Neil.pdf pp22-23, lines 25-1, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-16-May-2012.pdf p50, lines 8-24, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf p15, ibid p20, lines 16-19, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-24-April-2012.pdf pp3-4, lines 24-2, ibid p12, para 40, ibid p21, para 5.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-Measuring- Media-Plurality1.pdf As I have made clear in Part E Chapter 5, there is an issue about the way in which the relationship between the Management and Standards Committee and the MPS has recently developed. I repeat that I am satisfied that it is not appropriate to elaborate further although the assistance upon which the police have had to depend only serves to make the point that this Chapter identifies This argument subsequently prevailed in the European Court of Human Rights following further litigation relating to Naomi Campbell when the Court ruled that the recovery of success fees at the level sought by lawyers in privacy and defamation cases represents a significant violation of freedom of expression. In that case, the figures were startling: Ms Campbell was awarded £3,500 in damages after the House of Lords ruled her right to privacy had been breached by a front-page story revealing her attendance at Narcotics Anonymous. Her legal costs came to more than £1m, including £288,468 base costs, £279,981.35 in success fees and £26,020 disbursements: see MGN v. United Kingdom (Application 39401/04) p171, para 247, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Stephen- Abell.pdf pp6-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Sumission-from-Jeremy-Hunt-MP.pdf; p8, para 3.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Tim-Suter-of-Perspective- Associates.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-C1.pdf pp6-7, paras 20-21, ibid pp3-7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Michelle-Stanistreet-on- behalf-of-the-National-Union-of-Journalists.pdf p54, lines 1-10, Professor John Horgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript- of-Morning-Hearing-13-July-20121.pdf para 179, report of Joint Committee on Privacy and Injunctions http://www.publications.parliament.uk/pa/jt201012/ jtselect/jtprivinj/273/273.pdf Part K, Chapter 7, para 4.24 Part K, Chapter 7, para 4.31 See for example, Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Lingens, cited above, §§ 41-42) and recently Centro Europa 7 SRL and Di Stefano v Italy (Application no. 38433/09)
255"To investigate (covertly) at this time the allegations against Marshall in order to prove or disprove his involvement in the offences alleged. The parameter of the investigation at this time will include Marshall himself, John Boyall and possibly
¶Chapter 2 | Police Investigations Start
Stephen Whittamore. There appears to be clear evidence that Marshall is conducting illegal PNC or CRO checks on behalf of John Boyall at the request of a number of reporters. The aim of the investigation will be to gather evidence of Marshall, Boyall and Whittamore's involvement in the misuse of the PNC or CRO systems with a view to prosecuting them for any offences disclosed or to prevent further misuse. Early consultation will take place with the CPS regarding appropriate charges should sufficient evidence be obtained."
¶2.8 It is noteworthy that the terms of reference did not expressly encompass investigating the
journalists who had received the information. In the event, however, it became clear that DCI Gilmour did not consider that this limited the extent of the investigation or prevented the investigators from turning their attention to those journalists at the appropriate time.
¶2.9 Through analysis of telephone data relating to Mr Marshall, the Operation Glade investigators
established that a retired police sergeant, Alan King, had been acting as the conduit between Mr Marshall on the one hand and Mr Boyall and Mr Whittamore on the other. There was no evidence that any other police personnel were involved. On 10 November 2003, Mr King was arrested.
¶2.10 Meanwhile, from the very detailed ledgers of Mr Whittamore's business, the investigators E
found invoices to journalists setting out what information was sought and his fee for obtaining that information. Contrary to the approach adopted in relation to Mr King, on or around 16 January 2004 DCI Gilmour decided to interview the journalists identified in the ledgers under caution (and therefore as suspects) but also decided, as an operational matter, not to arrest them, but to invite them to attend voluntarily for interview.
¶2.11 The difference in approach was explained on the basis that DCI Gilmour was confident that
the attendance of the journalists could be secured voluntarily, whereas the same was not so in relation to Mr King. He said:13
"The default isn't always to arrest in the first instance. My consideration then were what is it that I was hoping to achieve and what I wanted to achieve was to interview the journalists under caution. I, through the legal departments of the various newspapers, was able to access and secure the attendance of the journalists, and that was relatively straightforward, I think, without any complication. Whereas King, I didn't have that access to King and it was necessary…to secure his attendance at the police station for investigation interview by arresting him…for every suspect, it's a consideration as to whether or not they need to be arrested in order to achieve what it is you want to achieve."
¶2.12 He also explained it was not necessary to arrest the journalists because, given the evidence
256in the ledgers that the journalists had requested the information, there was no need to carry out searches of the journalists' premises (arrest carries with it certain powers of search under the Police and Criminal Evidence Act 1984).14 It is not without interest that this approach was not adopted in relation to Clive Goodman during the course of Operation Caryatid and neither is it necessarily accurate: in any case which is dependent on circumstantial evidence, whatever documentary evidence can be found is always likely to add weight (or detract) from the strength of the case. Having said that, however, the legitimacy of different approaches by different officers must be accepted and there is no evidence or basis for suggesting an ulterior motive.
¶PART E | Crossing Legal Boundaries: The Criminal and Civil Law
¶2.13 Between 19 January 2004 and 31 January 2004, the police interviewed seven journalists
under caution. As anticipated each attended voluntarily and was legally represented. All the journalists admitted that they had used Mr Whittamore to obtain information but each denied knowing that the information was being obtained unlawfully. DCI Gilmour said that a number of the journalists gave the account that they believed that the information was coming from the courts and that "CRO" stood for "Court Record Office". DCI Gilmour made it clear that it was put to them in interview that they must have known that Mr Whittamore was not obtaining the information from a court office because of the speed of turnaround of the requests, sometimes a matter of hours. However, each adhered to the line and claimed that he would not have used Mr Whittamore or any agency had it been known that the information was being obtained unlawfully. DCI Gilmour said that it was specifically put to them that, by their very nature, details of convictions must have been obtained unlawfully. The journalists simply pleaded ignorance.
¶2.14 The police sought the advice of the CPS as to the likelihood of successfully prosecuting all the suspects, including the journalists, and as to the appropriate charges.
¶2.15 The CPS advised that Messrs Marshall, King, Boyall and Whittamore should be charged with conspiracy to commit misconduct in public office. As regards the journalists, the CPS advised E that there was insufficient evidence to charge anyone because it was unlikely to be proved
that there was the requisite degree of knowledge that the information was being unlawfully obtained. DCI Gilmour explained his disappointment at the view of the CPS that they could not prove the necessary guilty knowledge.15 The Inquiry has not investigated the reasons for this conclusion (which some may argue appears overcautious): the relationship between the CPS and the press has not been the subject of investigation. What can be said with certainty, however, is that this material does not provide any evidence that the failure to prosecute any of the journalists was influenced or motivated by any fear of the press on the part of the police, or by any improperly close relationship.16
¶2.16 Messrs Marshall and King pleaded guilty to the conspiracy charges. A count of obtaining
personal information contrary to s55(1)(a) of the Data Protection Act 1998 was later added to the indictment against Messrs Boyall and Whittamore. They pleaded guilty to that offence and the conspiracy charge was left to lie on the file.
¶2.17 In April 2005 all four defendants were given conditional discharges and further details,
257including the judge's sentencing remarks, are in Chapter 3 below. DCI Gilmour made it clear that these sentences were a disappointment for the police. In May 2005, the CPS sought counsel's advice as to the merits of a reference under s36 of the Criminal Justice Act 1998 to the Court of Appeal to challenge the sentences on the ground that they were unduly lenient. DCI Gilmour explained that for a number of legal reasons, on which he was not able to elaborate, counsel advised against this course of action. The comment made in paragraph 1.11 above about current perceptions of the gravity of this type of conduct is repeated.
¶C
- Introduction 1.1 The information arising from Operation Reproof caused the Office of the Information
Commissioner (ICO) to focus attention on Steve Whittamore. As a result, on 8 March 2003, a team of investigators led by Alexander Owens from the ICO, and alongside police officers from Operation Reproof, searched the premises of the private detective agency run by Mr Whittamore. They seized a significant volume of documentation detailing an extensive trade in personal information. Mr Owens and his team then undertook a comprehensive analysis of the seized material and observed a clear audit trail between the requests, supply and payment for personal information relating to a range of subjects. The customers requesting and being supplied with personal information included a significant number of journalists, employed by a range of newspaper and magazine titles.
¶1.2 Ultimately, the implications of this material were of sufficient significance that the ICO was
prompted to lay before Parliament two reports setting out a summary of the evidence E obtained as part of the investigation: What Price Privacy? and What Price Privacy Now? The reports also called for stricter penalties for those engaged in unlawful activities, in particular for breach of s55 of the Data Protection Act 1998 (DPA). This provision makes it an offence to obtain, disclose or procure the disclosure of confidential personal information, knowingly or recklessly, without the consent of the organisation holding the data.1 This chapter explores the essential narrative surrounding this investigation and the evidence obtained during Operation Motorman.