Operation Reproof

¶1.1 In 2001, the Devon and Cornwall Police were investigating an allegation of blackmail in

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

¶1.2 In December 2001, therefore, a series of searches of various premises, which supported

that concern, were carried out. Material was seized which indicated that police officers and support staff from the force had been obtaining details of criminal convictions and information about the keepers of identified vehicles which were stored on police computer systems and E then passing that information to private investigators, who would in turn pass it onto their customers. The private investigators were, in the main, retired police officers.

¶1.3 Thus, in January 2002, Operation Reproof was initiated. The Senior Investigating Officer for

that investigation has now retired: his deputy, now Detective Chief Superintendent Middleton (then holding the rank of Detective Inspector) gave evidence to the Inquiry.1 The purpose of the operation, initially, was to scope the material that had been seized during the blackmail investigation, with the following terms of reference:

(a) to investigate the alleged offences and conduct interviews of the individuals identified as being in "jeopardy"; (b) to establish links with other agencies to identify individuals who had unlawfully revealed confidential information, and to preserve evidence in support of suspected offences and to interview those individuals; and (c) to report to the Crown Prosecution Service and the Police Complaints Authority.

¶1.4 Through an analysis of a "huge amount of evidence" the police discovered a network of

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

252

¶PART E | Crossing Legal Boundaries: The Criminal and Civil Law

¶1.5 The police sought to identify all the links in the chain and ascertain who in the chain knew

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

¶1.6 The investigation also showed that serving and retired officers from other police forces were

involved in similar illegal activities, and had links with the suspects in Devon and Cornwall. The relevant forces were contacted, including the Metropolitan Police Service (MPS) and the police forces of Dorset, Northumbria, Surrey and Essex.

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

Research Ltd. Data Research featured heavily as the third link in the chain. As it happened, at the same time, the Information Commissioner was conducting an investigation into the same company. On 8 March 2003, the police executed a search warrant at the company's offices during the course of which a significant amount of information was found which

¶E indicated that data had been obtained unlawfully from the DVLA. This information formed

the basis of Operation Motorman, an investigation then also conducted by the Information Commissioner (ICO) which has formed an important part of the narrative to the Inquiry. From this investigation, the ICO passed material to the MPS, which gave rise to Operation Glade. For convenience, having dealt with Operation Reproof, the narrative will pass on to Operation Glade and then to Operation Motorman.

¶1.8 DCS Middleton explained that the CPS and the Police Complaints Authority advised the

police to focus the investigation on (i) individuals who were either systematically providing or receiving information unlawfully from databases, and (ii) the customers who knew or ought to have known that the information had been obtained unlawfully. The upshot was that two serving police officers, two retired police officers and two individuals associated with Data Research Ltd were charged with misconduct in public office offences and Data Protection Act offences.

¶1.9 On 17 October 2005 a pre-trial hearing took place at Exeter Crown Court before the trial

judge, His Honour Judge Darlow. The defence argued that the proceedings should be stayed for an abuse of process. Although not directly relevant to this abuse of process submission, the defence also contended that accessing the databases and the subsequent passing of information obtained to insurance companies was "not that serious" and that unlawfully accessing the PNC could not amount to the criminal offence of misconduct in public office.3 The prosecution argued that the unlawful disclosure of the information was serious, irrespective of the use to which the data was intended to be put.

¶1.10 On 19 October 2005 the judge gave judgment on the issues raised. He roundly rejected the

defence submission that the proceedings should be stayed for an abuse of process. However, he also expressed the provisional view, not central to his principal conclusion in relation to the application of which he was formally seized, that the act of a police officer accessing the PNC and providing the information to a former colleague might not in the circumstances of this particular case amount to misconduct in public office, and in any event the matter was not terribly serious.

¶p13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-T-ACC-Russell-Middleton.pdf

253

¶Chapter 2 | Police Investigations Start

¶1.11 In any event, following the judge's comments, a number of case conferences took place with

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

¶1.12 In evidence, DCS Middleton was asked why journalists were not within the scope of Operation

¶Reproof. He answered:5

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

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

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

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

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