PART H
¶The Press and Data
¶Protection
¶H
999Chapter 1 Introduction
- Background 1.1 As part of an inquiry into the culture, practices and ethics of the press, the Terms of Reference
extend to a consideration of the extent to which the current policy and regulatory framework has failed, including in relation to data protection. It also requires a review of the extent to which there was a failure to act on previous warnings of media misconduct which undeniably includes the performance of the data protection regime. Data protection, with its origins in European and international law, is currently contained in the Data Protection Act 1998 (DPA) and is summarised elsewhere in the Report.1
¶1.2 The UK data protection regime suffers from an unenviable reputation, perhaps not wholly
merited, but nevertheless important to understand at the outset. To say that it is little known or understood by the public, regarded as a regulatory inconvenience in the business world, and viewed as marginal and technical among legal practitioners (including by our higher courts), might be regarded as a little unfair by the more well-informed, but is perhaps not so far from the truth. And yet the subject-matter of the data protection regime, how personal information about individuals is acquired, used and traded for business purposes, could hardly be more fundamental to issues of personal integrity, particularly in a world of ever- accelerating information technology capability, nor, on the face of it, more central to the concerns of this Inquiry.
¶1.3 It has the following features:
(a) The law identifies broad principles requiring businesses acquiring and using personal information to do so lawfully, fairly, accurately, for specific purposes and to the limited extent necessary for those purposes; the information must be kept safely and individuals have legally enforceable rights to know what information is held about them, to see it, and to ensure that it is accurate. (b) There are a number of specific exceptions to those rights and principles, including exemptions designed to balance those rights with other individual rights, such as H freedom of expression, and other public interests such as crime prevention. (c) The regime (along with the regime for freedom of information) is the responsibility of the Information Commissioner who has statutory power to investigate and rule on breaches, and enforce compliance (including by court action and prosecution). The Commissioner also has a wide-ranging function to promote awareness, compliance, and good practice over and above the basic legal requirements, including by education, guidance, publications and reporting to Parliament.
¶1.4 Successive Information Commissioners have worked hard and tirelessly to raise the profile
of data protection within businesses, and to support public awareness, including by tackling 'myths' and unnecessarily risk-averse behaviour, and promoting straightforward and common- sense business practices.
¶1.5 The Information Commissioner operates through an office (the ICO) and it was in the execution of these responsibilities that the ICO became involved in Operation Motorman. The public
¶Appendix 4
1000¶PART H | The Press and Data Protection
facing narrative is described as part of the history2 in this Report but the way in which the ICO considered it appropriate to discharge its functions is far more complex than that narrative reveals. Having uncovered what appeared to be extensive unlawful or unethical practices of the press in the acquisition and subsequent use of private personal information from corrupt officials and private sector employees and through the medium of unscrupulous third-party 'blaggers', a regulatory response was essential. How these challenges were approached, the political campaign that has followed and the extent to which insights can be learnt for the future is at the heart of this Chapter.
¶1.6 Also looking to the future, it is appropriate to move from a consideration of the specific
to consider the way in which the ICO operates in relation to the press and, in particular, to review the relevant parts of the legal framework along with its powers and governance.
¶1.7 Different parts of this Report have dealt with single systems. In relation to the activities of
the press, the focus has been on the operation of the criminal law and the approach of the Press Complaints Commission (PCC) to press conduct. The relationship between the press and the police has been examined through the operational decisions of the police and their interaction with the press. For politicians, the issue has been the different dynamics of the way in which they react with the press and the extent of any impact on public life. For the ICO, all these different elements are engaged. This part of the Report deals with the criminal law, the regulatory regime of the ICO and the way in which it sought to engage the PCC, other regulatory options open to the ICO, and the political sphere (in relation to the amendment to the DPA). It is thus somewhat more complex and, given the wide ranging recommendations about the operation of this statutory regulator with an extensive remit, has required a greater degree of analysis than other aspects of the Report: to that extent it is also different in approach.
¶1.8 Having been directed by the Terms of Reference to consider the press and the data protection
regime together, I have been conscious that the Report would be addressing matters relatively little noticed or debated in the public discussion of the Inquiry.3 I am also conscious that this subject matter has had relatively little scrutiny more generally. In this respect, as with many independent public inquiries, the task is to shine a light on an unfamiliar landscape. It is worth emphasising because so much of the rest of the material considered in this Report has been extremely fully ventilated, including editorially, as the Inquiry has gone along. The extent to
¶H which the relevance of data protection is and has been minimised is part of the background
to this Part of the Report, as is the question of some of the reasons and motivations for it. I am also conscious that the discussion of this relatively unfamiliar territory throws aspects of it into relief in a way which may be a matter of surprise even to those more familiar with it. A fresh and independent perspective, by definition, is an opportunity for a different way of looking at things and perhaps of questioning some assumptions.
- The ICO: structure, governance and approach
¶2.1 The Information Commissioner is a 'corporation sole' appointed by Her Majesty The Queen
and independent of Government who (like the senior judiciary) can only be dismissed pursuant to an Address from both Houses of Parliament. He is funded by fees and grant-in-
¶Part E, Chapter 3
¶Although the evidence from the two Information Commissioners and two members of staff was heard over a comparatively short time (occupying one full day and less than three half days) the ripples flowing from Operation
¶Motorman were felt throughout the Inquiry and were the subject both of evidence and legal argument. Detailed and comprehensive expert evidence was also called. The extent of this analysis has meant that particular care has been taken to address subsequent submissions by the two Commissioners which dealt with more wide ranging considerations
1001¶Chapter 1 | Introduction
aid voted by Parliament and supported through the Lord Chancellor and Ministry of Justice. Operationally independent, the full functions of the Office are exercised personally though the office holder who appoints staff who work by direct delegation from him. Between 2002 and 2009, the Commissioner was Richard Thomas, a solicitor by training. He was based in offices in Wilmslow and had two deputies and the office now has over 300 staff (including lawyers and investigators). The operational investigations department reported to him via one of the Deputies. Francis Aldhouse, also a solicitor, fulfilled this Deputy role from 1984 (in the precursor organisations) until his retirement in 2006.
¶2.2 Mr Thomas described his approach in this way:4
(a) As an overview, his role was "partly a regulator, partly an ombudsman, partly an educator and partly a policy adviser" the cornerstone being the duty to promote good practice including, but not limited to, compliance with the minimum legal obligations under the regime.5 (b) The ICO was "primarily not a prosecuting authority. That was almost on the side".6 The main formal power in the event of non-compliance was the 'enforcement notice', which could specify and require compliance action subject to the back-up sanctions of court enforcement, although this was not frequently used. (c) The principal power of investigation was the ability to serve an 'information notice' on an organisation to ascertain whether it was complying with the regime. This also was 'very, very rarely' used because, in most cases, asking a business to co-operate and supply information usually sufficed. (d) Prosecution powers were limited to s55 of the DPA and did not extend, for example, to other offences such as phone hacking (although this might also technically involve a s55 DPA breach). (e) Mr Thomas linked the application of the statutory 'public interest' defence provided by s55 to the core function of the ICO in freedom of information, in virtually every difficult case, in balancing public interest considerations for and against disclosure (on which it had published a great deal of guidance).7
¶2.3 Mr Thomas did not regard the ICO as "a regulator of the press as such" although the data
protection regime applied to each media organisation which, therefore, was regulated and fee paying. He considered the exemption contained in s32 DPA (covering personal H information being used for the 'special purposes' of journalism, literature or art) as severely circumscribing and limiting the powers of the ICO in relation to the press, disapplying most of its enforcement powers where data is used for journalistic purposes while at the same time being 'incredibly complicated'. He had rarely had to engage with the issue (because it 'didn't arise') and did not consider it particularly relevant to the Inquiry.8 He considered that any journalist seeking to rely on the 'public interest' provision to disapply s55 would be expected
¶p5 onwards, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf 5 p75, Richard Thomas, ibid
1002¶PART H | The Press and Data Protection
to be very scrupulous about checking and recording the aspects of the public interest on which he or she was proposing to rely, in order to be able to take any available advantage of that provision.
¶2.4 From this short summary, it appeared that the ICO relied, in the main, on an informal means
of doing business. That is usual regulatory practice. The 'cornerstone' function of promoting good practice was largely discharged through co-operation with and encouragement of businesses; although little touched on in evidence, it appears that this was also the case with the ICO's complaint resolution or ombudsman function. It was not an organisation by its own account which regularly used its principal legal powers; prosecutions, in particular, were not its main business, but neither, it would appear, was direct regulatory enforcement. The main concern was prevention of poor practice and promotion of good practice. The Inquiry explored the extent to which the ICO was familiar with the press as an industry dealing in personal information, and with the specific aspects of the data protection regime applying to the press, and how it saw its role in relation to commercial journalism.
¶H
1003Chapter 2 Operation Motorman
- The investigation 1.1 The background and history of Operation Motorman is fully described above1 and does
not need repetition. When Alex Owens2 attended the search in Operation Reproof, he was well aware that the data protection regime fastens on the acquisition, use and disclosure of personal data by public authorities under compulsive powers. As well as the application of the criminal law, the principles and rights of the regime are designed to ensure that individual civil liberties are respected and safeguarded when individuals' personal information is taken into the hands of public bodies, and that public bodies are strictly limited in terms of what can be done with that information and who can see it. Thus, although the focus of the police was the question of the corruption of public officials entrusted with people's confidential information, the primary interest of the Information Commissioner's Office (ICO) was the information itself, and the consequences of the unlawful access and disclosure for the people whose information it was and for the organisation whose responsibility it was to take care of it.
¶1.2 Having identified Steve Whittamore as a self-employed private detective who had been
requesting details from the DVLA in relation to a protected vehicle registration number, the ICO undertook the initiative to obtain a search warrant under its own powers. When it was executed, what was seized (over five-six hours) came to be referred to within the office as a 'treasure trove' or Aladdin's cave in the form of a substantial quantity of documentation together with four colour-coded notebooks ('the Motorman material'). These contained a very large amount of personal information, evidently acquired without the knowledge or consent of the people in question.
¶1.3 Mr Owens was concerned about a number of features. First was the sheer quantity of
the information and how extensive and specific it was. Second, there was the fact that it appeared to have been obtained in the course of an investigative business spanning a period of years and earning considerable sums. Third, the evidence suggested that the material had been specifically requested and paid for by journalists writing for a significant range of newspapers and periodicals and related to a large number of well-known people (or those H close to them), including household names from the world of entertainment, sport, politics and other arenas of public life. Finally, Mr Owens was struck by the nature of the information, including personal details from restricted databases, clearly obtained in ways which were inconsistent with good data protection practice, with the legal rights and principles set down in the data protection regime, and even in some cases with the criminal law. During the course of the search Mr Whittamore was present and although not formally interviewed, Mr Owens reported (albeit speculatively) that:3
1004"Whittamore made it very [clear] to me that whilst he would admit to his own wrong doing, under no circumstances would he say anything which would incriminate any
¶PART H | The Press and Data Protection
member of the press. I was undecided as to whether this was because he feared the press or whether he anticipated some financial recompense in return for his silence."
¶1.4 Mr Owens reported back to the senior management, briefing both Mr Thomas and Mr
Aldhouse. There are different recollections of discussions about the future handling of the material (which are discussed below). In the meantime, he began the laborious task of sifting the material and arranging for it to be placed on an electronic database. Although the lead came from a criminal investigation, the data protection aspects were apparent to the ICO with the 'treasure trove' they came upon taking them into a dimension of data misuse going far wider than specific issues of corruption which concerned the police. In fact, it appeared that the ICO had come upon an organised and systemic disregard for the data protection regime of a scale, duration and seriousness going beyond poor practice, beyond breach of the principles and rights of the regime, and into the realms of criminality in its own right.
¶1.5 There was thus no doubt that the ICO, through Mr Owens, was preparing the Motorman
material to form the basis of a prosecution under s55 DPA: they planned to prepare some 25- 30 of the more egregious cases for detailed investigation and selective interviews in order to found specimen charges against a number of persons who could include (a) corrupt officials and employees who were providing the information to Mr Whittamore directly for money; (b) blaggers, who were obtaining the information for him by deceit; and (c) the press, who were commissioning (or 'procuring' in the language of s55) the information in the first place. In that regard, counsel subsequently advised:4
"Having regard to the sustained and serious nature of the journalistic involvement in the overall picture, there can be little doubt that many, perhaps all, of the journalists have committed offences. The inference, overwhelming it seems to me, is that several editors must have been well aware of what their staff were up to and therefore party to it."
¶1.6 When it came to Operation Motorman, Mr Aldhouse had responsibilities which included
providing direction to the head of investigations at the time (and so was formally answerable to Mr Thomas for the conduct of Operation Motorman). He said that it was not his role to direct investigations himself; rather, he had to supervise the person running the investigations department.5 His own focus was on policy work, not least on the significant European
¶H dimension to data protection, which often took him to Brussels.
¶1.7 Asked specifically about the operational issues which the discovery of the Motorman material
1005raised for the ICO, Mr Aldhouse had no recollection of when he first heard about the case, nor of any internal meetings to discuss it (including those meetings at which the investigator Alex Owens alleged that decisive policy positions on the operational conduct of Motorman were taken by senior management). Mr Aldhouse himself said he never looked at the original Motorman material, nor the legal advice obtained by the office about it. When asked by Counsel to the Inquiry whether there was anything in the office at the time which was as big or as important as Operation Motorman, Mr Aldhouse accepted that, from an operational investigations point of view, it probably was the largest investigation.6 However, he firmly
¶Chapter 2 | Operation Motorman
maintained a position of non-involvement and, hence, non-accountability. That exchange included this:7
Q: "I think all I'm gently suggesting, Mr Aldhouse, is this - and it's probably fairly obvious now: we have possibly the most important investigation involving your office, Operation Motorman. It has very serious ramifications. It was clearly being ramped up at this stage. Mr Thomas had it in mind to make a report to Parliament shortly afterwards and he did. Surely you were involved, even in informal discussions with Mr Thomas, as to the direction your office was taking, weren't you? A: "Well, I think they would only have been casual ones..."
¶1.8 These answers were consistent with his brief witness statement which suggested little in the way of senior oversight of operational matters at all. He said:8
"I am unable to comment on the detailed history of the Operation Motorman inquiry in the direction of which I was not involved. I believe that the investigators conducted the matter together with the Commissioner's lawyers....I regret that because of my limited role in the Operation I am unable to help the Inquiry further."
¶1.9 Mr Aldhouse was also asked about the senior structure in the ICO. He described a
'management team' comprising the Commissioner, two Deputies, a handful of Assistant Commissioners: 'perhaps ten or a dozen very senior people'9. But this team does not seem to have been engaged in any decision-making about the Motorman case, either operationally or strategically. Was it not surprising that neither the responsible Deputy personally, nor the organisation's senior management team, was consulted or engaged? Mr Aldhouse's response was:10
"Am I surprised? I'm disappointed. Not necessarily surprised. ... well, yes, I'm sure in retrospect it would have been - one could well say: wasn't this big enough for the whole of the management team to be involved? ... I certainly had views, anyway, yes."
¶1.10 As will be clear, despite being organisationally and functionally responsible for the
1006investigations team, Mr Aldhouse placed himself at a considerable distance even from personal knowledge of the Motorman material. As Mr Thomas put it, with what appears to be a degree of understatement, "Francis was somewhat disengaged on these matters."11 Mr H Thomas himself, however, appeared to have grasped the implications, appreciated that it was very serious and congratulated Mr Owens and the team.12 He explained that, in what was the first year of his appointment:13
¶PART H | The Press and Data Protection
"I was told about a "treasure trove" of evidence which the team had obtained under a search warrant as part of 'Operation Motorman' … There was a feeling that the material was of sufficient quality and quantity to make this a major case which would bring home the seriousness of the [s55] offence."
¶1.11 The assessment made by Mr Thomas of the Motorman material was that he saw it as "hard
prima facie evidence ... of offences",14 on a scale that could hardly have been greater for the data protection regime. He said:15
"So my understanding, I think, remains the case that this was a far more serious matter than a breach of section 55."
¶1.12 Specifically, Mr Thomas apprehended that it was likely that that the journalists' involvement
in the acquisition and use of this information took them within the sphere of conduct so seriously at fault as to be prima facie criminal. Criminal conduct by journalists was the ICO's 'very, very strong hypothesis'. This understanding was tested during his evidence,16 from which it appears that the following aspects of the Motorman material were particularly striking:
(a) Some of the material from the protected public databases could not have been obtained by lawful means at all, and appeared very likely to have breached specific statutory bars on disclosure. (b) It was known that Mr Whittamore did have corrupt sources in both the public and private sectors: these had been identified. (c) The pricing structure for the commissions was indicative of criminality because they were either too low to suggest that it had been obtained lawfully (because of the effort and time which would have been involved) or high enough positively to suggest a premium relating either to incentivising legal risk or corruption (with some cases, concerning very well known individuals) involving very large sums. (d) The circumstances suggested that it was highly likely that the journalists were knowing or reckless as to the unlawfulness of the means by which the commissioned material was acquired and that, on the face of it, it was unlikely that the s55 defence relating to the public interest would be available in the generality of cases.
¶1.13 It must, of course, be appreciated that criminal proceedings are complex to mount and H involve a high standard of proof but, quite apart from criminality, Mr Thomas understood
that serious questions were raised by the Motorman material and there were causes for real concern. In his fifth witness statement, he outlined the way in which the ICO had classified the 13,343 transactions recorded as follows:17
1007"(a) 5,025 identified 'as transactions that were (of a type) actively investigated in the Motorman enquiry and ....positively known to constitute a breach of the DPA 1998.' (b) A further 6,330 representing 'transactions that are thought to have been information obtained from telephone service providers and are likely breaches of the DPA. However, the nature of these is not fully understood and it is for this reason that they are considered to be probable illicit transactions'.
¶Chapter 2 | Operation Motorman
(c) The balance of 1988 lacking sufficient identification and/or understanding of their nature to determine whether they represent illicit transactions or otherwise."
¶1.14 Mr Thomas then put the matter in this way:18
"The classification of the transactions related to the apparent commission of offences … But I suggest that there must be at the very least ethical questions where a journalist is the regular customer of an investigator who commits an offence to obtain the information, whether or not the journalist has also committed a procuring offence in relation to that transaction. Such ethical questions are even more pertinent where … the investigator could obtain the information "more quickly and reliably than they [the journalists] were able to", at least some of the information was of a confidential nature and Mr Whittamore was pressing to sell other pieces of information obtained for other clients."
¶1.15 Mr Thomas was in no doubt that a significant proportion of the Motorman material did indeed
constitute evidence of criminality, particularly in contravening specific bars on the disclosure of material from databases under the control of public authorities. As for the possibility of a defence under s55 DPA, he said, for example, that "I haven't seen a whiff of public interest. It was tittle-tattle. It was fishing. There may be one or two examples, but they would be exceptional."19
¶1.16 He also made two further points. First, the theoretical availability of material by lawful and
fair means did not by itself render innocuous the acquisition of material by other means which did, in fact, constitute breaches of the data protection regime. Secondly, at the very least, most of the material in question was not reasonably to be regarded as in the public domain, and therefore had a quality of confidentiality.
¶1.17 I have no doubt that this analysis is both important and valid. It was for that reason that
I took the view that it was both appropriate and correct that Mr Owens should produce the Motorman material to the Inquiry but that (given the privacy of those whose records had been mined), it should be seen by the core participants under strict confidentiality and should remain in redacted form.20 Having said that, I summarised the effect of the evidence in this way:21
1008"It's abundantly clear, looking at the electronic records, which you've checked against H the actual documents, that Mr Whittamore had collected together a vast amount of personal data. The documents identify the names of titles and specific journalists at the titles apparently or inferentially making the request. It identifies the names of people from a wide range of public life and in the public eye, and provides addresses, telephone numbers, mobile telephone numbers and charging details for that information. It's not necessary to go into the identity of the individuals, … it's not necessary otherwise to identify titles or names and certainly not necessary to identify the persons who were the targets of enquiry. In relation to some of them, it is absolutely right that there may well be a public interest justification in the enquiry. In relation to others, however, it
¶PART H | The Press and Data Protection is difficult, if not impossible, to see what public interest justification there could be."
¶1.18 A further point that Mr Thomas made was to recognise the possibility that the Motorman material was representative in nature. He said:22
"I have always recognised that the material seized in Operation Motorman came only from one group of investigators and may have been entirely isolated. Equally, many other private investigators were known to be active and it is difficult to believe the investigators raided by the ICO were the only ones with press clients. This view is strengthened by the quite separate Goodman / Mulcaire prosecutions which came to light after the first ICO report and which had parallels with the section 55 offences and reinforced the evidence gathered during Operation Motorman."
¶1.19 This identifies the general awareness of, and concern about, the security of confidential
databases in both the public and private sectors, the sensitivity of the concentration in those databases of very large amounts of personal data, and the risks of that getting into the wrong hands.23 Albeit retrospectively, Mr Thomas also made the connection between the Motorman material and the subsequent evidence of phone hacking undertaken within the press24 as did Mr Owens.25 In any event, however, there was a clear apprehension of a general problem concerning unlawful and unethical trading in personal information, including, but not limited to, the press.26
¶1.20 In sum, therefore, Mr Thomas, and the ICO more generally, was aware that the Motorman
evidence was an indication, in relation to the culture, practices and ethics of the press and beyond, of conduct that was likely to be criminal, probably constituted systematic breaches of confidentiality, privacy and the principles and rights of the data protection regime, was certainly unethical, and was "quite outrageous in policy terms".27 As summarised in the ICO's report to Parliament, it amounted to evidence of "a flourishing and unlawful trade in confidential personal information by unscrupulous tracing agents and corrupt employees with access to personal information".28 The Culture, Media and Sport Select Committee in 2003 described it as a "depressing catalogue of deplorable practices".29 The modus operandi, and the harm done, was well understood.30 How it was addressed by the ICO now falls to be considered.
¶H 2. The ICO response: leadership
¶2.1 As the office holder, Mr Thomas was in a unique position to influence the culture and priorities of the office and to determine the nature and degree of his own personal priorities. In that
1009¶Chapter 2 | Operation Motorman
regard, it is noteworthy that he was at pains in his evidence to the Inquiry to distance himself from the operational decisions made about Motorman; effectively, he disclaimed significant contemporaneous knowledge of the operational management of the case. It is also striking that, as Mr Thomas was aware, his Deputy, Mr Aldhouse, also distanced himself from the operational management of the case.
¶2.2 Although aware that a wealth of material had been recovered, Mr Thomas had little
recollection of the briefing or of discussing the detail. He emphasised that the question of investigating the role of journalists and newspapers in the events "was not a matter with which in any way I was engaged";31 at the time "I can't really say that I was giving very active consideration to these matters";32 and "I personally did not give any serious consideration to that matter, and I cannot recall any conversation or discussion when that particular issue was being discussed".33 He said, for example, that it was only as a result of being asked to assist the Inquiry that he had latterly become aware that the MPS had investigated journalists as part of Operation Glade, of the note made by his office of their meeting with Counsel on 3 October 2003 advising that there were grounds in the Motorman evidence for proceeding against journalists,34 or that the judge hearing the Motorman prosecutions at Blackfriars had questioned the lack of proceedings against any journalist.35
¶2.3 I must admit to being surprised about the extent to which Mr Thomas distanced himself
from the practical details of the operation that was later to take up so much of his attention politically. By his own account he did not direct the operational strategy, involve himself in key decisions or, it would seem, keep himself especially closely briefed. One of the earliest notes of his reaction was a handwritten entry in a personal notebook36 written between 3 and 10 March 200337 recording: "Francis – Newspapers/s55". Unable to recall any conversation with Mr Aldhouse, Mr Thomas was pressed as to whether this did not suggest a personal interest in the press dimension to Operation Motorman. But he remained firm: he personally did not give any serious consideration to the operational dimension. He 'assumed' that an operational decision would be taken at the level of Mr Owens and the in-house legal team, about whether and to what extent to pursue action against the press. Put to him that he must at least have been aware that no journalist was being prosecuted, that he must at least have been alert to the criminal process, he replied that that was only in very general terms. There were, he pointed out, 'many, many other matters going on at that time'.38
¶2.4 The 'Newspapers/s55' note might, at least, be thought to suggest that Mr Thomas was H
1010concerned with the criminal process. It is to that issue that most if not all references to his assumptions about the operational management of Motorman are made in his evidence.39 He stated, for example, that:40
¶PART H | The Press and Data Protection
"It was my understanding that the case would be pursued in line with established Office practice – prosecutions led by the in-house legal team, advising and acting upon the evidence obtained by the Investigations Unit. I was subsequently kept broadly abreast of developments, notably that the CPS were taking over the prosecutions [this is, of the private investigators] and then that trial had resulted in major disappointment. The ICO lawyer with lead responsibility was Phil Taylor."
¶2.5 The Motorman material had emerged in the course of a criminal investigation, but its
implications for the data protection regime were much broader than that. There is no indication, however, that aspects other than prosecution were actively being considered within the ICO. It is difficult on the face of it to understand why not: that question is considered in some detail below.
¶2.6 Both in law and in terms of the reputation of the ICO, operational decisions, especially any
involving the press, would have been complex and significant, and Mr Thomas was ultimately accountable for them. Motorman was not a simple operational issue: it was an indication of data protection breaches and poor practice on an unprecedentedly large scale and driven by the newspaper industry. It obviously engaged the ICO functionally and could have reputational consequences. In addition to criminal proceedings, there was a spectrum of powers and functions which, at any rate potentially, could be engaged, in different combinations. These are considered in more detail below. Given the inherent risks in criminal proceedings, contingency planning was also in question. In other words, there were strategic decisions to be taken in considering the operational response to Motorman which could only be taken effectively at the level of strategic overview. However those in a position to take that strategic overview of operations emphasised to the Inquiry that they were not doing so.
¶2.7 In addition to operational responses there were political possibilities and it is these that Mr
Thomas focused on. His strategy was to take a twin-track approach, consisting of initiating a dialogue with the Press Complaints Commission and undertaking a campaign to persuade the government to change the law to introduce custodial sentence maxima for s55 of the Act. In some ways, Mr Thomas characterised this as in itself an operational response:41
"I think we were using our powers to promote good practice. That was a far more general power, and you know, that was the justification, the rationale – the statutory
¶H foundation for much of what we did was promoting good practice. I would describe pretty well everything we did in this area as promoting good practice."
¶2.8 There were, however, risks in the extent to which the most senior staff were at a distance
1011from the specifics of the operational response to Motorman. The first was that the strategic approach adopted would be insufficiently informed by detailed operational knowledge and understanding of the problem revealed. The Motorman material was a very rich resource of empirical evidence of the nature and scale of the presenting problem, and any strategic solution was likely to have been importantly enriched by expert analysis of that information in the context of the industry in question. The second risk was that the political and operational responses would be insufficiently well co-ordinated for the maximisation of the effectiveness of each. Decisions made in one context might well be capable of affecting the other at least at a handling level. Mutual knowledge and understanding would be important resources for both. Finally, the third risk was that if the top of the office did not sufficiently communicate with or engage the operational part of the office about the political strategy,
¶Chapter 2 | Operation Motorman
operational decisions might be taken on the basis of weak knowledge or assumptions about the operational implications of the political strategy.
¶2.9 As for the distance that Mr Thomas kept from operational decision-making in Motorman, he put his own frame of mind in embarking on his twin-track political strategy in this way:42
"My speculation is when I was told some time in October or November [of 2003] that it was going to be too expensive or too difficult to pursue the journalists, that's when I went off to the Press Complaints Commission. But throughout that period from March to October, as far as I was concerned, it was being handled in what I can broadly call the normal way by those who were charged with enforcing Section 55."
¶2.10 This speculation does not seem to be strictly accurate. At the time, with the assistance of
Counsel, the investigations officers evidently continued actively to consider the possibility of criminal proceedings in relation to the press. The availability of civil investigation and enforcement powers also fell to be considered in the alternative in any event. In other words, Motorman, remained a live operational issue for the ICO at the time Mr Thomas embarked on his political strategy; there were therefore risks both to it and to his own plans.
- The approach to the PCC 3.1 Mr Thomas was clear that it was his personal decision to approach the PCC;43 this was reinforced by his Deputy, Mr Aldhouse. In oral evidence to the Inquiry, Mr Aldhouse said:44
"I do recall that Richard Thomas decided that he wanted to pursue the route of going to the Press Complaints Commission and writing to Sir Christopher Meyer, but I have to say I think that was Richard Thomas's decision rather than the result of some discussion."
¶3.2 Pressed as to whether he would not have expected, as Deputy, to have been involved, he
said he would, but he was 'otherwise engaged', including in Brussels. Although Mr Aldhouse saw his own role as somewhat dissociated, given the policy ramifications that the Motorman case might throw up and the potential cost implications for the ICO, when asked whether it was strange that he was not at least involved quite closely in discussions with Mr Thomas, his response was:45 H "What can I say? It's for the Commissioner to decide how he runs the office. If - and it is worth bearing in mind, of course, that it is - that the Commissioner is a one-man band and if the Commissioner decides to take a route, so be it."
¶3.3 In the event, on 4 November 2003, Mr Thomas wrote personally to the Chairman of the
¶PCC, then Sir Christopher Meyer.46 He explained that his idea had been to 'go collectively'
1012¶PART H | The Press and Data Protection
rather than individually to the press.47 This gives rise to a number of issues. First, what his understanding of the role and functions of the PCC was (and how that developed); second, to what extent he understood the PCC to be a representative of the press collectively and to what extent a regulator of the press (two very different propositions); and third, how he judged the ICO and PCC would relate to each other functionally and how he managed that relationship. The resolution of these leads to the overarching question about the objectives in approaching the PCC, whether they were appropriate and how effectively were they achieved.
¶3.4 In relation to his approach and objectives, Mr Thomas was looking at these at a high level and
generic nature which was some distance from the immediate operational issues faced by the ICO. He did not have it in mind to ask the PCC to investigate the specifics of the Motorman material or the conduct of the press (although he does not appear to have resolved how an investigation would be handled if at all within the ICO). He wanted a general, forward- looking exercise, conducted across the industry as a whole, with a view to putting a halt to the practice of commissioning unscrupulous private investigators to obtain confidential personal information without regard to whether means such as blagging and corruption were used. He considered that this would principally be achieved by issuing a prominent and general condemnation of the practice and securing appropriate changes to the Editors' Code.48 There is, however, no clear indication of how Mr Thomas thought condemnation by the PCC and changes to the Code would definitively terminate the practice, nor of what, if any, complementary action would be necessary or desirable on the ICO's part to achieve that result.
¶3.5 Mr Thomas was also concerned about the tone of his approach. He wanted to make a
'constructive and friendly'49 overture to the senior leadership of the PCC. He evidently had in mind that a 'good relationship'50 would be important. There was to be an element of outreach and informality, so lunch meetings were contemplated, Mr Thomas would attend on the PCC so far as location was concerned (a concession inevitably constrained by the location of his premises in Cheshire), and formal or agreed notes were not expected. In other words, Mr Thomas intended to conduct the relationship himself, at a personal level and in a personal manner.
¶3.6 The letter51 drew attention to a recommendation of the Parliamentary Culture, Media and
¶Sport Select Committee that the Editors' Code should be amended to include explicit bans on H payments to the police for information and on the use and payment of intermediaries such
1013as private detectives. The letter outlined the Motorman findings and the Metropolitan Police investigations. It stressed the considerable volume of material uncovered; the indication that journalists from most newspapers and many periodicals were customers of Mr Whittamore; and that numerous journalists routinely obtained confidential information that 'they should have no access to'. It suggested that this material was being obtained in the service of celebrity gossip, not to expose wrong-doing, and that the sums involved and the nature of the documentation made it 'difficult to believe that senior managers were not aware of what was going on, and were therefore at least tacitly condoning it'.
¶Chapter 2 | Operation Motorman
¶3.7 The letter also indicated that the ICO was considering whether to take action under the DPA
against individual journalists and/or newspapers. It was put to Mr Thomas by the Inquiry that this was an empty threat; he resisted the idea that it was a threat of any sort, on the basis that he intended the letter to be a 'constructive and friendly opening in my engagement with the Press Complaints Commission' but he did accept that 'it may have been somewhat overstating the case'.52 It suggested however that the ICO had provisionally concluded that it would be appropriate first to give the PCC and its Code Committee the prior opportunity to 'deal with' the issue in a way which would put a stop to the 'deplorable' practices across the media as a whole. It envisaged that the ICO would provide some of the Motorman material to the PCC and that the PCC would respond with a suitable change to the Code; this could provide a more satisfactory outcome than 'legal proceedings' and would also, it was suggested, be consistent with Sir Christopher Meyer's wish expressed to the Select Committee to demonstrate the effectiveness of the PCC.
¶3.8 In the light of all that has been said about the PCC, it is significant that the letter addresses
the relationship between the ICO and the PCC as Mr Thomas saw it. Intending to discuss the relationship, he said:53 "I believe it would be to our mutual advantage to meet at an early opportunity to discuss the matters raised in this letter and, more generally, our respective roles and the relationship between our organisations." He also indicated that: "though I do not wish to usurp your role as the regulator of the press - newspapers, and their employees, are subject to the Data Protection Act 1998."54
¶3.9 Mr Thomas was surely correct to suggest that the respective roles and responsibilities of
the two organisations, namely the statutory data protection regulator and the industry's voluntary body, would be an important issue. The obvious asymmetry made it so. The ICO had legal functions and duties to be discharged in relation to the matter of how businesses acquired and used individuals' information; the PCC did not. It is inevitable therefore that Mr Thomas's approach would have had to have been at the level of seeking to elicit the voluntary cooperation of the PCC rather than making a claim on any complementary or overlapping formal legal jurisdiction.
¶3.10 Mr Thomas's letter suggested a meeting within days at the offices of the PCC; he approached H
that meeting in a structured way, preparing a speaking note55 setting out his evident hope that the PCC would respond with a 'general condemnation' and changes to the Editors' Code. The meeting took place on 27 November 2003, Sir Christopher was accompanied by Guy Black (then the Director of the PCC, now Lord Black of Brentwood).
¶3.11 Mr Thomas said that, initially, the PCC had at first not really known why the ICO had approached
1014them, but that the atmosphere changed as he set the matter out and he convinced them a serious matter was in issue and that the two organisations would work together to deal with the problem.56 His subsequent written notes stated:57
¶PART H | The Press and Data Protection
"The PCC would like time to consider their response. They were clearly surprised by the scale and nature of the material we have collected and see this as a 'watershed' in terms of this sort of activity. "Although this was not suggested by us, they would be resistant to 'taking over' individual cases and taking action in each case instead of us. Their starting point was that statutory bodies should enforce the law, not them. But they seemed to be increasingly ready as the meeting progressed to work with us as 'fellow regulators' with a strategic response. This might lead to some sort of general condemnation and – though there are some difficulties – an amendment to the Code. "It is for them to identify precisely what they might do, and they recognise this. They want a second meeting before Christmas."
¶3.12 It is somewhat surprising that Mr Thomas appears to have seen a measure of equivalence
between the roles of the ICO and the PCC, if not actually of deference to the latter. In oral evidence he explained that "I think we were both very proud of independence, I'm sure",58 and he noted to himself after that first meeting that it had been "constructive – 'fellow regulators'". In the circumstances, I felt driven to ask:59
"What are you relying on as concluding that the Press Complaints Commission was a regulator? You're a regulator, but you've concluded here that they're a regulator, or asserted that they're a regulator. I'm just interested to investigate your understanding of that."
¶3.13 The response from Mr Thomas was that the PCC called themselves a 'self-regulatory body'
and confirmed that at that point he certainly saw them as such; and therefore as likely to be 'intelligence-driven, proactive, mainly focused on either prevention or punishment'. He had drawn parallels with the Advertising Standards Authority and the banking and insurance ombudsman schemes with which he was familiar from his previous career, and saw the PCC as, like the ASA, able to intervene and take action to prevent unacceptable behaviour. It was with that expectation that he had approached Sir Christopher. The PCC was 'supposed to be in charge of the press, they ought to know what's going on'60 and, indeed, to stop it.
¶3.14 Mr Thomas accepts now that this was a misconception. In oral evidence to the Inquiry he H confirmed that:61
"I did see them and they held themselves out as a regulator and I think experience showed that they were not a regulator in the conventional sense."
He went so far as to suggest that the inadequacy of the PCC to the task he had envisaged for it formed a part of the dialogue:62
1015"I can recall saying, you know, 'Why can't you transform and change the Press Complaints Commission to make it look more like the effective self-regulation models I've encountered elsewhere?'"
¶Chapter 2 | Operation Motorman
¶3.15 His current understanding was that the PCC was essentially a complaints handler, with functions
focused on the investigation of complaints from the public. That leads to the question of the steps he might have taken to ascertain the position at the outset, or as his understanding of the PCC developed over time, not least bearing in mind his express placing the question of the relationship between the two bodies on the agenda at that original meeting. This is important because the assumption of equivalence (or deference) with which he mistakenly embarked on the initiative with the PCC could have had direct implications for decisions the ICO might otherwise have made about the exercise of its own powers and functions. That, as well as Mr Thomas' personal distance from the operational issues raised for his office by the Motorman data, put him in an unsatisfactory position in embarking on this enterprise.
¶3.16 Furthermore, although the initial letter expressly put the question of respective roles and
relationships on the agenda for discussion with the PCC, it is evident that the opportunity was not in fact taken to clarify that fundamental question. Mr Thomas was specifically asked whether the role of the PCC was described and his perception discussed and corrected.63 His response was that over the course of his interactions with Sir Christopher 'we've probably touched on some of these matters'. Given the significance that Mr Thomas attached to this approach that cannot, in the circumstances, be considered a satisfactory basis on which the ICO, as a statutory regulator, ought to have made any decisions about respective roles and responsibilities. The likely explanation for (and consequences of) this is considered below.
¶3.17 Sir Christopher's own account of that first meeting was more highly coloured. He was evidently
interested in what he heard about Motorman: he characterised the ICO as describing a 'fairly apocalyptic situation',64 leading them to expect court action in relation to the press (which did not materialise), but principally in getting to the data underlying the issue:65
¶"I wanted beef. I wanted red meat, Mr Jay, and he didn't give it to me."
This, on his account, would have enabled the PCC to 'have gone into some kind of action with the newspapers in question' and to sharpen and hone their guidance to the press. In the light of the way in which Sir Christopher dealt with Operation Caryatid, it is not obvious what might have been done but, although his letter had held out the prospect of some limited disclosure of material, Mr Thomas was clear in his own mind that his purpose was not to ask the PCC to investigate individual cases. In any event, the PCC was equally clear that they could not look at cases from unidentified victims: this could have been a clue as to the PCC's H quintessentially complaint-handling function.
¶3.18 Sir Christopher's appetite for beef, therefore, was evidently related at least in part to seeing
1016the proof of the message he was being given. Pressed as to whether the PCC could not simply have taken on trust the ICO's indication of the extent of the problem without the underlying data, Sir Christopher's answer was that while of course it could be assumed Mr Thomas would not have made the allegations without some substance, they never saw the substance or the expected litigation.
¶PART H | The Press and Data Protection
¶3.19 Sir Christopher also describes telling Mr Thomas that he was the Information Commissioner
and should "get on with it. Prosecute these guys", noting that "And prosecutions came around none, ever, in my time, anyway."66 This reaction is echoed in Mr Thomas's own note where he records the PCC as emphasising 'not our role to enforce law, not arm of ICO'.67
¶3.20 The refusal of the PCC to take any action while criminal proceedings were pending or possible
was also made plain;68 this was a position which Mr Thomas on his part made very clear he did not accept, but from which the PCC refused to move. The message from Sir Christopher, in other words, was that the Motorman evidence was ICO business rather than for the PCC; they were prepared to help as far as they could, but needed more to go on.69
¶3.21 The reaction (that the PCC wanted details of the underlying data and decisive action from the
ICO before it could act) continued to set the tone and might be viewed as an early warning of the extent to which the PCC was either unwilling or unable to deliver what Mr Thomas hoped to achieve. It might (but did not) cause a reconsideration of his investment in the twin-track strategy of approaching the PCC and the government, but without at the same time attending closely to the operational response itself.
¶3.22 A year passed with little progress. Mr Thomas described the joint effort to produce a
guidance note as seeming to "sort of grind to a halt in April of 2004".70 He wrote to the PCC on 8 December of that year expressing concern that the work had 'run into the sand',71 and that there was consequently a real risk that the problematic practices would continue unabated. This comment is particularly significant because if the ICO apprehended that there was a real risk of continuing unlawful conduct after the Motorman seizure there was again no indication that this was the subject of any reassessment, either of the PCC strategy itself or of the operational response and options within the ICO. A whole year had elapsed since the first approach to the PCC, two years since the seizure of the Motorman material. These were potentially very serious matters, and the PCC strategy had yet to bear any fruit. Mr Thomas explained that he did not 'lose all faith'.72 In the circumstances, the basis of that faith and his continued reliance on it are increasingly hard to understand.
¶3.23 Both sides appear to have thought that the matter had become bogged down in legal details,
including over the matter of the effect of the public interest exemption in s55 of the DPA in relation to actual or potential criminal liability of journalists. Mr Thomas put it to the PCC
¶H in his letter that he was strongly of the view that inaction on their part would show the
1017'principles of self-regulation in a poor light'.73 If his intention was to suggest either that the PCC risked its own credibility politically, or that the industry risked direct regulatory action from the ICO, there is no evidence that Mr Thomas had any particular basis for making such a suggestion.
¶Chapter 2 | Operation Motorman
¶3.24 On 15 December 2004, Sir Christopher replied74 indicating that he was going to "resurrect"
the project with a view to approving a note the following February. He made it clear, however, that the key objective of the note from the point of view of the PCC was to assist journalists in understanding how to comply with the DPA: that would be 'most welcome'. A very brief was issued ('probably in the spring of 2005')75 but evidently with little impact; it contained no reference to Operation Motorman and no warning to journalists.76
¶3.25 In evidence, Tim Toulmin (then the Director of the PCC) agreed that "there was no attempt
by the PCC in 2005, through its guidance, specifically to warn the press of what they should do in the future by reference to what they might have done in the past."77 His view was that, given that the PCC was 'a complaints body looking at breaches of the code of practice rather than the Data Protection Act', there was some question about whether it should even have issued the note it did, but 'it did want to be helpful'. The PCC had regarded it as 'pretty much outside its remit' and required a specific decision from its board to proceed with the matter at all. Mr Toulmin also agreed with the proposition that the PCC's view was: "Well, there isn't a specific complaint here, therefore our powers aren't engaged and we're only going to take second place to the Information Commissioner, who is the real regulator in this area".78
¶3.26 Mr Toulmin also said:79
"The question was, I think, where the different responsibilities lay. The PCC, as a platform for discussing the behaviour of journalists and so on in another context, which was about the application of the code of practice, was happy also to say, "By the way, Richard Thomas has this campaign about the Data Protection Act and he's right to do so", but beyond that, it was difficult really to know what the PCC could do."
His conclusion was that Mr Thomas should have engaged directly with the industry, the trade bodies or straight to the Code Committee (as being 'more representative of the industry') and not to the PCC at all: it did not have the right remit.80 Throughout this period, however, there was still no evidence that the ICO was either successfully managing the relationship with the PCC towards its stated objectives, or assessing the alternatives.
¶3.27 The next step was the publication by the ICO of What Price Privacy81on 10 May 2006; the ICO
included the PCC in its distribution list. A response (described with conscious understatement by Mr Thomas as "disappointing") came on 31 May in a form acknowledged by Sir Christopher H as a bit "sneering". It was in these terms:82
1018"Thank you for sending me a copy of your report, What Price Privacy? It was an interesting read. I am sending you a copy of our annual report, which we have just published, along with the text of a speech I gave last week in which I refer to your remarks about the PCC.
¶PART H | The Press and Data Protection
I think that, as a next step, it would be helpful if we organised a meeting so that we can explore what more it is that you think the PCC can do. You will appreciate that your call for us to act came rather out of the blue, and we have no material to work with other than what you put into the public domain in your report. Perhaps someone in your office could be in touch ... to arrange a suitable time."
¶3.28 The enclosed speech was largely a celebration of the achievements of the PCC, and
immediately before closing with the claim that '15 years of the PCC has changed the culture of an entire industry', dealt with the ICO in two short paragraphs which strongly suggested that it had reached the limits of the action it was prepared to take:83
"There is one issue not touched on in the Report which merits an observation. Recently, the Information Commissioner, Richard Thomas, wrote to me, as he did to members of the newspaper and magazine industries, about the suborning of people by agencies paid by publications to obtain confidential information. This is something that I have intermittently discussed with Mr. Thomas over the last two years or so. It was as a result of our exchanges that the PCC published last year, in collaboration with the Information Commissioner's office, an advice note to journalists about the Data Protection Act and how it impinged on their profession. "Part of the purpose of the note was to remind journalists that offering money for confidential information, either directly or through third parties, was illegal. Mr. Thomas is clearly concerned that this is a practice which continues. He would like the PCC to do something more about it. I intend to tell him once again that we can and do urge on journalists respect for the law – bribery has no place in journalism. I will go on urging. And I look forward to discussions with Mr. Thomas about what more he thinks the PCC can do about this within the self-regulatory framework. But clearly it would not be viable simply to duplicate the criminal law in the Code of Practice."
¶3.29 This did not prompt a reassessment of the strategy, but, on 13 July, a further meeting
between Mr Thomas and Sir Christopher took place. The ICO note of the meeting84 identified as key issues the PCC response to What Price Privacy?, support so far and next steps, along with 'the respective roles and responsibilities of the PCC and the code of practice committee of editors'. Sir Christopher was reported to have said that 'the PCC is not able to act as a
¶H general regulator. He believes that what is needed is a strong stance from the ICO including
prosecutions. He queried what more the PCC could do.' The ICO considered that the PCC's role was to come up with proposals on raising awareness to help prevent misconduct, and seemed to consider in turn that there was little more that the ICO could be expected to do. Sir Christopher encouraged the ICO "to engage directly with the industry" and Tim Toulmin stressed the need for the PCC to act 'with the consent from industry' in the matter of issuing guidance, and also recommended direct engagement with the industry.
¶3.30 A number of action points were recorded for the meeting. These were:
1019(a) the Code of Practice Committee of Editors was to be engaged by the ICO and the PCC to discuss the possibility of changes to the Code and production of guidance; (b) the PCC was to give thought to the production of question and answer style guidance separate of the Code; (c) the PCC was to continue to condemn the illegal obtaining of confidential personal information by journalists; and
¶Chapter 2 | Operation Motorman
(d) the PCC was to provide the ICO with a formal response to the recommendations in the report.
¶3.31 The disappointment felt by Mr Thomas with the response of the PCC remains keenly felt in his oral testimony.85 He was exasperated with the PCC's line:86
"[…]Coming back all the time: "What do you want us to do? Tell us exactly what to do." My line was: "Well, you are the self-regulators. You're the ones supposed to be working out what is needed to stop the press getting into unacceptable territory. It's not my job to tell you what your job is."
¶3.32 Sir Christopher's account of this meeting also evinced a certain amount of exasperation also:87
"I was sort of repeating the same message like a parrot: where's the beef? For Pete's sake – you know, we can do general exhortation, we can do guidance, we can do this stuff, but if you really want me to home in on miscreants, I must have some evidence of who has been procuring enquiry agents – or hiring enquiry agents to procure information illegally, and he was unwilling to do that."
Asked what he might have meant by saying that the PCC was unable to act as a general regulator, Sir Christopher said this:88
"I think what I had in mind there was a notion that we should in some way take on the work of the Information Commissioner by virtue of being a Press Complaints Commission, and this is what I wanted to reject. The point I always made to Mr Thomas, apart from my insistent demands on beef, was to suggest that we had to work in a complementary way. He did his thing, but there were things that we could do to help him, and I've described them..."
¶3.33 It is not the function of this part of the Report to analyse the response of the PCC on its
own account;89 rightly or wrongly, however, the PCC had unmistakably demonstrated that it was unwilling or unable to take action of a sort which could or should have convinced the ICO that the problems with the culture, practices and ethics of the press evidenced in the Motorman material had been definitively addressed by the industry for the future. It had also demonstrated a challenge back to the ICO to address the situation through the discharge of its own powers and functions, and specifically by direct engagement with the industry. H
¶3.34 The result is that it was evident that the strategy adopted by Mr Thomas (dialogue with
1020the PCC, and distance from both from the operational choices of his office and from direct engagement with the regulated members of the industry) was becoming increasingly unlikely to achieve its aims. Whether Mr Thomas considered himself to be dealing with an ineffective industry regulator, or with a recalcitrant representative body of the industry itself, the onus was clearly firmly on the ICO to reflect further on the direction that it wished to take with the Motorman evidence. No such reconsideration appears to have taken place. Nor is it clear that the ICO explained to the PCC either its position or its operational approach.
¶PART H | The Press and Data Protection
¶3.35 Doubtless in the hope of making progress, in accordance with the action points from the
meeting, Mr Thomas wrote to the Code Committee on 19 July 2006 and a meeting was fixed for 21 September. In the meantime, there was a 'formal response' from the PCC to the effect that the ICO should take up the question of Code amendment directly with the Code Committee and that the PCC would await the outcome of that process before turning its mind back to the issue of guidance90. Mr Thomas later described himself as having been "fobbed off" to the Code Committee by Sir Christopher.91
¶3.36 Notably, the question of a response by the PCC was now 'complicated' by the fact that the
then Department for Constitutional Affairs, had issued a consultation paper (picking up from What Price Privacy?) relating to the introduction of custodial penalties for conviction under s55 of the DPA. In other words, at this point, if not earlier, the strategy around the approach to the PCC became inextricably entwined with the political campaign which was the second limb of the ICO response to the Motorman material. In relation to this campaign, the PCC unambiguously positioned itself not as a regulator of the industry but as a champion of the view opposing any legislative change: it did so by active political lobbying (not least through Guy Black). The twin tracks of Mr Thomas's approach effectively became one. It is to the political campaign that it is now appropriate to turn.