Reports that Matter

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

Publication of Parliamentary Reports in

Section 9 of 140

Publication of Parliamentary Reports in

5.1 In 2006 the then Information Commissioner, Mr Thomas, published two Parliamentary

reports documenting the widespread trade in confidential personal information.40 The report What Price Privacy? The unlawful trade in confidential personal information was published on 13 May 2006 and the follow-up report What Price Privacy Now? was published on 13 December 2006.

What Price Privacy? 5.2 The Parliamentary Report published in May 2006 was not the first occasion on which the

issue of the unlawful trade in personal information had been debated or discussed in public. What Price Privacy? identified three newspaper articles in The Guardian, The Sunday Telegraph and The Times, written in the period between September 2002 and January 2003, which related to the obtaining of confidential information by private detectives and the sale of confidential information from government departments, namely the Inland Revenue, to E outside agencies.41 The report also noted that the House of Commons Select Committee on Culture, Media and Sport had conducted an investigation in early 2003 into privacy and media intrusion and concluded in its reports that "improper and intrusive gathering of data" had appeared in the press and that these methods amounted to a "depressing catalogue of deplorable practices".42

5.3 The first report laid before Parliament claimed to reveal evidence of systematic breaches

of privacy that amounted to an unlawful trade of confidential personal information. The purpose of the report was to put a stop to the trade by proposing the introduction of a custodial sentence for up to two years for persons convicted on indictment, or six months for summary convictions.43

5.4 Section 5 of What Price Privacy? set out the evidence collated by the ICO which illustrated the

market in the unlawful supply of personal data. The report explained that: "documents seized during Operation Motorman and in other investigations have allowed the ICO to build up a clear picture of how the market in unlawful personal data operates. Case details provided evidence of who is buying the information and why, and who is obtaining and supplying the information. We also have some idea of how the suppliers operate and the prices they charge."44 pp81-87, lines 14-18, Professor Baroness O'Neill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Afternoon-Hearing-16-July-2012.pdf; p11, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/07/Witness-Statement-of-Professor-Baroness-ONeil.pdf HC Hansard 27 January 1981, Volume 997, Column 794, ibid pp10-11, para 30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord- Patten1.pdf p23, para 59, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on- media-ownership.pdf Labour Party, The People and the Media p4, para 16, ibid p16, para 5.4, ibid para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DS-Philip-Williams. pdf; paras 22, 23, 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS- Keith-Surtees.pdf http://www.newsint.co.uk/compensationscheme/index.html p59, line 4, William Lewis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon- Hearing-10-January-2012.pdf pp56-57, lines 17-1, Dawn Neesom, ibid p35, lines 25-4, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-29-November-2011.pdf p24 passim, p25, lines 18-23, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Afternoon-Hearing-12-January-2012.pdf p3, para 16, ibid p63, lines 1-10, Richard Desmond, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Afternoon-Hearing-12-January-2012.pdf; p6, para 22, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Richard-Desmond.pdf; pp27-28, lines 1-3, Richard Peppiatt, http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon-Hearing-12-January-2012.pdf p57, lines 7-8, CC Chris Sims, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-20-March-2012.pdf pp17-18, lines 8-21, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-6-March-20122.pdf p42, lines 8-13, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-5-December-2011.pdf http://www.legislation.gov.uk/ukpga/1998/29/section/51 http://www.legislation.gov.uk/ukpga/1998/29/section/51; http://www.legislation.gov.uk/ukpga/1998/29/section/52 pp20-21, lines 8-3, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Afternoon-Hearing-31-January-2012.pdf Blair, T, A Journey, September 2010 p7, para 29, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andy-Coulson. pdf p29, Sir Harold Evans, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon- Hearing-17-May-2012.pdf pp28-29, lines 16-8, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-30-May-2012.pdf Part I Chapters 6 and 5 respectively p38, lines 11-24 and p39, lines 5-12, Lord O'Donnell, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Transcript-of-Morning-Hearing-14-May-2012.pdf Ofcom report 'Measuring Media Plurality, Supplementary Advice' para 6.7 and figure 5 Sugar v British Broadcasting Corporation [2012] UKSC 4 per Lord Phillips (at para 67) "Information should only be found to be held for the purposes of journalism ... if an immediate object of holding the information is to use it for one of those purposes"; Lord Walker (at para. 84) "The question whether information is held for the purposes of journalism should thus be considered in a relatively narrow rather than a relatively wide way"; Lord Brown (at par 106) that "the central question to be asked ... will be ... whether there remains any sufficiently direct link between the BBC's continuing holding of the information and the achievement of its journalistic purposes". See also para 6.4 of the Annex of Legal Framework Such as those that surround the need to make a single award shared between multiple victims: see R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671 per Lord Dyson at para. 167. Assessment is not without difficulties where there is more than one tortfeasor: see Gatley on Libel and Slander, 10th edn, para 9.25 p34, para 62, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf Section 6 pp15-16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/First-Submission-by-Sir-Louis-Blom- Cooper-QC.pdf pp93-94, lines 22-4, ibid I have been particularly interested in the informal advice of the relevant expert Assessors in framing and drafting the detail of the recommendations set out in this Chapter. All the relevant Assessors have clearly advised that the system I am recommending, organised by the industry to objective standards, delivers the independent regulation which is essential; it safeguards press freedoms, will not chill investigative journalism that is in the public interest, and can command public confidence. It is their unanimous advice that it is in the interests of both the industry and the Government to accept and implement the recommendations to that end. For completeness, I have recorded one point of detail, relating to how an industry body is recognised, on which Shami Chakrabarti gave me different advice: see para 6.23 and footnote 56. As for the matters addressed in the next Chapter, two of the Assessors (Elinor Goodman and George Jones) advised that it was not necessary for me to make a recommendation about what to do in the event of the press not accepting the preferred option as they believe that independent self-regulation is the best solution and that, if the industry considers it carefully, it too will agree. I also record that Shami Chakrabarti advised against the contemplation of any element of compulsory backstop standards regulation of the press in the event of the inability or unwillingness of the press to implement the recommendations in this Chapter; she would prefer in that event to see a strengthening of the financial assistance available to those who feel their rights have been abused by the press in order to help them defend those rights in court. K Part F, Chapter 6, para 2.74 At paras 22-23

5.5 The report analysed the information seized at Mr Whittamore's premises as falling into two

categories of documentation. The primary documentation consisted of correspondence (reports, invoices, settlements of bills) between Mr Whittamore and many national newspapers and magazines, identifying the individual journalist seeking the information. The

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secondary documentation consisted of the detective's own handwritten personal notes and a record of work carried out, about whom and for whom.

5.6 In relation to methods, the report set out that there were two principal methods of obtaining

information: corruption and deception.45 Corrupt practices included paying employees of organisations, for example the DVLA, to access information available to them by virtue of their position, whilst deceptive practices included impersonating either the data subject or a third party (for example an employee of the same organisation) to obtain the information.46

5.7 The report also identified in broad terms a number of individuals who had been interviewed

as part of the investigation, including celebrities, professional footballers and managers, broadcasters, a member of the Royal Household and also figures of less obvious public interest, including the sister of a partner of a local politician. The report set out the example of a mother whose show-business daughter had featured in a number of press stories. Details of the mother's telephone calls and cars owned appeared in Mr Whittamore's ledgers and records of financial transactions. Further, a number of those interviewed reported media intrusion after personal information had been passed to the press and all were confident that they had not willingly supplied the information nor consented to its release.47

E 5.8 Another aspect of the transactions that was analysed in the report was the issue of cost; that

is to say how much the ultimate customers were charged for personal information and how much of this was profit once the agent sourcing the information had been paid. The prices charged to journalists ranged from £17.50 for finding an address for a person on the electoral roll, to about £70 to search for an ex-directory number, and up to £500 for a criminal record check and £750 to obtain mobile account details.48 It seems likely that the figures reflected the mode of obtaining the information sought, in particular where other parties, for example blaggers, or employees, required payment for their role in the provision of the information.

5.9 The total sum paid by newspapers for the items of information supplied in Operation

Motorman is estimated to be between £300,435 and £547,160.49 This gives an indication that the supply of personal information was, for those involved, a lucrative business.

5.10 In the conclusion of the report, the ICO made a number of extremely pertinent observations:

"At a time when senior members of the press were publicly congratulating themselves for having raised journalistic standards across the industry, many newspapers were continuing to subscribe to an undercover economy devoted to obtaining a wealth of personal information forbidden to them by law. One remarkable fact is how well documented this underworld turned out to be".50 ...."The law relating to this offence is perfectly clear... it is framed in a way that applies to those who request the disclosure of personal data and those who supply it, including any intermediaries in the chain. The problem lies in the inadequacy of the penalties which the courts are able to impose".51

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Chapter 3 | Operation Motorman

5.11 The ICO sought custodial sentences in relation to the commission of offences under s55 DPA

in order to deter this unlawful trade in information. The ways in which the ICO sought to achieve that end are dealt with in Part H of the Report.

What Price Privacy Now? 5.12 The Parliamentary Report What Price Privacy Now? was published to chart the progress in the

six months following the first report and to set out the responses to the recommendations set out in the first report.

5.13 The report noted that a Freedom of Information Act request for further information about

the 305 journalists identified in the Motorman material and referred to in What Price Privacy? had been considered and, on the basis that disclosure of the information was in the public interest, the employers of the journalists were set out in tabular form.

5.14 This table is replicated below.52

Table E3.1

No. of Transactions No. of Journalists or E Publication positively identified Clients using services

  • Daily Mail 952 — 58

  • Sunday People 802 — 50

  • Daily Mirror 681 — 45

  • Mail on Sunday 266 — 33

  • News of the World 228 — 23

  • Sunday Mirror 143 — 25

  • Best Magazine 134 — 20

  • Evening Standard 130 — 1

  • The Observer 103 — 4

  • Daily Sport 62 — 4

  • The People 37 — 19

  • Daily Express 36 — 7

  • Weekend Magazine (Daily Mail)30 P6, p53 and p67 respectively, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf pp63-64, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Afternoon- Hearing-9-July-2012.pdf p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Baroness- ONeil.pdf http://www.newscorp.com/management/newsint.html ibid p15, para 41, ibid O'Malley, T and C Soley, Op cit, p69 p61, lines 19-22, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript- of-Morning-Hearing-7-February-2012.pdf Regulation 27 of the Road Vehicles (Registration and Licensing Regulations) 2002 p13, para 18, ibid http://www.independent.co.ui/news/uk/crime/former-times-reporter-patrick-foster-held-over-hacking-8092900.html http://news.bbc.co.uk/1/hi/uk_politics/7233560.stm pp73-75, lines 16-18, Anne Diamond, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-28-November-20111.pdf p52, lines 2-8, Matt Driscoll, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-19-December-2011.pdf p20, line 6, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon- Hearing-12-January-2012.pdf Rowling v Scottish Mail on Sunday, PCC Report 77 pp112-113, lines 22-15, Tina Weaver, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-16-January-2012.pdf; pp107-108, lines 9-19, Hugh Whittow, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf; p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Adrian-Faber.pdf pp7-8, lines 12-5, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript- of-Morning-Hearing-5-March-2012.pdf; p6, para 15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Witness-Statement-of-Sir-Paul-Stephenson2.pdf pp95-96, lines 21-1, Justin Penrose, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-20-March-2012.pdf pp4-6, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief- Constable-Mike-Cunningham.pdf pp23-26, Richard Thomas, ibid p47, lines 3-13, Richard Thomas, ibid http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/News-International-Addendum-to-Privacy-Law- Submission.pdf p23, lines 18-20, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-26-January-2012.pdf p77, lines 2-9, Andrew Grice, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-25-June-20121.pdf pp61-64, in particular, p64, lines 11-15, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/04/Transcript-of-Morning-Hearing-25-April-2012.pdf p110, lines 17-21, David Cameron, ibid http://www.legislation.gov.uk/ukpga/1973/41 pp7-8, lines 22-9, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-30-May-2012.pdf pp98-101, lines 9-14, ibid Exactly the same has been vigorously argued by the press in relation to certain celebrities p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Harriet-Harman-QC-MP-on- behalf-of-the-Labour-Party1.pdf [1992] 14 EHRR 123 For example, Thompson v Commissioner of Police for the Metropolis [1998] QB 513 which concerned false imprisonment and malicious prosecution but applies equally to damages for defamation which were extensively discussed pp15-16, lines 17-13, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-15-May-2012.pdf Part J, chapter 2 p4, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-B1.pdf p43, lines 7-11, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- Hearing-9-July-2012.pdf K pp95, lines 9-11, Ed Richards and Colette Bowe, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-12-July-2012.pdf pp58-59, lines 24-7, Professor John Horgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-13-July-20121.pdf K p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-Harriet-Harman-QC-MP-on- behalf-of-the-Labour-Party1.pdf Part K, Chapter 7, para 6.10 Application 29183/95, Fressoz & Roire v France (2001) 31 EHRR 2; Application 69698/01, Stoll v Switzerland (2008) 47 EHRR 59 at para 103 — 4

  • Sunday Express 29 — 8

  • The Sun 24 — 4

  • Closer Magazine 22 — 5

  • Sunday Sport 15 — 1

  • Night and Day (Mail on Sunday)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 — 2

  • Sunday Business News 8 — 1

  • Daily Record 7 — 2

  • Saturday (Express)7 http://www.levesoninquiry.org.uk/people/assessors/elinor-goodman/ The obligation ceases, as far as I am concerned, when I sign the Report and, so far as everyone else is concerned, when the Report is published: see para. 14(3) and (4) of the Inquiry Rules 2006 http://hansard.millbanksystems.com/commons/1974/may/02/royal-commission-on-the-press p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Susan-Mendus.pdf p24, lines 15-18, Professor Jennifer Hornsby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf ibid http://www.newscorp.com/news/news_535.html p1, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Mark-Thompson. pdf p1, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/10/Submission-from-Professor-Steven- Barnett-on-plurality.pdf "whereas [w]e have deemed it expedient that a Commission should forthwith issue with the object of furthering the free expression of opinion through the Press and the greatest practicable accuracy in the presentation of news, to inquire into the control, management and ownership of the newspaper and periodical Press and the news agencies, including the financial structure and the monopolistic tendencies in control, and to make recommendations thereon", ibid, piii Part J Chapter 3 pp79-80, lines 24-9, DCI Middleton, ibid, Operation Glade is considered in detail at Part E, Chapter 2 p52, line 11, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of-Morning- Hearing-1-March-2012.pdf p11, lines 6-10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of-Morning-Hearing-6- February-2012.pdf p8, para 33 and pp12-13, paras 52-54, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness- Statement-of-Dominic-Mohan.pdf Part F, Chapter 5 p32, lines 12-22, Rupert Murdoch, ibid pp12-13, lines 23-10, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-November-2011.pdf pp19-20, lines 20-11, ibid p6, para 22, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Richard- Desmond.pdf pp8-9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Commissioner- Bernard-Hogan-Howe1.pdf p4, para 12, ibid pp16-17, lines 23-18, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-1-March-2012.pdf Part G Chapter 3 p53, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon- Hearing-9-December-2011.pdf p49, lines 11-21, Francis Aldhouse, ibid p7, para 4.5, Alexander Owens, ibid pp8, lines 13-19, Christopher Graham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-26-January-2012.pdf p9, para 3.10, ibid pp22-23, lines 2-8, John Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-17-January-2012.pdf Part H, Chapter 5, paras 2.94-2.95 p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-David-Mellor.pdf p54, lines 1-7, Rupert Murdoch, ibid p5, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David-Cameron- MP.pdf p8, ibid p2, lines 7-17, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf pp80-83, lines 16-3, ibid p53, lines 3-14, ibid p3, para 12, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/JH-Witness-statment- MOD300005597.pdf s8 et seq of the Police and Criminal Evidence Act 1984 (PACE) p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Submission-by-Trans-Media-Watch.pdf PCC code, http://www.pcc.org.uk/cop/practice.html p13, paras 1-2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf pp8-9, lines 3-3, Lord Black, ibid p14, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy- K Greenslade-of-City-University.pdf pp55-56, lines 23-18, Professor John Horgan, ibid Part K, Chapter 3 http://www.pcc.org.uk/complaints/makingacomplaint.html Part F, Chapter 6, para 8.22 Part K, Chapter 7, para 4.21 [2008] UKHL 15 at para 27 — 1

  • Sunday Mirror Magazine 6 — 1

  • Real Magazine 4 — 1

268

No. of Transactions No. of Journalists or Publication positively identified Clients using services

  • Woman's Own 4 — 2

  • The Sunday Times 4 — 1

  • Daily Mirror Magazine 3 — 2

  • Mail in Ireland 3 — 1

  • Daily Star 2 — 4

  • The Times 2 — 1

  • Marie Claire 2 — 1

  • Personal Magazine 1 — 1

  • Sunday World 1 — 1

5.15 The table sets out a breakdown of the extent to which individual newspapers and magazines

were implicated in the evidence produced by Operation Motorman and, in particular, the number of journalists employed by each newspaper or magazine which was identified as having requested the supply of personal information.

E 5.16 It is worth underlining the view of the Information Commissioner, as set out in the text of What

Price Privacy Now?, that the figures in the table do not purport to set out the total number of offences committed by journalists, but rather the number of requests made by journalists for information. In his evidence to the Inquiry, Mr Thomas emphasised that it was not being said that every single transaction identified was an offence committed by a journalist, but rather that journalists were significant customers of information which appeared to have been obtained illegally.53 However, Mr Thomas also expressed the view that it was likely that journalists were committing an offence.54

5.17 Two overriding observations can be made in relation to these figures. First, whilst the

journalists engaged in buying personal information supplied through a private investigator were employed by a range of titles, including tabloid newspapers, broadsheet newspapers and magazines, there is significant variation in the extent to which journalists and titles engaged in the purchase of personal information from Mr Whittamore. For example,58 p3, para 2.7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Thomas- Mockridge.pdf Alan Rusbridger has talked at length about these principles which are applied at the Guardian News Media titles (see Part C, Chapter 2 above) A(3)). A "newspaper" is a daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the UK or in a part of the UK (Section 44(10)) http://www.guardian.co.uk/media/greenslade/2011/oct/18/local-newspapers-mediabusiness Shannon, R, A Press Free and Responsible, p74. p31, lines 11-24, Lord Black, ibid pp89-90, lines 22-5, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf p33, lines 10-16, ibid p3, lines 9-21, DAC Sue Akers, ibid p18, para 31.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-William- Lewis.pdf pp2-3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Sienna-Miller.pdf p2, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf pp87-88, lines 12-9, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-14-December-2011.pdf pp65-66, lines 22-5, Hugh Grant, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-21-November-2011.pdf p6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Professor-Baroness- ONeil.pdf p26, lines 8-22, Amanda Hirst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-27-March-2012.pdf p53, lines 13-18, Chief Constable Peter Vaughan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Afternoon-Hearing-21-March-2012.pdf p3, lines 3-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-9-December-2011.pdf pp11-14, paras 4.17-5.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of- Alexander-Owens1.pdf The Law Society & Ors v Kordowski [2011] EWHC 3185 (QB), paras 100-101, where the equivalent point is made about the first data protection principle and civil torts ibid p9, para 26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Tony-Blair1.pdf pp6-7, para 8.4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-George- Osborne-MP.pdf http://news.bbc.co.uk/onthisday/hi/dates/stories/september/24/newsid_2529000/2529115.stm p68, ibid, it is not clear whether the "strongly argued views to the contrary" is a reference to the Enders report which had arrived that day or to the numerous letters from MPs (on behalf of constituents ) and members of the public which had by then been received: p73, paras 2-3, ibid p67, lines 14-22, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-13-June-2012.pdf pp91-92, lines 1-11, Ed Richards, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-1-February-2012.pdf p5, para 15. ibid Chapter 5 paragraph 4.5 p81, lines 2-9, Professor John Horgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript- of-Morning-Hearing-13-July-20121.pdf See Part K, Chapter 7 Part H, Chapter 6, para 4.9 Re an Inquiry under the Company Securities (Insider Dealing) Act 1985 [1988] AC 660 at 703 journalists from the Daily Mail sought the supply of personal information on 952 occasions, whereas by contrast one journalist from The Sunday Times sought the supply of personal information on four occasions. Second, the numbers of individual journalists engaged in purchasing personal information from particular titles is higher than could be put down to certain individuals undertaking investigations which might or might not have been known about or authorised. Where dozens, or in some cases, over 50 journalists at a particular title have sought to purchase personal information, the inference that these practices were endemic within particular titles may be readily understood.

  1. Conclusions

6.1 For the purposes of responding to a request by Lord Ashcroft under the Freedom of Information

Act 2000, ICO investigation officers and an in-house lawyer analysed the source material collated as part of Operation Motorman. They documented some 13,343 transactions, or individual requests for information made of Mr Whittamore. These transactions were

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segregated by staff of the ICO into three separate categories in terms of their evidential value.55 Of these, the ICO took the view that some 5,025 were actively investigated as part of Operation Motorman and positively known to constitute a breach of the DPA. More specifically, and put somewhat more carefully, it was the view of a lawyer employed by the ICO with extensive involvement in the prosecutions that the evidence in these cases would have been sufficient to lead to conviction.56 A number of the requests in this category included PNC requests, friends and family requests and some ex-directory requests.57

6.2 A further 6,330 requests represented occupancy searches and are thought to have been

information obtained from telephone service providers. The ICO considered that the obtaining of this information was likely to amount to breaches of the DPA; however, the nature of the transactions was not sufficiently known or understood for these to be characterised as a positive breach of the DPA, rather than probably illicit transactions.58 Some 1,988 of the transactions were considered to lack sufficient identification or understanding of how the information had been obtained to determine whether they represented illicit transactions. The first category of transactions only was included with the Parliamentary Reports.59

6.3 Overall, it is not surprising that the Core Participants made the concessions recorded under

paragraph 3.3 above: a detailed examination of many individual examples would, in my judgment, undeniably have established that this was the very lowest at which it could be put. E For reasons which I well understand, the ICO would argue that the concession does not go far enough. Without condemning any journalist (none of whom were ever even interviewed by the ICO), it is sufficient for me to conclude that, at least in part, what has been revealed by some of the Operation Motorman evidence demonstrates an attitude to compliance with the law relating to data protection which can only be described as cavalier, if not worse: it is certainly revealing of what, at that time at least, were the practices of parts of the press. As will become apparent, the extent to which Mr Whittamore's services continued to be used by some titles after his conviction is even more revealing.

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Chapter 4 phone haCking: the expanding impaCt of operation Caryatid

  1. Introduction

1.1 This Inquiry was ultimately directed because of the wide scale public revulsion at the

reported conduct of one or more journalists from the News of the World (NoTW) in intercepting messages left on the mobile telephone of Milly Dowler: this type of interception has been referred to colloquially as phone hacking. Having said that, however, there was also increasing public concern about the apparent lack of appropriate investigation by the Metropolitan Police Service (MPS) into the conduct of a private investigator, Glenn Mulcaire, and the extent of the involvement of the NoTW (precipitated by increasing disclosure arising out of civil litigation). The consequence (prior to the disclosures about Milly Dowler) was that the then Acting Commissioner, Tim Godwin, had re-opened the investigation into the NoTW

E which had started in 2006; substantial resources were devoted to it. Not the least important

reason for this concern was the increasingly vocal allegation that the relationship between senior executives at the NoTW and senior officers at the MPS had influenced or affected the direction of the investigation; the allegation itself had the potential to cause serious damage to the reputation of the police generally.

1.2 It is therefore not surprising that the Terms of Reference for Part 1 of the Inquiry specifically

require it to consider the culture, practices and ethics of the press including contacts with, and the relationship between, the press and the police along with the conduct of each. They also require recommendations as to how future concerns about press behaviour should be dealt with by all the relevant authorities, including the police, the prosecuting and regulatory authorities and Parliament.

1.3 This part of the Report, therefore deals with a wide range of issues including, in relation to

Operation Caryatid:

(a) whether the nature of the relationship between the police and the media explains why the police did not pursue journalists other than Clive Goodman in 2006 and why the investigation was not re-opened following expressed concerns in 2009 and 2010; (b) the nature and extent of any relationship between News International (NI) and senior officers who were or became involved in this operation and the extent (if at all) to which any relationship influenced directly or indirectly the way in which operational decisions were approached; (c) in the event that investigating officers or those with an operational role in connection with the investigation did not themselves have any relevant relationship, whether knowledge or understanding of the existence of such a relationship between NI and their superiors was taken into account when they approached decisions; and; (d) in order to make recommendations as to the future, the approach and response to the investigation of the Crown Prosecution Service (CPS) and the prosecuting authorities more generally.

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1.4 On the other side of the same investigation, it is also necessary to consider (as part of the

culture, practices and ethics of the press) the response to the police investigation of NI, the Press Complaints Commission (PCC), and the Culture, Media and Sports Committee and the Home Affairs Committee of the House of Commons. The part played by the PCC also deserves detailed consideration in the context of a consideration of the effectiveness of any new regulatory regime.

1.5 Given the pivotal role that Operation Caryatid has played in the background that has given

rise to this Inquiry and the focus, in part, on criticisms of the MPS for what is perceived to be its failure properly to investigate what emerged from this investigation, it is necessary to set out precisely what happened in some detail, evaluating decisions that were made as they were made and in the light of the prevailing circumstances. That is because I must address the allegation that the MPS deliberately held back on a full investigation (and further investigation in 2009 and 2010) because of a link with NI. In my ruling of 4 May 2012 in relation to the operation of rule 13 of the Inquiry Rules 2006 to the MPS, I said1:

"If not because of the influence of the press, why did the police not go further with Operation Caryatid or investigate the Mulcaire notebook in more detail (particularly as a number of officers were concerned that it more than justified further examination)? Why was it that the articles in The Guardian and the New York Times were so quickly E dismissed without further investigation being undertaken? In my judgment, answering those questions would be a critical part of the exercise both to assuage the legitimate public concern that caused the conduct of the police to be included in the Inquiry in the first place but also to justify any conclusions that I reach as to future conduct of the relationship between press and police".

1.6 I concluded that answering these questions could give rise to criticism and I decided to

approach the MPS, individual police officers, the CPS and counsel on that basis. Given that the statements of a number of police officers used for the Inquiry were those prepared for other proceedings, therefore, it is not surprising that, in response to notices under rule 13, additional material has been forthcoming. I have dealt with it in the Report and directed that additional statements, establishing the facts put before me, should be provided and treated as part of the evidence of the Inquiry. Where new issues have arisen, I have identified them but, in fairness, declined to determine any such issue adverse to any individual: to do otherwise would have been to require further rule 13 notices if not further oral hearings.

The complaint 1.7 In December 2005, the Royal Household reported to the Royalty Protection Department of

the MPS that it was concerned that the voicemail messages of Jamie Lowther-Pinkerton and Helen Asprey, respectively the private and personal secretaries to Princes William and Harry, were the subject of unlawful interception. Information had been appearing in the press, in particular in the column of Clive Goodman, the Royal editor at the NoTW, which suggested knowledge of the content of voicemail messages left on their mobile phones.

1.8 The Head of the Royalty Protection Department, Commander Loughborough, approached

Deputy Assistant Commissioner (Specialist Operations) Peter Clarke (now retired) who was the head of the anti-terrorism branch of the MPS (then known as SO13). Given the potential threat to the safety of members of the Royal Family and the sensitivities surrounding them, Mr Clarke decided that SO13 would investigate the matter and would do so covertly (in

1 para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Application-of-Rule-13-of-the-Inquiry- Rules-in-relation-to-the-MPS-4-May-2012.pdf

272

order to avoid alerting potential suspects).2 Mr Clarke sought to safeguard the secrecy of the investigation by ensuring only very few officers were aware of it. He explained that the need for operational security was one of the factors that weighed in his mind when deciding to keep the investigation within SO13,3 where the investigators were developed vetted.

1.9 Given the code name Operation Caryatid, Mr Clarke had ultimate operational oversight of

the investigation. He set its parameters and strategy4 and was answerable to the Assistant Commissioner (Specialist Operations), Andy Hayman. Mr Hayman has described himself as accountable for the investigation but not responsible for day-to-day decision-making,5 nor personally involved in formulating strategy.6 He received briefings from Mr Clarke.7 The Deputy Commissioner, at the time, Sir Paul Stephenson, played no apparent role in any relevant events in 2005/2006. The then Commissioner, Lord Blair, said that his knowledge of the entire investigation was "… limited to short briefings imparted in a few minutes on very few occasions …"8 http://www.levesoninquiry.org.uk/people/assessors/george-jones/ Writing in the Observer on 2 September 2012 (http://www.guardian.co.uk/media/2012/sep/02/simon-fox-trinity- music-man-record?INTCMP=SRCH) , Peter Preston said that I was "spraying" a "confidential" 118-page letter of early criticisms around Fleet Street which had been described as a "diatribe", a "completely one-sided" attack that resembles "loading a gun" and "excoriating". He suggested that my disappointment that my comments were being openly discussed in the press was an indication that "he still doesn't quite get it" so that he suffers "just 'disappointment' if it doesn't leak instantly". It might also simply demonstrate that not enough care has been taken to understand the process and to comply with sensible obligations specifically designed to be fair to all in Part D Chapter 1 p151, para 7.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-from-the-New-Zealand- Law-Commission-Full-Report.pdf p17, lines 13-24, Professor Hornsby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-16-July-2012.pdf, quoted at [x ] above ibid http://www.newscorp.com/corp_gov/MSC.html http://downloads.bbc.co.uk/bbctrust/assets/files/pdf/about/how_we_govern/agreement.pdf p12, para 3.11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-Measuring- Media-Plurality1.pdf ibid, pp4-5 A full list of those publications subscribing to the press self-regulatory system may be found at http://www. levesoninquiry.org.uk/wp-content/uploads/2012/01/Exhibit-SA-S1.pdf Discussed at length in Part E, Chapter 3 p5, para 3.9, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alexander- Owens1.pdf p24, para 58, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair.pdf approximately 11,000 pages covering the period January 2001-August 2006: p11, para 32(i), http://www. levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DAC-Sue-Akers.pdf pp54-55, lines 24-7, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-9-January-2012.pdf See the evidence of Charlotte Church, Sally and Bob Dowler, Mary-Ellen Field, Hugh Grant and Sienna Miller p44, lines 21-21, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-26-April-2012.pdf p13, lines 7-8, Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-21-November-2011.pdf p12, para 26 & 27, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Charlotte- Church.pdf; pp21-22, lines 6-16, Charlotte Church, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-28-November-20111.pdf p60, lines 4-14, Dawn Neesom, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-12-January-2012.pdf; pp6-7, paras 17-19, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf; p13, para 58, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/01/Witness-Statement-of-Justin-Walford.pdf; pp4-5, paras 12-14, http://www.levesoninquiry. org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Peter-Wright.pdf pp15-16, lines 24-7, AC Cressida Dick, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-12-March-2012.pdf pp25-26, lines 12-3, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-6-March-20122.pdf p17, lines 5-10, Peter Clarke, ibid Paragraphs 2.18-2.20, Part G Chapter 3 above When questioned by Mr Rhodri Davies QC for NI, Mr Thomas was reluctant to attempt a definitive explanation of s32: p75, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon- Hearing-9-December-2011.pdf p2, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Francis- Aldhouse.pdf pp44-52, Francis Aldhouse, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-5-December-2011.pdf p44, lines 23-25, Christopher Graham, ibid p13, para 3.20, ibid pp75-81, lines 9-16, 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 2.107 p2, lines 20-24, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of-Alastair- Campbell.pdf p22, lines 13-18, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-11-June-2012.pdf pp1-14, Lord Justice Leveson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-15-May-2012.pdf p28, lines 2-24, Ed Miliband, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-12-June-2012.pdf pp9-10, lines 1-4, ibid p22, para 81, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-Cable- MP.pdf s19 PACE [2005] UKHL 61 at para 31 pp45-46, lines 20-12, Steve Coogan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-22-November-20111.pdf Ofcom's Broadcasting Code, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/Exhibit-OFCOM11.pdf p2, para 3, ibid p9, lines 4-12, Lord Black, ibid p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Max-Mosley.pdf pp66-67, lines 13-4, Professor John Horgan, ibid K Part K, Chapter 4 K p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Appendix-D.pdf Part K, Chapter 3, para 5.10 Part K, Chapter 7, para 4.23 [1990] 1 AC 109 at 183 Lord Blair explained that if those involved had not been members of the Royal Family, for whose security he had ultimate responsibility, he would not have expected to have been informed of the case at all.9

1.10 The Senior Investigating Officer (SIO), Detective Superintendent Philip Williams (now

Detective Chief Superintendent (DCS) Williams),10 was responsible for implementing the E strategy set by Mr Clarke, for the daily conduct of the investigation and for providing him

with regular personal briefings.11 Otherwise, DCS Williams reported to Mr Clarke through his senior officers, DCS Tim White and Commander John McDowell.12 By May 2006, Commander McDowell was succeeded by Commander Loughborough.

1.11 From 18 April 2006, the Investigating Officer (IO) was Detective Chief Inspector Keith Surtees

(now DCS Surtees). His role was to deliver the strategy by deciding and putting into effect the tactics.13 DCS Surtees also personally briefed Mr Clarke14 and undertook the role of SIO when DCS Williams was absent. Towards the end of April 2006, Detective Sergeant Maberly (now a Detective Inspector or DI) was appointed the case officer for Operation Caryatid and worked with Detective Constable Robert Green (now a Detective Sergeant).15 DI Maberly explained

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that his responsibility was to carry out the instructions of the SIO and IO and agreed that his role was "hands on", dealing with the evidence as it came in and progressing the case.16

1.12 As standard practice, DCS Williams and DCS Surtees kept a decision log and prepared written

case reviews. In these contemporaneous documents, the officers recorded key decisions about the case including their thoughts about the investigation, the details of periodic reviews and their requests for advice from the CPS. Neither Mr Hayman nor Mr Clarke read the decision log or case reviews. Mr Clarke explained that he would not have expected to read them but was briefed orally throughout the investigation. Mr Clarke was involved in the overall review of the decisions made and how the investigation was progressing.17

1.13 In contrast with the standard practice adopted elsewhere in this Report, this Chapter refers to

certain documents which are not on the Inquiry website or otherwise in the public domain. They are referred to in general terms only with some parts quoted in order to tell the full story. The reason is that to publish them in full at this time might prejudice criminal investigations and future trials. Although each has been closely examined during the course of the Inquiry, therefore, hyperlinked references to these documents cannot be provided.

  1. The collection of evidence E

The covert phase 2.1 Mr Clarke defined the parameters of Operation Caryatid as follows: to investigate the

unauthorised interception of voicemail messages in the Royal Household; to prosecute those responsible if possible; and to take all necessary steps to prevent this type of abuse of the telephone system in the future.18

2.2 The first step taken by DCS Williams was to establish whether or not a third party had been

accessing the voicemail messages of Mr Lowther-Pinkerton and Ms Asprey without their permission.19 At that stage Vodafone and O2, the respective service providers, maintained that they had not appreciated that it was possible to listen to another person's voicemail messages without their knowledge or permission.20 Indeed at that time none of the service providers admitted to being aware of this capability.21

2.3 The evidence of DCS Williams was that it was only due to the tenacity of DI Kevin Southworth

(now Detective Superintendent Southworth) who worked with Vodafone and their engineers that the police discovered how mobile phone voicemail systems worked. It was the case, apparently, that the service providers had limited ability to establish precisely what was

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happening within any given voicemail system.22 They could not, for instance, determine whether a voicemail message (whether new or old) existed within a voicemail box at any particular time.23 Although it was possible to identify outside or potential "rogue" numbers dialling into a person's voicemail box, the available software could not identify whether or not the "rogue" number had listened to any messages.24 They also could not assist with how often the illegal access was taking place or how widespread it was.25

2.4 By 30 January 2006, with the assistance of Vodafone's engineers, the police had established

that a number of outside or potential "rogue" numbers had been calling in to Mr Lowther- Pinkerton's voicemail box, using his unique voicemail access number.26 One of those "rogue" numbers was traced to Mr Goodman's home address.27

2.5 DCS Williams immediately recognised the possible implications of this apparent vulnerability

in voicemail systems and recorded in the decision log that they could be quite far reaching among the mobile phone service providers.28 It is appropriate to note that he was: "at pains to ensure that no one company was singled out as being particularly at risk/fault because to an extent, we only knew what we knew from those companies who had software that could give an indication of potential interception."29

E 2.6 Despite acknowledging how widespread the practice was likely to be, DCS Williams maintained

the focus of the investigation on the Royal Household (not least because the enquiry was still in its early stages) with a view to establishing whether what the police had discovered was a one-off set of occurrences or something more systematic.30

2.7 The police therefore obtained Mr Goodman's telephone records (or "outgoing call data") in order to ascertain whom he was calling.31

2.8 On 9 March 2006 there was a case review meeting involving Mr Clarke, DCS Williams, DCS

White and DCI Paul Greenwood. It was decided at that meeting that the lines of enquiry would remain focussed predominantly on Mr Lowther-Pinkerton's voicemail box and the link to Mr Goodman. As regards Mr Goodman, the investigation was to focus on establishing whether or not he was attempting to access other voicemail accounts and whether or not his actions were limited to the Royal Household.32

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2.9 On 4 April 2006 DCS Williams prepared a written review of the case.33 He recorded that

following an analysis of the outgoing call data from Mr Goodman's home phone number, five to six potential victims, all within the Royal Household, had been identified. The police had ascertained that Mr Goodman had been making a significant number of phone calls to Mr Lowther-Pinkerton and these other members of the Royal Household over a sustained period of time. In the review, DCS Williams indicated that guidance would be sought from the CPS in relation to the two main offences that he had identified as arising from Mr Goodman's actions.34

2.10 The first of the two offences about which the police sought advice was unauthorised access to

computer material contrary to s1 of the Computer Misuse Act 1990 (CMA); this is a summary only offence attracting a maximum six months' imprisonment. The second offence was interception of a telecommunication system contrary to s1 of the Regulation of Investigatory Powers Act 2000 (RIPA), an indictable offence attracting a maximum two years' imprisonment. S1(1)(b) of RIPA makes it a criminal offence for a person "intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a public telecommunication system".

2.11 DCS Williams also set out in the review his understanding that the s1 of RIPA offence would not

be committed unless the interception took place before the intended recipient had listened E to the message. This has been referred to during the Inquiry by reference to the analogy of an "unopened envelope" and as the "narrow interpretation" (the "wide interpretation", in contrast, being that the timing of the interception would be immaterial to the commission of the offence so that it would not matter whether or not the intended recipient or anyone else entitled to access the voicemail system had done so). He noted that the practice of voicemail interception:

"... was highly unlikely to be limited to Goodman alone and is probably quite widespread amongst those who would be interested in such access – a much wider security issue within the UK and potentially worldwide".

2.12 This case review also demonstrated that, at this early stage, DCS Williams was concerned

about the pressure on resources. He recorded that: "taking this inquiry forward will impact on core SO13 operations and the resource implications for a prosecution could be significant." The "resource implications" referred to by DCS Williams in the context of core operations conducted by SO13 need hardly be made explicit. The terrorist threat in 2006 remained at the highest level and must legitimately have been assessed as being at a totally different order of priority to voicemail interception.35 At the same time, however, the need to keep the investigation secret and the need to maintain the confidence of the Royal Family was militating against transferring the investigation out of SO13.

2.13 By 13 April 2006 nine potential victims within the Royal Household had been identified. DCS

Williams decided that only six of them would be notified that they were potential victims. Those six included three members of the Royal Family itself. DCS Williams noted in the decision log of that day that:

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"… extending the circle of knowledge concerning what is still a highly sensitive covert enquiry runs the risk of the nature of the enquiry becoming more publicly known and possibly alerting suspect(s), thereby preventing the opportunity for offenders to be brought to justice and/or other appropriate security and commercial interests to be fully considered once the full facts are known."

2.14 By 18 April 2006 the investigation had reached a turning point: it was capable of moving into

a phase of evidence-gathering for the purposes of a prosecution. DCS Williams recorded in the decision log that he had raised with Mr Clarke, Commander McDowell and DCS White his concern about continuing with the investigation given the pressure on resources:36

"I'm raising to my senior management that if we take this forward to a final prosecution and it gets played out in court, given the fact that we are under huge, huge pressure in terms of our counter-terrorism operations, how is it right that the anti-terrorist branch is dedicated [sic] investigating resources to something that actually is not terrorism? … Equally, there were valid arguments for why we should retain it."

2.15 Mr Clarke decided that the investigation would continue with a view to prosecution and

would continue within SO13.37 DCS Williams therefore asked for and obtained additional investigative resources.38 DCS Williams explained the stage the investigation had reached as

E follows:39

"My parameters remained in terms of keeping the investigation focused on the primary victims supported by an uplift in resourcing to enable the evidential gathering phase to begin in earnest."

2.16 DCS Williams gave evidence that when looking ahead to a potential trial, his principal concerns

were maintaining the confidence of the victims and presenting the case in the clearest and most straightforward way possible. He put it in his the statement (prepared for judicial review proceedings against the MPS40) that:41

"In terms of securing the confidence and willingness for any 'victims' to be willing to give evidence in court my strategy was to try to prove the offences based on technical evidence rather than bringing into a public arena who might have been leaving messages for whom and almost inevitably, what the content of any message might be by way of proof it existed. Equally I wanted to be able to present the case in a clear and concise manner to ensure the best chance of a successful prosecution and thereafter provide the greatest sentencing powers."

2.17 In short, DCS Williams was anxious to ensure that the prosecution could be "ring-fenced"

so as to avoid any member of the Royal Family being placed in the potentially embarrassing position of giving evidence and to avoid the examination of the actual content of any of the intercepted voicemail messages. In other words, he wished to confine the evidence for the prosecution to witness evidence from members of staff within the Royal Household (as opposed to members of the Royal Family) and to technical data relating to the interceptions. It is not correct to interpret the use by DCS Williams of the term "ring-fence" as an intention or attempt to rule out the investigation of other potential victims.

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2.18 On 20 April 2006 DCS Williams and DCS Surtees had a meeting with Carmen Dowd, Head of

Special Crime Division at the CPS.42 Ms Dowd was responsible for the provision of legal advice in relation to the investigation and eventually for prosecution decisions. At the meeting, DCS Williams and DCS Surtees raised the question of how s1 of RIPA should be interpreted. DCS Surtees recalled specifically the use of the analogy of the unopened envelope.43 They also raised the strategic and presentational question of whether the prosecution could be "ring- fenced" in the manner described in the paragraph above.44

2.19 On 25 April 2006, via email, Ms Dowd provided the police with preliminary advice. She

indicated that both the offence under s1 of RIPA and the offence under s1 of CMA were engaged. As for s1 of RIPA, Ms Dowd reserved her position, but gave the provisional indication that the "narrow interpretation" was correct. She put it in this way:45 p11, Professor Baroness O'Neill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness- Statement-of-Professor-Baroness-ONeil.pdf HC Hansard 27 January 1981, Volume 997, Column 806 onwards, ibid ibid p24, para 61, ibid O'Malley, T and C Soley, Op Cit, p82 Shannon, R. (2001) Op. Cit., p38 p5, paras 1.10-1.11, ibid pp74-75 lines 15-2, Lord Macdonald, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-4-April-2012.pdf http://www.newsint.co.uk/compensationscheme/index.html p58, line 21, William Lewis, ibid Part F, Chapter 6 p70, lines 15-21, Paul McMullan, ibid Exhibit PWH3 to the witness statement of Peter Hill (which included circulation figures for the Daily Express between pp52-53, lines 25-16, Garry Flitcroft, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Morning-Hearing-22-November-20111.pdf; pp3-4, para 20-22, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Garry-Flitcroft.pdf pp32-33, lines 15-14, Paul Silva, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-11-January-2012.pdf; p73, lines 9-20, Peter Wright, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-11-January-2012.pdf; p9, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf p15, para 43, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Stevens. pdf p43, lines 19-23, Francis Aldhouse, ibid p72, lines 2-11, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-9-December-2011.pdf Part I, Chapter 5 p93, lines 1-3, Philip Webster, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-25-June-20121.pdf p4, line 18, Tony Blair, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning- Hearing-28-May-2012.pdf; he later referred to the "few people" of the press having "substantial power", p56, line 24, ibid p62, lines 15-22, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-11-June-2012.pdf pp9-10, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-Morning- Hearing-25-April-2012.pdf p3, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-18.pdf pp69-70, lines 11-23, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript- of-Afternoon-Hearing-11-June-2012.pdf pp61-62, lines 22-21, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Coordinating-Committee-for- Media-Reform.pdf pp12-13, paras 3.2-3.3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-submussion-from- MPS.pdf Para 134, http://www.publications.parliament.uk/pa/jt201012/jtselect/jtprivinj/273/273.pdf p47, line 17, p48, line 14, Lord Grade, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Afternoon-Hearing-31-January-2012.pdf p34, para 63, ibid p106, lines 11-15, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-9-July-2012.pdf pp4-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-The-Campaign-for-Press- and-Broadcasting-Freedom.pdf p79, lines 15-21, ibid. p80, lines 3-13, ibid p21, para 28, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf Part K, Chapter 7, para 4.35 Douglas v Hello! Ltd [2001] QB 967 at para 150, per Keene LJ in the CA, approved in A v B (a company) [2002] EWCA Civ 337 at para 11(iii), per Lord Woolf LCJ

"… the offences under Section 1 of RIPA, would as far as I can see only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this. Again, the actual technical evidence would need to be carefully considered before any firm view could be taken about whether the offence is capable of being proved. Unless the evidence is capable of showing all of the details we discussed (length of original message, length of call to recipient's voicemail etc) it is unlikely that we could proceed E with the technical evidence alone."

2.20 Ms Dowd also advised that the prosecution could be "ring-fenced" in order to avoid the need

for a member of the Royal Family to give evidence. Finally, it is correct to point out that in the context of this preliminary advice Ms Dowd did not mention the possibility of charging the inchoate offence of conspiracy under the Criminal Law Act 1977, or the consequences of relying on an agreement to intercept messages which would not require proof of an "unopened envelope".

2.21 There is no sensible basis for suggesting that this provisional legal advice, given by Ms Dowd,

on the interpretation of s1 of RIPA was influenced by any concern about offending NI and I have no doubt that it was not. The fact that her initial view as to the proper interpretation of s1 RIPA may not have been right therefore throws no light on the conduct of the police and the press. However, it is important to consider whether the fact that this initial view was provided goes some way to explaining the apparent restraint shown by the MPS in limiting the scope of the investigation. This preliminary advice certainly led DCS Williams to direct the investigation towards obtaining technical evidence that the suspect was accessing voicemail messages before the intended recipient. In the words of DCS Williams:46

"This was my understanding of the law from the beginning of the enquiry, it was a key question put to the CPS which they confirmed as being correct and thereafter it was central to all our activity in terms of securing best evidence including the use of an expert witness. If at any time the advice had been otherwise I would not have had

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to go the lengths I went to, to both shape the investigation and identify any 'potential victims' of this form of criminality."

2.22 To this extent, therefore, this initial advice did have a causative bearing on the subsequent

course of the police investigation and it will be necessary to consider any continued impact it might have had as time passed. In the light of Ms Dowd's advice, however, the police cannot be criticised for adopting the investigative approach described by DCS Williams. It goes further because it would have been irresponsible to ignore it, the risk being that, unless the allegation of conspiracy was brought into play, they would fall at the first hurdle of any prosecution under s1 of RIPA should the court subsequently conclude that this narrow interpretation was correct without there being evidence that the "envelope" had been unopened when accessed by the accused. Although the CPS had been careful to advise that the CMA was an alternative statutory recourse, if the police wished to keep both legal avenues open in line with CPS advice it was necessary to obtain this specific evidence.

2.23 Simply as a matter of chronology, it is worth noting that, on 25 April 2006, Andy Hayman met

Andy Coulson and Neil Wallis (then Editor and Deputy Editor of NoTW) with Dick Fedorcio. At this stage, there was no evidence in the hands of the police that any NoTW journalist (other than Mr Goodman) was implicated in voicemail interception. All have said that the issue of

E voicemail interception (still in its covert phase) was not discussed on that occasion, and as Mr

Garnham QC was able to develop in argument, an examination of the chronology of decision making within the MPS at this point demonstrates that nothing discussed at that dinner could have resulted in any favour shown to NI.47 In the circumstances, although I understand why it is contended that the contrary cannot be excluded, I am satisfied that the police did nothing to alert the editors as to what was going on: it does, however, serve to underline the importance of care in relation to contacts with any organisation an employee of which is being investigated simply because of the perception that favours could be exchanged.

2.24 The story moves on to 9 May 2006 when DCS Williams recorded in an "Enquiry Update"48 that

the police had discovered another potential suspect, a "Paul Williams" (which transpired to be an alias used by Mr Mulcaire).49 In the course of its own internal enquiry O2 had traced audio recordings of a man calling himself "Paul Williams" phoning O2 customer services and asking for pin numbers for voicemail accounts to be re-set to default settings. He held himself out as an O2 employee who was authorised to have access to customer information and to make such requests. O2 discovered that on two occasions "Paul Williams" asked for Ms Asprey's pin number to be reset to default, and that this had been carried out.

2.25 In the update DCS Williams set out three options to be considered by the senior management.

Option one was that there be no further investigation with the intention of prosecution. Option two was to hand over the investigation to another police unit; option three was to commence a formal investigation to prosecute those intercepting the Royal Household voicemail messages and "in tandem with the above establish whether or not there are evidential links to the potentially wider unauthorised intrusion/access suspected by O2". He recommended the third option over the short-term, and provided a very perceptive rationale in this way:

"… we have discovered a vulnerability that exists within the mobile telephone industry whereby unscrupulous people could intrude upon the privacy of the vast majority of

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the public through unauthorised access to voicemail. I suspect that the media world may well be aware of this vulnerability and there may well be a host of people using this vulnerability for journalistic purposes. The Goodman connection is potentially an example of this, but the more sinister side would be that the knowledge could equally be utilised by criminals whether that be in the general sense, for terrorism or to threaten national security. Therefore I believe that this matter has a significant public interest aspect to it particularly in terms of safety and security and risk to life."

2.26 DCS Williams recorded at the end of the update that its contents had been briefed to DCS

White and Commander Loughborough and that he had been advised that the enquiry would remain within SO13 for the time being. In line with the preliminary advice from the CPS, he then set about deciding how best to prove the interception of voicemail messages before they had been heard by the intended recipient. DCS Williams decided to mount what he termed a "sting operation" (although this is a misnomer because the operation did not involve deception) which amounted to allocating a test period over around three weeks in May and June 2006 during which the relevant activity on the mobile phones of Mr Lowther-Pinkerton and Ms Asprey would be monitored.50

2.27 With DCS Williams working abroad between 12 May and 5 June 2006, DCS Surtees oversaw

this aspect of the operation the aim of which was to prove who was accessing messages E and to obtain evidence to establish that after a voicemail message had been left, the same message was illicitly accessed before it was heard by the intended recipient.51 During this test, Mr Lowther-Pinkerton and Ms Asprey were asked to retrieve their voicemail messages only at set times twice in every 24 hour period. Where either came across a message that was marked as an old message, but which he or she had not previously listened to, this prompted further investigation.52

2.28 Part of the strategy for the operation was to ascertain whether the service providers had the

software capability to detect both the fact that a message had been left and the retrieval of unheard messages by one of the rogue numbers.53 It transpired that it was only through Vodafone's "Vampire" data that the police could definitively prove the sequence of person A leaving a message on person B's voicemail and person C dialling in and retrieving the message.54 DI Maberly explained that "Vampire" data was an engineering or diagnostic tool used by Vodafone to monitor how its systems were running, including its voicemail systems. In the process of monitoring the systems, it captured data relating to customers' accounts, including when a voicemail message was left and when it was opened. However, this data was not retained for very long and so Vodafone needed to "harvest it" on a regular basis.55 DI Maberly had the impression that it would only exist for a matter of days or maybe a couple of weeks.56

2.29 Where "Vampire" data was not available, the fact that a voicemail message had been accessed

had to be deduced from the length of the incoming call to the voicemail box. The telephone expert for the prosecution, David Bristowe, explained that the call would need to be at least

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10 to 14 seconds long owing to the length of the recorded message which the caller would have heard before accessing the voicemail message.57 Therefore, where a call was at least 10 to 14 seconds in length, it could be inferred that the caller had listened to a voicemail message.58

2.30 During the same period, the police carried out a surveillance operation on the home address

of Mr Goodman. The purpose was to prove that the telephone was in Mr Goodman's hand at the time of any relevant calls from that number into the voicemail systems being monitored.59

2.31 On 15 May 2006 O2 informed the police that they had identified and contacted a number

of customers whose voicemail accounts had potentially been accessed unlawfully. Two such customers, Max Clifford and "HJK"60 had asked that the police be informed.61 This was highly significant because these potential victims were not members of the Royal Household and therefore would not ostensibly have been of any interest to Mr Goodman (although the NoTW was later to argue that Mr Goodman had a wider remit than the Royal Household). At around the same time, other service providers also gave the police details of possible victims although all but a very small number were linked to the Royal Household.62

2.32 On 30 May 2006 Ms Dowd prepared a briefing on the current status of the investigation for E the Director of Public Prosecutions (DPP), who at that time was Ken Macdonald QC (now Lord

Macdonald QC of River Glaven), and for the Attorney General.63 This was conventional in any case involving members of the Royal Family. In the briefing Ms Dowd explained the legal and technical issues, and stated:

"… in addition to Goodman, another potential suspect has been identified as accessing the UVM's [sic] on a number of occasions and inquiries continue in relation to him. I am told that in the media world he is widely suspected of being able to access mobiles … A vast number of UVM's belonging to high profile individuals (politicians and celebrities) have been identified as being accessed without authority – these may be the subject of a wider investigation in due course. A number of the targets of these unauthorised accesses have been informed – some of whom have declined to assist in a police investigation." Lord Macdonald QC asked to be kept closely informed.64 He was not asked to give an opinion on the case and he said it would have been surprising if he had been asked to do so.65

2.33 On 31 May 2006 DCS Surtees prepared a written update on the investigation.66 As the briefing

given by Ms Dowd to the DPP indicated, the police had by then ascertained that one of the "rogue" numbers accessing the voicemail boxes of Mr Lowther-Pinkerton and Ms Asprey belonged to Mr Mulcaire. DCS Surtees identified the possibility that Mr Mulcaire and Paul Williams were one and the same person. The update referred to Max Clifford and "HJK" and

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suggested that the investigation into potential victims outside the Royal Household should be taken over by a team outside the anti-terrorist branch. Pursuing his recommendation that the wider investigation should be undertaken by a different team, he also recorded that he had briefed the relevant officers.

2.34 Mr Clarke decided to keep the investigation within the anti-terrorist branch and not to widen the original parameters of the investigation.67 Mr Clarke described his thinking as follows:68

"As the investigation progressed it became clear that there may have been many other people being targeted by whoever was responsible for the interception, and there was potential for the investigation to become much wider. I took the decision that this was not appropriate for a number of reasons. In coming to the decision that the parameters of the investigation had to remain tightly drawn it was obvious to me that a wider investigation would inevitably take much longer to complete. This would carry two unacceptable risks. First, that the investigation would be compromised and evidence lost and second, that the much wider range of people who we were learning were becoming the victims of this activity would continue to be victimised while the investigation took its course. This would probably go on for many months and to my mind this would be unacceptable."

2.35 Mr Clarke rejected the option of informing the victims, in confidence. This was to enable the

E investigation to continue:69

"It was not feasible to notify victims and continue with a wide ranging covert investigation, and if we had done so, it is inconceivable that the fact that there was an enquiry into this matter would not have leaked, thereby compromising the investigation and leading to the potential loss of evidence."

2.36 Mr Clarke agreed that this decision not to widen the parameters of the investigation was

probably made on or shortly after 31 May 2006 when DCS Surtees briefed him on the potential breadth of the investigation.70 His evidence was that, when it was becoming clear that the police were looking at something endemic within a particular part of the media and that there were more victims than they originally thought, he did seriously consider transferring the investigation from SO13 to a different department. He explained:71

"...Initially it was because by that stage my officers were very familiar with the quite complicated technical aspects of this offence…They had also engendered the confidence of the royal household in the way in which they were conducting themselves and the investigation, and because of the wider nature of what was happening, it would have meant picking apart the investigation and perhaps hiving off one part to one department, keeping another part with us, and that would have not made any sort of operational sense. So at that stage I decided it should stay where it was."

2.37 In evidence DCS Surtees said that it was a "fair observation" that it might be difficult

to disentangle an investigation involving offences against the Royal Household from an investigation involving other victims.72 As a result, the police strategy was to continue concentrating on arresting and prosecuting Mr Goodman and Mr Mulcaire and not (in the

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words of DCS Surtees): "to delay this exercise in favour of identifying a multitude of victims to load a future indictment…"73 He explained his biggest fear was that:74

"… sensitive state visits by principle [sic] members of the Royal Family to areas such as Iraq or Afghanistan could be leaked with the obvious security risks associated with such knowledge, whilst a trawl for victims continued."

2.38 On 21 June 2006, DCS Williams prepared a further written update.75 He recorded that

through an analysis of the Vodafone "Vampire" data gathered during what he termed the "sting operation", the police had identified two voicemail "interceptions" in the "narrow" sense76 by Mr Goodman and two by a phone number which was subsequently attributed to Mr Mulcaire.77 He described this as "a moment of reflection" during which he put the operation in its context.78 DCS Williams concluded by setting out his concerns about the strain on resources caused by the burgeoning number of SO13 anti-terrorist operations and the need, given the limited resources available, for a proportionate approach to Operation Caryatid:79

"At the moment I consider that I have enough resources to continue with this enquiry in terms of what is currently required, however I believe that it is important to

E formally record that this investigation has been conducted against a backdrop of

sustained and increasing workload for SO13 since at least December 2005. Over that period the number of operations has increased from numbers in the 50's to today at tasking where we have reached 72 active operations with a number of them posing significant life threatening risks. Today again at tasking, as in previous weeks, there were requests for additional resource with there no longer being any spare capacity. This has resulted in some lower priority anti terrorist operations being placed on hold to release officers to higher priority operations. The level of the current workload is unprecedented and the assessment for the future is that this is unlikely to ease. "Operation Caryatid has been brought to its current status against this backdrop and the need to balance resources against all anti terrorist operations. Subject to the stages outlined above the scope of any future overt operational activity e.g. arrest/ searches will need to be balanced against the whole of SO13/CT priorities. These comments are documented purely to reinforce how my decision-making has been reached in terms of how to approach this enquiry in a proportionate manner."

2.39 Meanwhile, the service providers continued to identify previously undiscovered potential

victims.80 The decision not to widen the investigation was, however, maintained. On 6 July 2006 DCS Surtees noted in the decision log that he was aware that there were potentially numerous victims, at the hands of Mr Goodman and Mr Mulcaire or others, but that identifying all those victims would be "hugely time consuming".81 In the context of what was later to happen (both at the conclusion of the prosecution and during the years that followed

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when concerns were being expressed about the way in which the investigation had been conducted), this is an important observation.

2.40 On 30 June 2006 the police prepared a written request for advice from the CPS.82 The police informed the CPS that the telephone evidence indicated that:

(a) between 26 January 2005 and 24 April 2006 Mr Goodman's landline had called the unique voicemail access numbers of Mr Lowther-Pinkerton and Ms Asprey 145 times and 107 times respectively; (b) between 22 February 2006 and 8 May 2006 a landline located in the offices of NI had called Ms Asprey's unique voicemail access number; (c) in May 2006 a landline number registered to an office leased by Mr Mulcaire had called the unique voicemail access numbers of Mr Lowther-Pinkerton and Ms Asprey five times and 38 times respectively; and (d) the number relating to Mr Mulcaire's office premises had called Mr Goodman's mobile phone a number of times.

2.41 On 14 July 2006, before the CPS responded to this request for advice from the police, Ms

Dowd sent another confidential briefing note to the DPP and the Attorney General.83 Lord E Macdonald agreed that the briefing was premised on the narrow interpretation of s1 of RIPA.84 However, Ms Dowd expressed the view that offences of conspiracy between Mr Goodman and Mr Mulcaire to commit s1 of RIPA and s1 of CMA offences "may better reflect the alleged criminality involved and enable a more comprehensive case to be presented".85

2.42 On 18 July 2006 Ms Dowd advised the police in writing. She advised that the case against Mr

Goodman and Mr Mulcaire, at that stage limited to the Royal Household interceptions, was "cogent and presentable and could proceed without the need to delve into the content of any messages left and/or retrieved".86 She also stated that:87

"Whilst there are many aspects of the evidence which I would require to be clarified, it is my initial assessment that offences under the CMA and RIPA 2000 may be provable. However, in addition, I would also be looking to consider an offence of conspiracy to commit those offences on the basis of other evidence being available …"

2.43 It is correct to observe that this was the first occasion on which the possibility of the criminality

being accommodated within the offence of conspiracy was mentioned by the CPS. As Lord Macdonald pointed out in evidence, and reflected above, a charge of conspiracy would not require proof that every interception had taken place before it had been accessed by the intended recipient:88 indeed, given that the offence was constituted by the agreement rather than by the subsequent act or acts, it would probably be sufficient to prove a common

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intention to intercept voicemail messages without examining exactly when such multiple accessing would be taking place.

2.44 Also on 20 July 2006 DCS Williams prepared a further written update on the investigation.89

He noted that: "there may well be a much wider range of 'victims' and indeed I suspect that Mulcaire could well be someone whose business it is to secure access to information concerning a whole range of 'VIPs'". Identifying the options, again he included:

"extend[ing] the investigation to include the full extent of this potential criminality which would help to establish the seriousness of what we are facing."

but he went on:

"However, to do this effectively the enquiry would probably have to remain covert, which would leave my known and unknown victims vulnerable over a much greater period of time. It would also require significant SO13 resources and the current terrorist threat requires their deployment elsewhere against much higher threats to public safety/life."

E 2.45 Because of this, DCS Williams was of the view that Operation Caryatid should remain limited

to victims within the Royal Household but that Mr Goodman and Mr Mulcaire should be arrested as soon as possible in order to curtail the exposure of the victims to voicemail interception. DCS Williams also had in mind that including more victims would be unlikely to increase significantly the sentence that the offenders would receive; and that securing a conviction as a deterrent to others would be best achieved through a clear and simple case. He set out that the alternative to limiting Operation Caryatid would be:

"… a much extended trial, numerous victim's [sic], potentially more suspects with a host of council [sic] all seeking to derail what could appear to be a far more complicated case ... [whereas] "Once executive action is taken then all parties can be briefed re the security issues and the phone companies can start to put in appropriate security measures and brief/reassure their customers – all of which will reduce public/personal harm ..."

2.46 In the same update of 20 July 2006, DCS Williams also listed the factors which influenced

his view that the investigation should not be transferred out of SO13. His list included the following:

(a) that the support of the Royal Household was strongly based on the confidence it had in SO13; (b) that the relationships formed between SO13 and the service providers were crucial to a successful prosecution; (c) the importance of continuity of the investigation; (d) that delays would be caused by transferring the investigation to another department because a new SIO would need to review the case and may have resource constraints that might further delay the operation. (e) the current team's intimate knowledge of the case, which could not realistically be picked up in the same detail by a new team.

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2.47 DCS Williams sought strategic guidance on this approach from Mr Clarke, who endorsed his

view.90 He then went on leave until 12 August 2006 so it fell to DCS Surtees to deal with information received on 26 July 2006 to the effect that Mr Mulcaire had accessed the voicemail of Tessa Jowell, then a cabinet minister. DCS Surtees then noted in the decision log:91

"As a result the position is that this changes the perception that as well as the Royal Correspondent of the N.O.W filling up his editorial with Royal gossip the potential for operational Security breaches now not only surrounds the Royal household but also Cabinet Ministers." When giving evidence, DCS Surtees agreed that his primary concern was then to stop the voicemail interception in the interests of national security.92 p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-James-Harding. pdf; p2, para 4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-John- Witherow.pdf pp48-43, lines 7-10, Camilla Wright, ibid p21, lines 9-16, Lord Smith, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-22-May-20121.pdf http://www.pcc.org.uk/cop/evolving.html pp39-40, lines 25-8, Keith Surtees, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-29-February-2012.pdf p46, lines 7-19, Helen Belcher, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-8-February-2012.pdf p77, lines 4-17, Neil Wallis, ibid pp41-43, lines 10-12, Rebekah Brooks, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript- of-Afternoon-Hearing-11-May-2012.pdf pp24-26, lines 8-13, Baroness Hollins, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript- of-Afternoon-Hearing-2-February-2012.pdf p84, lines 2-21, Dr Rob Mawby, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am. pdf; p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Dr-Rob-Mawby.pdf; p15, para 32, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Mark-Hughes- The-Telegraph-taken-as-read.pdf In this case, the Department of Constitutional Affairs (DCA), later to become the Ministry of Justice The Guardian, 13 June 2007, http://www.guardian.co.uk/commentisfree/2007/jun/13/media.pressandpublishing p1, Aidan Barclay, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-AB1B.pdf p5, ibid p98, lines 16-20, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-24-April-2012.pdf So that there is no doubt about the matter, I do not in any sense criticise the way in which the Charter Commissioner and Charter Compliance Panel went about the work: my concern is the limit of their power and responsibility p32, para 57, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf p66, lines 3-13, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of-Morning- Hearing-9-July-2012.pdf p56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf p68, lines 7-16; p90, lines 7-17, Lara Fielden, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Afternoon-Hearing-13-July-20121.pdf Part I, Chapter 9, para 5.14 Application 821/03, (2010) 50 EHRR 46

2.48 On 2 August 2006 Ms Dowd discussed the case with leading counsel, David Perry QC. Mr

Perry agreed during his evidence that the advice he gave was essentially that, first, there was evidence in respect of four main substantive offences93 which established in any event that the interception had taken place before the intended recipient had accessed the voicemail message concerned; and second, that in relation to the conspiracy charge, the issues about whether or not there needed to be an "unopened envelope" would not arise.94

2.49 Mr Perry explained in his evidence that he also advised against charging Mr Mulcaire and Mr

E Goodman with CMA offences because asking a jury to deal with those allegations together with s1 of RIPA would be confusing;95 furthermore, s1 of RIPA more accurately reflected the conduct concerned.96 Mr Perry also advised as to the possibility of obtaining a warrant under the Police and Criminal Evidence Act 1984 (PACE) and the attendant difficulties which would arise in relation to journalistic material.97

2.50 The only record that exists of the meeting on 2 August 2006 is an email sent by Ms Dowd to

the police on that day.98 On the question of the interpretation of s1 of RIPA, Ms Dowd said the following in the email:

"We have briefly discussed before the possibility of arguing that what we have termed our Computer Misuse Act offences might fall to be considered as RIPA offences – that the issue has not definitively been argued. I was reticent about arguing the point in this case. However, having considered the matter with Counsel we have concluded that we could properly argue the point – and in any event nothing would be lost as we already have the 4 main clear RIPA offences (if not more I hear!)."

2.51 As regards Ms Dowd's use of the words "if not more I hear", DCS Surtees was asked whether

this was a reference to the possibility, at least, of additional co-conspirators. DCS Surtees disagreed and said that:99

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"I think it's more … that we've got more information/evidence coming from the telephone companies to talk about access to DDNs and the sequencing which we're concentrating on as opposed to more suspects."

2.52 Pausing in the narrative, it is appropriate to comment on the approach of the police to the

gathering of evidence and to the strategic decisions that were taken, particularly against the context of the concern that this approach was or could have been affected by the relationship between the MPS or its most senior officers and NI. The first point to make is that there is no evidence (or even the slightest suggestion) of any relationship between NI, the NoTW or any of its employees and any officers involved in this enquiry from the Deputy Assistant Commissioner (Mr Clarke) down through the detective ranks. Whilst each, as their roles required, will have interacted with individuals from NI at certain times during their careers, they did not form social relationships. Mr Clarke gave evidence as to his level of interaction with individuals from NI, which, in spite of his senior position and high-profile role, was extremely limited. To the best of his knowledge he had never met or even spoken to Neil Wallis or Colin Myler (editor of the NoTW between the end of January 2007 and July 2011). He met Rebekah Brooks and Andy Coulson on one occasion in 2004. The purpose of that meeting was to make the media aware of the reality of the terrorist threat because there had been a great deal of criticism in the media of the counter-terrorism effort and some commentators had been

E saying that the terrorist threat was being exaggerated by the authorities for political or self-

serving purposes.100 At the meeting, they were unexpectedly (at least to Mr Clarke) joined by Rupert Murdoch.101

2.53 The only known relationship was with Mr Clarke's senior officer, Mr Hayman, and the occasions

in respect of which there is evidence of contact with NI in the relevant period will be clear; there is no basis for suggesting that Mr Hayman was any more than peripherally involved in the investigation; to such extent as he was involved in any way, it was solely because of his responsibilities for overall command of Mr Clarke's team. Neither do I believe that Mr Clarke or any of the other officers were or would have been affected by any such relationship.

2.54 The peripheral nature of the involvement of Mr Hayman is illustrated by his evidence and

that of Mr Clarke. The evidence of Mr Hayman is that he allocated the investigation to Mr Clarke, asked him to devise an investigation strategy and an operation,102 and let him "get on with it". Mr Hayman only expected Mr Clarke to refer to him if Mr Clarke considered there was something that Mr Hayman needed to brief up to the Commissioner or if Mr Clarke had insufficient resources.103 Mr Hayman stressed that he was not involved in the detail of Operation Caryatid and stated that his degree of detachment was demonstrated by the fact that he did not know when the arrests or searches were going to take place.104 Mr Hayman told the Inquiry that he could count on one hand the number of times he and Mr Clarke spoke about the investigation.105

2.55 Mr Clarke, in general agreement with the extent to which Mr Hayman had contact with him on

this issue said that he personally would have briefed Mr Hayman "probably not very often".106 Mr Clarke could not remember specifically which issues he discussed with Mr Hayman except

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that he certainly briefed Mr Hayman at the outset when it was discovered that Mr Goodman and Mr Mulcaire appeared to be responsible and "probably … in the run-up to the arrest phase".107 It is clear, therefore, that Mr Hayman did not make any operational decisions and did not influence relevant decision-making, save to the extent that he did not disagree with any of the decisions made by Mr Clarke.108

2.56 Moving on, I am entirely satisfied that each of the decisions taken was justified and based

on reasoning that was clear, rational and entirely in keeping with the operational imperatives of the police at that time. I recognise that the decision (which was revisited on a number of occasions) not to expand the investigation beyond the Royal Household gives rise to concern but there is no basis for arguing that it was based on oblique motives consequent on any relationship with NI. Again, in the light of the circumstances prevailing (especially related to the extensive demands on police time in relation to terrorism), it was understandable, justified and appropriate.

2.57 Elaborating on the reasons for these conclusions, it is clear that during the pre-arrest phase

of the investigation DCS Williams, DCS Surtees and, indeed, Mr Clarke were aware that there could be a wide range of other victims but that the priority which needed to be given to counter terrorism, the need for secrecy and the belief that arresting Mr Goodman and Mr Mulcaire would send out the strongest signal and bring this criminality to an end all militated against E expansion. The contemporaneous decision logs and case reviews identify this reasoning; DCS Williams spoke of the process as involving "a balance of risk and harm" which would be judged in particular against the imminence of a threat to life and it is equally clear that judgements continued to be made throughout this time on that basis.109 Such a decision, however, does leave open the need to devise, institute and execute an appropriate exit strategy. All these decisions were re-visited after the operation moved through the arrest and prosecution phases and require re-examination as the extent of the evidence came to be known whereupon the need for an exit strategy to deal with the unresolved issues surrounding the investigation became all the more pressing. It is to these phases that I now turn.

The arrest and searches 2.58 On 8 August 2006, the police arrested Clive Goodman and Glenn Mulcaire and searched over

13 premises and vehicles, including their home addresses.110 Attempts were also made to search the offices of NI in Wapping111 although to minimise the risk of encountering journalistic material, the CPS had advised that the search of those premises should be confined to Mr Goodman's desk and the finance offices.112 The objectives of the search included looking for evidence implicating other NoTW journalists. DCS Surtees explained:113

"The intention behind searching the offices of News Corporation was to seize all material relating to Clive Goodman and Glenn Mulcaire to establish the extent of their unlawful practises [sic] and also to establish the level of knowledge of NOTW concerning this illegal activity. At no point was a decision made by D/Supt Williams

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or I to not investigate the wider possible involvement of NOTW. Despite the legislative challenges to searching journalistic premises, the warrant would be executed as I was eager to gain entry to the offices of NOTW for two reasons: The first was to seek and recover any additional evidence relevant to Clive Goodman's activities and the second was to ascertain whether any other evidence existed implicating others within the NOTW in a wider conspiracy, hence my reference on application for the section 8 PACE warrant to the financial office."

2.59 DI Maberly explained that the police intended to seize records relating to financial payments

to Mr Mulcaire (including documents recording the dates of such payments, the reasons for the payments and those authorising the payments) and plans or directories relating to the locations of telephone extensions within the offices.114

2.60 It is significant and a matter of regret that the plans for the search were substantially thwarted.

DCS Surtees described how the searching officers were obstructed by NI personnel:115

"There was some real difficulty in conducting the search at News International. There were I think four of my officers who actually got into the premises before News International barred the rest of my officers from going into News International. We

E got to the desk of Goodman, we seized some material from the desk of Goodman.

There was a safe on his desk, which was unopened. My officers were confronted with photographers, who were summonsed from other parts of News International, and they were taking photographs of the officers. A number of night or news editors challenged the officers around the illegality of their entry into News International. They were asked to go to a conference room until lawyers could arrive to challenge the illegality of the section 18(1) and 18(5) and section 8 PACE authorities, and it was described to me as a tense stand-off by the officer leading the search. "The officer tried to get our forensic management team, our search officers into the building. They were refused entry, they were left outside. Our officers were effectively surrounded and photographed and not assisted in any way, shape or form. That search was curtailed. Some items were taken. The search did not go to the extent I wanted it to."

2.61 On being informed of the level of obstruction, DCS Surtees, who was not present at the

search, instructed the small team to search Mr Goodman's desk only and leave the premises with whatever they had recovered.116 A locked safe and computer had to be left behind. The financial records were not searched.

explained: "I think the moment had been lost with regard to the information we sought. It, I think, had gone, quite frankly". He agreed that what he meant was that NI might have hidden or destroyed incriminating information.117 This is a disturbing conclusion and justifies a re-evaluation of the way in which PACE operates when seeking to deal with allegations of criminal conduct by journalists while at the same time protecting the essential requirements of a free press.118

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2.63 The search of Mr Mulcaire's home and business premises was very much more successful:

the police seized some 11,000 pages of papers. These papers have been referred to in various ways including as "Mulcaire's notebook" and "the Mulcaire archive" and, in part, consisted of lists of names, with addresses, landline and mobile phone numbers; in some cases, there were unique voicemail access numbers and pin numbers along with contact details for the network service provider. Additionally, of potential importance was a first name in the top left hand corner of the page. In a number of cases in respect of which Mr Goodman was later prosecuted, that name or "corner name" (as it has since been termed) was "Clive". Given the present status of the investigation and prosecution of journalists in relation to this material, it is not appropriate to go further.

2.64 What can be added is that the 11,000 pages of documents included what has since been

described as the "for Neville" email.119 This email (dated 29 June 2005) was apparently sent by Ross Hindley at the NoTW, to Mr Mulcaire, and is entitled 'Transcript for Neville: Wednesday, June 29 2005'. The message read:

"Hello, This is the transcript for Neville. I have copied the text in the below email, and also attached the file as a word document. E Ross. TRANSCRIPT FOR NEVILLE: WEDNESDAY, JUNE 29 2005." Then, set out in the body of the email is the text of 35 voicemail messages left for, or received by, Gordon Taylor. The attachment is entitled "TRANSCRIPT_FOR_NEVILLE.doc".120

2.65 In addition to this mountain of paper, the police also seized from Mr Mulcaire audio cassettes,

CD roms, white boards showing pin numbers, security codes and bank details of potential victims.121 There was also a contract between Mr Mulcaire and the NoTW according to which Mr Mulcaire was to provide "a research and information service" to the newspaper and undertook to carry out "all research and information assignments" requested.122

showing apparent payments to Mr Mulcaire.123 Suffice to say that he was paid a weekly retainer amounting to no less than £2,019 per week. In addition to the weekly retainer he also received other payments, typically of £250, which appear to have been linked to work on specific stories.

2.67 On the day of the arrests, the MPS notified the public that there were victims other than

those associated with the Royal Household. Its press release stated that: "As a result of their enquiries police now believe that figures beyond the Royal Household have had their telephones intercepted …"124

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2.68 Following the arrests, NI instructed BCL Burton Copeland Solicitors (Burton Copeland) to

respond on their behalf to any enquiries or requests from the police.125 How the firm went about discharging that responsibility is examined below but the evidence given by Colin Myler was that the role of Burton Copeland was to:126

"act as the go-betweens and the word I've used before is a bridge head, as I understand, between the police and the company, so that anything that the police wanted Burton Copeland would facilitate, so that there was full transparency and there was no opportunity to accuse the company of being an obstruction to what the police were looking for."

The interviews

2.69 On 8 and 9 August 2006 Mr Mulcaire and Mr Goodman were separately interviewed by

junior rank detectives. Both were warned of their right to remain silent and, exercising that right, both declined to answer any questions giving 'no comment' responses.127 At this stage, however, what is of interest is not what they might have said but the questions themselves for although, at that stage, the police would only have been able to undertake a cursory examination of the documents seized, they indicate just how much the police knew or

E appreciated about the likely extent of Mr Mulcaire's activities and, at least to some extent, who his victims were.

2.70 During the interviews of Mr Mulcaire on 9 August 2006, the interviewing officers referred to

Abi Titmuss, and various sports people, offenders and members of the Royal Family (whose names have been redacted). Among the allegations put to Mr Mulcaire, Detective Constable Gallagher asked the following questions:

"I'm gonna cross reference something in this document. There's a reference to Tessa Jowell and then in brackets, sorry circled above it says MP, gives a telephone number DDMI, PIN number. [Redacted] is crossed out David Mills and then it says [redacted], gives an account number and network Voda. David Mills is written underneath and it says husband and gives a telephone number for him and then (INAUDIBLE) refer to another document found in the kitchen cupboard of your home, exhibit WAB/61 is another sheet of A4 paper which also refers to Tessa Jowell and that has a telephone number there. If I can just show this to you, on the left hand side at the top of the page it says Tessa [redacted]. Now that sounds to me, that reads to me like you've written down somebody's conversation. Is that what's taken place here? "Have you intercepted her voicemail? "Either of Tessa Jowell or her husband?"

2.71 DC Gallagher also asked the following question, which made clear that the police had evidence to suggest that Lord Prescott had been the victim of voicemail interception:128

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"Another page here, this has got the name John Prescott. There's another name underneath, first of all it says advisor and then the name Joan Hammel. You've got her telephone numbers and DM1 numbers, password numbers and Vodafone passwords that I've already mentioned and an address in NW1. Have you got that information to access John Prescott's network or that of his advisors?"

2.72 On the extent of the work that Mr Mulcaire was performing for the paper, DC Gallagher asked the following:

"Okay. We've got pages and pages of information here, at least another 30 odd pages, various names. Again you've got instances of telephone numbers, PIN numbers, etc. I just picked out ones which are relevant to this enquiry that we put to you so far. Okay, the last page in this document is an email message. This is very relevant ... "This suggests that you do have a contract, a long term contract with the News of the World and that would account for you being paid up to £2,000 a week by them. "Can you recall in the last interview, yeah, I put it to you that you were on a retainer by News of the World to do research for them. I hadn't seen that email at the time and that supports what I said earlier on, remind you that you were being paid by them a fixed fee just to do regular for them at their behest. They're asking you to do research for them and you're providing them with information and on top of that, when you E get a good one, then you have a separate contract for that particular job and you're in the business of delving into people's personal lives inappropriately, breaking the law to intercept telecommunications and that's part and parcel of what you do. Have you got anything to say to that?"

2.73 DC Green returned to the issue on a later occasion and asked the following question:

"… I'm asking you to account for the fact that this invoice shows that you have been paid for what would appear to be work in and around a person called Jowell who I believe to be Tessa Jowell who we've outlined in other documents. I believe that this fact is because you may be taking part in the commission of the offence of unlawfully intercepting her telecommunications …"

2.74 Revealing a suspicion that Mr Mulcaire had been working for one or more NI journalists other than Mr Goodman, DC Green also put the following to him:

"… I have no doubt, this simply goes back and there is evidence there that you have been in the employee [sic] of News International for several years and you've been working with Mr Goodman most recently".

2.75 On 9 August 2006, following the interviews, Mr Goodman and Mr Mulcaire were charged

with conspiracy to intercept communications and eight substantive offences of unlawful interception of communications. Critical context for this development in the investigation comes from other arrests which took place on the same day as part of an investigation, Operation Overt. In short,25 p91, line 6 et seq, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-Morning-Hearing- 25-April-2012.pdf p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf pp36-37, lines 22-2, Professor Sue Mendus, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf p52, lines 7-9, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-9-January-2012.pdf p2, para 7; p5, paras 14-15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of- Lord-Patten1.pdf pp11-13, paras 25-30, ibid Robertson, G People Against the Press: An Inquiry into the Press Council, p13 p206, paras 270-271, ibid p8, lines 2-20, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-5-December-2011.pdf p8, para 16, ibid p10, para 34, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Third-Witness-Statement-of-DAC- Sue-Akers.pdf http://news.bbc.co.uk/1/hi/uk_politics/8044998.stm ibid, passim p39, lines 6-17, Matt Driscoll, ibid pp39-40, lines 22-1, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-23-November-2011.pdf pp45-46, lines 6-2, JK Rowling, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-24-November-20112.pdf pp68-71, lines 13-21, Susan Panuccio, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-17-January-2012.pdf; p3, para 5.1.3, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Witness-Statement-of-Susan-Panuccio.pdf; p7, para 22.1, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/01/Witness-Statement-of-Simon-Toms.pdf p51, lines 6-10, Tim Godwin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-7-March-2012.pdf pp5-6, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Lord-Blair. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Annex-to-Lord-Blair-Statement.pdf p14, para 31, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Mark-Hughes- The-Telegraph-taken-as-read.pdf ACPO guidance on gifts, gratuities and hospitality, paras 2.21-2.26 pp40-41, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-30-November-2011.pdf – this is discussed further below p70, lines 13-25, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Morning-Hearing-9-December-2011.pdf; p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Second-Witness-Statement-of-Richard-Thomas-CBE1.pdf; p1, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/12/Third-Witness-Statement-of-Richard-Thomas-CBE1.pdf; p2, http://www.levesoninquiry.org.uk/wp- content/uploads/2011/12/Fourth-Witness-Statement-of-Richard-Thomas-CBE.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/08/News-International-Addendum-to-Privacy-Law- Submission.pdf p68, lines 13-16, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf p5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Andrew-Marr.pdf pp51-52, lines 24-7, Adam Boulton, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Afternoon-Hearing-15-May-2012.pdf p98, lines 6-11, David Cameron, ibid p5, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Exhibit-KRM-16.pdf p32, ibid p61, lines 10-12, ibid I am, of course, conscious of the limited extent to which the Liberal Democrat party (and its predecessors) have, in practice, fitted within that description pp76-78, lines 20-21, Claire Enders http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-17-July-2012.pdf Details contained in the judgment of the Court of Appeal [2012] EWCA Crim 1243 para 50, ibid p6, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Baroness- Buscombe1.pdf p19, para 42, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Closing-Submission-from-Associated- Newspapers-Ltd.pdf p1, para 3, ibid p16, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-Roy- Greenslade-of-City-University.pdf pp3-4, para 17, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Tim-Suter-of- Perspective-Associates.pdf p57, lines 19-22, Professor Horgan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-13-July-20121.pdf p2, ibid Part K, Chapter 7, para 5.2 L 1806 see Armonienė, cited above, para 39 EHRR CD 105 people were arrested for conspiracy to cause nine passenger aeroplanes to explode over the Atlantic; this was one of the largest counter terrorism operations ever undertaken.129 When DCS Williams returned from leave on 12 August 2006, he received a briefing during, which he stated, he would have been told about the range of

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material that had been found130 but it is highly material to bear in mind that, from that time, Operation Overt was also occupying his attention.131

The initial review of the documents seized: compiling "The Blue Book"

2.76 The police have access to a computerised system to record the largest investigations and

for the analysis of the material received. It is known as HOLMES (Home Office Large Major Enquiry System) but it was not used for this operation. In evidence, DCS Williams and DCS Surtees gave different reasons for this decision. DCS Williams said that HOLMES was not used because of the desire to keep the investigation secret. DCS Surtees said that it was not possible to record all the documents on the database because it was already at operational capacity.132

2.77 In order to have the material analysed in more detail DCS Surtees had to negotiate for the

necessary resources. Because his anti-terrorism colleagues were all working on Operation Overt, DCS Surtees asked for some 20-30 officers from Special Branch:133 "to populate a spread sheet with the details of all those individuals who appear on the documents seized

E that there is an indication of Interception offences against them".134 They began work on 9

August 2006.135

2.78 In an entry in the decision log dated 10 August 2006, DCS Surtees gave a further indication

of what the police were able to ascertain within days of seizing the documentation from Mr Mulcaire and which revealed his suspicions that Mr Mulcaire's work was centred on obtaining access to voicemail messages:136

"Having reviewed the material seized at the address searches it is clear that there is a wealth of sensitive documents relating to hundreds of individuals including Royal Household, Members of Parliament, Sports stars, Military Police, Celebrities and journalists. There is also a number of electronic media seized including cassette tapes, microtapes and computers ... "It is clear from the documents Recovered from the searches conducted that Mulcaire has been engaged in sustained (years) period of research on behalf of News International, this assumption is based on the fact that News International have for a number of years paid substantial cash payments to his bank accounts. The documents are a collection of handwritten sheets that show 'research' work in various levels of completion. In many there is simply a name of a celebrity or well known public figure these develop into sheets detailing home addresses, business addresses, telephone numbers, DDNs, account numbers, passwords, pin numbers and scribblings of private information. Clearly from these documents I take the view that this research work

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is and has been undertaken over a substantial period and is with the intention of obtaining access to voicemail messages …"

2.79 With the identification and notification of potential victims in mind, DCS Surtees continued as follows in the decision log:137

"To establish a full picture as to whether individuals have been intercepted or the amount of times they have been intercepted all of the airtime providers will need to search their database to give us those details. Once all of this work is complete then I will discuss the issue of how we will notify those victims. Again whilst it would be advantageous to victims to be informed I would not be in a position to provide details and therefore would need to follow up each contact with further contact and conversations which by sheer volume would be impracticable. I am satisfied that the risk to these victims has diminished due to the arrest of the two subjects … "From the documentary evidence referred to above a spread sheet has been produced showing the names of everyone who is featured regardless of how developed the research appears. So in some cases the spread sheet will simply feature the name with no other information apparent in others then many other boxes will be populated. Where we have a telephone number and a DDN I have asked for the telephone data to be cross referenced to ascertain whether possible interceptions have taken place. E This will produce a possible 'victim' list …"

2.80 Before passing from this logged decision, it is important to note that DCS Surtees also

recorded that the present advice from the CPS was that there needed to be evidence that the voicemail message was intercepted prior to being listened to by the intended recipient. Thus, the advice of David Perry QC (that the wider interpretation of s1 of RIPA which avoided having to prove that 'the envelope had not been opened' was arguably correct and that, in any event, the problems of interpretation could be wholly avoided by charging with conspiracy to commit the RIPA offence) had simply not filtered down to DCS Surtees. He continued to proceed on the basis of a far more restrictive interpretation of the law.

2.81 The spreadsheet required by DCS Surtees took officers from Special Branch five to seven days

(including overtime over a weekend) to create.138 It became known as "the blue book"139 and DI Maberly explained that it was divided into two parts. The first part contained a list of "those potentially compromised" and the second summarised the content of the audio and video exhibits.140 The blue book also identified those who had potentially received the product of Mr Mulcaire's work141 and was supplemented over the following weeks with various pieces of information, including information supplied by the telephone companies.142

2.82 DCS Surtees explained that where Mr Mulcaire had recorded the unique voicemail access

number for a particular voicemail box, the relevant mobile phone company was asked whether the number had been dialled by numbers which could be attributed to Clive Goodman or Glenn Mulcaire, that is, "the suspect numbers". The precise timing is not clear, but around the same time (and in line with the decision recorded on 10 August 2006), the police asked all five of the UK mobile phone service providers to identify calls by these suspect numbers, to

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the voicemail boxes of any of their customers, dating back as far as possible.143 To the suspect numbers was added a hub (or general) phone number at the NoTW which the police had also identified was being used to access voicemail boxes.144

2.83 On 17 August 2006 Burton Copeland wrote to Louis Mably (junior counsel for the

prosecution).145 In that letter they claimed that the NoTW had retained the services of Mr Mulcaire's company, Nine Consultancy, for a number of years, but that the activities currently the subject of charges were the result of a separate arrangement between Mr Goodman and Mr Mulcaire and were "undertaken and paid for outwith this official arrangement with the newspaper". Burton Copeland claimed that at the end of October 2005 Mr Goodman introduced a supposed confidential source named "Alexander" who was given cash payments. They enclosed the records of payments made to "Alexander" and a corresponding schedule entitled "Cash paid by News International (through Goodman) to Glenn Mulcaire". The cash payments totalled £12,300.

  1. The prosecution strategy

E Conference with counsel on 21 August 2006

3.1 On 21 August 2006 a case conference took place at Counsels' Chambers involving leading

and junior counsel, Ms Carmen Dowd on behalf of the CPS, and various police officers, including DCS Williams. Mr Perry's recollection is that, at that stage, he and Mr Mably did not have all the papers subsequently used at the Crown Court.146 The Inquiry has seen notes of this conference prepared by DCS Williams and also those of Mr Perry and Mr Mably.147 In essence, the police officers explained to counsel that the review of the seized material had demonstrated the existence of approximately 180 targets of interception148 although the nature and quality of the evidence in relation to each had not been established. In order to ensure that the case remained manageable but also reflected the broad totality of the criminality, counsel advised that the matter should proceed to trial on the basis of four to six victims (in addition to those from the Royal Household) who should be selected as being representative of the group as a whole. The advice given by counsel was that this number of victims would afford the court adequate sentencing powers; it was important to provide a picture of the criminality so that its scope could be reflected.149 The inclusion of any more victims would not increase the sentencing powers of the court.150 This is a perfectly sensible and extremely common strategy. As DCS Surtees said descriptively, there is a point at which an indictment saturates.151

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3.2 Further, on the hypothesis that there were other potential defendants who were encouraging

the commission of the primary offences, counsel pursued the question of whether anyone else was involved. In a short note produced on 14 July 2009, nearly three years later, Mr Perry and Mr Mably recorded the following:152

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

3.3 Notwithstanding the apparent certainty of counsels' recollection as expressed in their note,

the evidence given by Mr Perry was slightly less emphatic as regards the specificity of his questions:153

"I don't think I would like to say that I necessarily expressed it in precisely those terms, but I was concerned to discover whether this went further than just the particular individuals with which we were concerned and I think I was conscious in my own mind that the question had to be whether it was journalists to the extent of the editor." E

3.4 Mr Perry clarified during his evidence that his question was directed at ascertaining whether

there was evidence that would support charges against other individuals rather than understanding simply what suspicions the police might have had. Having been asked whether it was possible that there were speculative discussions along the lines that there might be circumstantial or inferential evidence, as opposed to anything concrete, he said:154

"It's certainly possible, although I have no recollection of it, and I think from my point of view I would have been looking to see whether there was a possibility of a case, rather than whether there was something that was speculative …"

3.5 Recognising that many cases are built on circumstantial or inferential evidence, Mr Perry said:155

"But it depends on the combination of circumstances and the strength of any evidence, but certainly in the context of looking at the material that we had in this case and the evidence available to us, I certainly don't think I saw anything that would have enabled me to present a case in any – on the basis of any inference or circumstantial evidence."

3.6 Mr Perry also made it clear that he had not seen any evidence that other individuals had

been involved, but that he was basing his question on his own knowledge and experience of journalists and newspapers.156 In answer to his direct question, Mr Perry said:157

"We were informed that there was no such evidence. I can't recall which officer gave that reply. I think, in fairness to everyone involved in the case, I think it's right to say that this was still at a time when the information that we were obtaining was continuing to develop."

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3.7 DCS Williams does not dispute that counsel would have been told at the conference that

there was no evidence that others at NoTW were involved in the conspiracy. When he gave evidence, DCS Williams said that:158

"… we were all aware of what the speculations, potentially how this might be further than these two men, because that was part of our discussion in terms of considering whether or not there may be other defendants. In terms of there actually being evidence, and they had access to all the material, then I would agree: at that time, we didn't have evidence."

3.8 It seems overwhelmingly likely both that DCS Williams was the officer who answered Mr

Perry's question (neither DCS Surtees nor DI Maberly were at the conference) and that Mr Perry's recollection of the answer given was accurate. As to his note concerning "anyone else's involvement", DCS Williams said that there was discussion and speculation about whether others were involved; it was this discussion that led onto the question of obtaining a production order pursuant to PACE directed to NI, requiring the production of documents.159

3.9 When DCS Williams was asked about the reference to a production order and his note: "if identifies other defendant – consider", he said that the intention was that if the fruits of a E production order revealed further suspects, they would consider the position at that time.160

DCS Williams described his thinking as follows:161

"[Mr Mulcaire] has a contract for something like 104,000 a year. What's he getting – why's he got that? Who's tasking him? What are they tasking him with? And equally, what's he giving back? Dependent on the outcome of that, we would be able to do analysis in terms of, well, assessing, then, consider, actually, what is it that we might be able to do in terms of building a further case?"

3.10 Also after three years, on 15 July 2009, DCS Williams provided a note to the CPS which contained

his recollection of the conference.162 In it, he set out his belief that everyone recognised that proving that someone was the victim of interception was "extremely challenging" (a statement which, as Keir Starmer QC163 himself recognised, was consistent with the narrow view of the law).164 DCS Williams further explained:165

"In relation to whether or not anyone else was involved. As a part of this same conference and considering what we had discovered we actually commented that we were open to the potential for there to be other defendants and in fact part of our discussion was around the merits of getting a Production Order to see if it would reveal more to help our understanding. Our NTFIU, MPS Legal services and Louis Mably were actioned to explore that further, particularly around what we could legitimately ask for in such an order, but the view of the meeting was that, that process may well be 'drawn out' by NOTW and that if possible we would seek disclosure through

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written request to their legal department seeking cooperation with our investigation. The latter is what happened …"

3.11 Mr Starmer declined to comment on this segment of DCS Williams' note.166 Subsequently,

Mr Mably stated that he "broadly agreed" with it.167 Mr Perry explained that there were two issues relating to the question of a production order: the first was whether there was any basis for obtaining evidence generally by way of a production order, and the second was whether a production order should be sought to obtain evidence of payments made by Mr Goodman to Mr Mulcaire.168 Mr Perry emphasised that he did not think that the minds of anyone were closed at that stage169 and it is certainly accurate that, following the conference, Mr Mably did, in fact, draft an application for a production order.170

3.12 I do not believe that DCS Williams sought to downplay the number of victims, as has been

suggested, still less that he misled counsel in any respect. It is right that DCS Williams told counsel that there was "no evidence" that journalists other than Mr Goodman were involved, when in reality there was inferential and circumstantial evidence,171 but this was in the context of the common understanding that counsel was enquiring into whether there was sufficient evidence to charge any further suspects. DCS Williams did not hide from counsel his suspicions that others were involved, on the contrary, they were openly discussed: he sought advice from counsel on whether a production order could be obtained in order to E secure evidence to substantiate those suspicions. DCS Williams was plainly open to pursuing investigative avenues with a view to supporting the hypothesis that others were involved. It would be unfair to suggest that, in some way, he was setting out to restrict the investigation and avoid casting the net beyond Mr Goodman and Mr Mulcaire.

3.13 Furthermore, no evidence was concealed. At the very least, counsel and the CPS knew of the

evidence supporting the charges that became counts 16-20 and were aware of the corner names which could implicate other journalists (because of counts 16 to 20). Counsel were given a copy of the blue book; further, albeit for the specific and limited purpose of reviewing the unused material,172 Mr Mably was given access to all the documents seized, including all the Mulcaire papers.

3.14 It is also clear from the notes of the conference that counsel gave some consideration to the

technical legal question which arose under RIPA namely whether it was necessary to prove that the unlawful interceptions had taken place before the voicemail messages had been listened to by their intended recipients. It is less clear, however, precisely what advice was

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given, and with what emphasis. That said, Mr Perry gave clear evidence to the effect that he did not advise that the narrow view of the law was correct. In short:173 p4, para 13, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre.pdf p21, lines 3-22, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-4-April-2012.pdf. This evidence contradicts what Mr Perry recorded in his advice dated 20 July 2009 which said in terms that it was necessary to prove that the message was intercepted before it was accessed by the intended recipient. To the suggestion that this might have been the advice he gave in 2006 Mr Perry said that: "if I did in this document give the impression that the narrow view had been adopted then that is incorrect" – p38, lines 17-19, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of-Morning-Hearing-4- April-2012.pdf. The reason why Mr Perry gave different advice is considered at paras 8.147-8.150 below pp62-63, lines 25-4, Ian Edmondson, ibid pp39-41, lines 2-22, Bob Crow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-25-January-20121.pdf; p2, para 8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Robert-Crow.pdf p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-John-Twomey. pdf pp22-23, para 57, ibid p63, lines 1-10, David Cameron, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-14-June-2012.pdf pp7, 9-10 (a list of those with whom meetings were held), http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/05/Witness-Statement-of-Tessa-Jowell-MP.pdf pp1-2, paras 3-8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Norman- Lamb-MP.pdf ibid pp3-4, para 17, ibid See Re Barlow Clowes Gilt Managers Ltd [1992] Ch 208 at 217

"well, I'm confident that that was not the approach that we took because it wouldn't be consistent with the terms of the indictment that was originally settled, and I think that the view that Mr Mably and I took was that what Lord Woolf had said in the Ipswich Crown Court case174 certainly provided an arguable basis for someone to contend that the narrow view was correct, but we thought that we should proceed on the broader view, and if the point were taken against us, we could meet it in a number of ways, because it was about making sure that we didn't lose the case overall, and we could meet it in a number of ways … [a]nd in any event, the conspiracy charge could outflank any such argument".

3.15 So it came about that, in due course, counts 16 to 20 of the indictment, which alleged

substantive offences under RIPA solely against Mr Mulcaire, were drafted by counsel. As Mr Perry explained in evidence, he could not possibly have taken the narrow interpretation of the law to be correct since, in relation to counts 16 to 20 there was neither evidence nor basis for saying that the message had been listened to by an interceptor before it had been heard by the intended recipient.175 Further, Mr Perry did not advise the police to obtain "Vampire"

E data in relation to counts 16 to 20. Put simply, Mr Perry is correct. It is simply inconceivable

that he (or any counsel instructed by the Crown to prosecute allegations of crime) would have prepared an indictment on the premise of a legal interpretation which they knew to be incorrect. I have no doubt that Mr Perry gave the advice in the terms summarised by him in his evidence.

3.16 Whether DCS Williams took away this message from this conference is less clear. In his witness

statement for the purposes of the judicial review, DCS Williams said that counsel advised that counts 16 to 20 should be included in order to test the law.176 It is apparent, however, as will be seen from the various notes, briefings and memoranda that he produced in 2009 that, at that stage at least, he was under the impression that counsel had been advising that the narrow interpretation of the law was correct. It is a safe assumption that DCS Williams misunderstood, or misremembered, what counsel had advised in August 2006; it would not be safe or correct to conclude that DCS Williams deliberately mis-stated counsels' advice on these subsequent occasions.

3.17 Regardless of the extent to which both Mr Perry advised clearly and the advice was properly

understood, following this conference, the police made no attempt to obtain technical evidence in relation to what became counts 16 to 20 which would have enabled the case to be proved on the narrow view of the law. Nor is there any contemporaneous evidence to show that counsels' advice caused surprise or consternation in the police camp. From that point therefore, the advice previously given by the CPS had no bearing upon the way

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the prosecution was prepared and advanced.177 It is also worth adding that, at the same conference, counsel advised that the appropriate charges should be under RIPA; offences under the CMA (which had no technical problems) were not pursued so as to ensure a simpler presentation to a jury.178

3.18 The last topic discussed was the question of confiscation pursuant to s6 of the Proceeds of Crime

Act 2002. Without setting out the detail of the relevant statutory provisions, a confiscation order, in essence, requires a convicted defendant to pay a sum of money representing the level of his or her financial benefit from his or her criminal conduct. The police wished to contend for a substantial benefit figure based on the monthly retainer on the basis that it was part and parcel of Mr Mulcaire's criminal enterprise.179 However, given NI's claim, through Burton Copeland, that the monthly retainer paid to Mr Mulcaire did not relate to the matters that were the subject of charges,180 Mr Perry advised that the confiscation proceedings should focus on the cash payments, which amounted to £12,300.181 Mr Perry explained that the short point was that if Mr Mulcaire was doing legitimate work it was difficult to argue that it was as a result of or in connection with the offending. Mr Perry agreed that it was his decision that this was the appropriate approach to take.182 It is convenient to state here that ultimately the Crown Court made a confiscation order for £12,300.

3.19 Before passing from the information placed before Mr Perry and the advice that he gave, it E

is appropriate to refer to the "for Neville" email. When giving evidence, Mr Perry was asked whether or not he saw this email at this conference or at any stage before 26 January 2007 (when Mr Goodman and Mr Mulcaire were sentenced). Mr Perry said in evidence that he did not have any recollection of seeing it,183 and he did not shift his ground when shown a note of a much later conference on 1 October 2010 which suggested that he saw this email after the case papers relating to Mr Gordon Taylor had been prepared for trial.184 It is right that the email formed part of the unused material but Mr Perry was not asked to examine that material and would not have been expected to do so absent specific instruction. Although it may not advance the issue very far, I conclude that Mr Perry probably did not see the "for Neville" email earlier than his recollection.

Victims not associated with the Royal Household 3.20 Following the conference, the investigating officers set about contacting victims to ascertain

whether they would be willing to provide evidence in support of the prosecution.185 DCS Surtees gave evidence that one of these victims was Tessa Jowell and, furthermore, that she

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declined to assist.186 Ms Jowell strongly disputed that she was unwilling to assist with the prosecution. She provided her account in these terms:187

"I remember very clearly the conversation, which, as I say, took place on holiday. I happened to be by the swimming pool with very close friends that I was on holiday with. The conversation didn't take very long, but I am absolutely clear that I sought clarification about what further I should do, expressed my willingness to help in any way that I could but was assured that at that stage there was nothing further that I needed to do. "… I would also say that I was a secretary of state and a privy councillor. It would have been absolutely incumbent on me, were I asked to co-operate with an inquiry, to agree to. My principal private secretary, who is a civil servant, confirmed my willingness to help, as too the two friends that I was on – who I recounted this too, are also abundantly clear about the account of the conversation that I gave them. "… I was telephoned again by the police to be told that a prosecution was going to be brought against Clive Goodman and Glenn Mulcaire. I asked if I needed to provide a statement or further assistance. I can't remember the precise word that I used, but it was essentially an offer of any assistance with the inquiry, and was told very clearly

E that I wouldn't be needed as a witness because they had witnesses from the royal household who would support the prosecution."

3.21 This is not an issue that is directly relevant to my Terms of Reference but I find the evidence

given by Ms Jowell on this point to be compelling. It is not necessary to decide how DCS Surtees came to recall otherwise save that I do not conclude that he was deliberately seeking to minimise the impact on NI: had he wished to do that, he would not have spoken to her in the first place.

3.22 In the meantime, in response to the request to identify any customers whose voicemail boxes

had been called by the suspect numbers, Vodafone emailed DI Maberly, on 29 August 2006, with a spreadsheet of calls made to 61 unique voicemail access numbers by Mr Goodman's home landline and Mr Mulcaire's office landline. A large number of those on the list were celebrities and well-known public figures, whilst others appeared to be company names.188 On 30 August 2006 DI Maberly emailed Orange to ask if there was "an indication of interception" of the voicemail messages of six named individuals, including Simon Hughes. He also sent an email to Vodafone asking if anyone had listened to the voicemail of nine named people.189 On 10 October 2006, O2 responded to the request to identify customers whose voicemail boxes had been called by the suspect numbers by sending DI Maberly a spreadsheet setting out the number of times that the 93 customers concerned had been called by the suspect numbers.190

3.23 In the light of the information that became available, an appropriate number of victims

(additional to those emanating from the Royal Household) were identified as the named victims for the charges that were represented by counts 16 to 20 of the indictment directed at Glenn Mulcaire (and not part of the conspiracy count which involved Clive Goodman). They were chosen, essentially, because of the high volume of frequency of calls (along with

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their duration) to the unique voicemail access numbers by Mr Mulcaire.191 The subjects of these five charges were Max Clifford, Skylet Andrew, Graham Taylor, Simon Hughes and Elle Macpherson.

3.24 In the light of all the circumstances, it is necessary to deal with one further discussion

with a potential victim of multiple interceptions. DCS Williams gave evidence that, in early September 2006, the police contacted Rebekah Brooks (then editor of The Sun) to notify her that she was a potential victim of voicemail interception and to ascertain whether she wanted to make a formal complaint in that capacity.192 An email, dated 15 September 2006, sent by Andy Coulson to Tom Crone after this meeting, which set out what Mrs Brooks had been told "by the cops", has generated a number of concerns.193 On the face of the email, it appeared that the police had given Mrs Brooks details of the prosecution strategy over and above that which any other victim of crime could expect to be given and it is suggested that, in so doing, the police were improperly alerting her to the state of the investigation by the MPS, inviting her to take action internally. Further, the last sentence of the email ("They are going to contact RW today to see if she wishes to take it further") could be interpreted as meaning that the police were asking her whether she wanted the police to take further the investigation into others within NI.194

3.25 Again, I can well understand how this second hand summary of the conversation, reduced E

into an email, can give the impression of collusion but, having heard DCS Williams' evidence on this issue, I am satisfied that Mrs Brooks was contacted by the police because she, too, had been a victim of extensive voicemail interception (with her voicemails having been accessed up to twice a week). I also accept that information was passed to Mrs Brooks not as a result of an improper relationship with the police but with a view to her making a formal complaint and consenting to being part of the prosecution.195 This is the context in which one must view the final line of the email. As DCS Williams said: "This is purely: you are a potential victim. Would you like to join our prosecution?"196

3.26 The same email also referred to Mr Mulcaire receiving payments totalling over £1 million.

In evidence, DCS Williams said that the figure of £1 million was not known to him or his investigation team.197 Since the £1 million figure is not supported by evidence available contemporaneously or subsequently it is simply not clear where this figure came from. Again, the present investigation and prosecution precludes any further investigation of this issue.

3.27 Fitting within the general chronology, it is relevant to note two engagements between NI

and senior officers of the MPS. The first was on 19 September 2006 when Lord Blair, with Mr Fedorcio, met Andy Coulson. Whilst there could well be a concern that this meeting provided the opportunity for the exercise of inappropriate influence over the police investigation (and perhaps rather more thought should have been given to the perception that could result from the meeting), there is not the slightest evidence that this was a reality. As I have set out above, Lord Blair played no part in the decision-making process; his involvement did not go beyond receiving limited briefings from Mr Hayman and Mr Clarke. The second was on

302

26 October 2006 and consisted of a two hour, early evening, meeting between Mr Hayman and Neil Wallis. The problem of perception (and the question of the extent to which that perception was considered) recurs. Again, there is no evidential basis for concluding that this meeting impacted in any way on the police investigation.

The approach of Burton Copeland

3.28 In order to obtain relevant evidence from NI, the CPS advised the police to enter into

correspondence with them (though Burton Copeland). This was because the legislative provisions for obtaining a production order, which would require NI to produce journalistic material to the police or provide the police with access to it required other methods to have been tried without success or that it be established that such methods were bound to fail.198 Thus, a court would be unlikely to make a production order, requiring a person or organisation to hand over such journalistic material, if it were satisfied that the person or organisation in possession of the material appeared to be cooperating with the police.

3.29 In the light of the fact that NI had instructed Burton Copeland to respond to police requests, the officers sought their cooperation and assistance, through Burton Copeland, in relation to E a number of evidential matters.

3.30 The investigators were keen to identify who would have used the hub phone at the NoTW

that had been used hundreds of times to call the voicemail boxes of individuals not associated with the Royal Household.199 DI Maberly approached Vodafone who told him that he would have to get that information from the NoTW.200 Mr Bristowe (the prosecution's telephone expert) advised DI Maberly that no large firm would have unaccounted for billing, because it would want to monitor the use of the phone systems by staff, to detect any abuses. The police therefore had an expectation that NI would be able to identify the user of the hub phone in question.201

3.31 DCS Surtees tasked DI Maberly with writing to the NoTW for the purposes of ascertaining

who would have used the hub phone and obtaining further evidence against Mr Mulcaire and Mr Goodman, but also to gather evidence of the involvement of other journalists or editorial staff in the conspiracy with Mr Mulcaire.202

3.32 On 31 August 2006 DI Maberly attended Burton Copeland's offices and made a number of

requests for information.203 That same day Burton Copeland wrote a letter to the police, apparently stating an intention to cooperate fully with all their reasonable requests for information:204

"On behalf of my clients, Newsgroup Newspapers Ltd, I would wish to make it plain that in connection with the enquiries that you are presently conducting and which are referred to in the Application under the Schedule 1 of the Police and Criminal

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Evidence Act (PACE Application) … that my clients intend to provide such material as you or your colleagues might reasonably require from them in connection with your enquiries."

3.33 In that letter Burton Copeland referred to the "PACE application" (the application for a production order drafted by Mr Mably) and the fact that the police sought:

"all paid cheques, credit/debit slips, mandates, statements of accounts, inter-account and telegraphic transfers, any other vouchers in relation to the following financial accounts. Account numbers … sort code … or payment to any other bank accounts held in the name of Glenn Mulcaire, Nine Consultancy Ltd or Nine Consultancy UK Ltd and any cash payments made by or on behalf of News International or Newsgroup Newspaper to Glenn Mulcaire from 1 January 2005 present [sic]".205 Burton Copeland enclosed a file labelled "Newsgroup International – Payments to Nine Consultancy Ltd" which they asserted contained the requested information and included in particular:206

"1. A schedule that has been created from the records maintained of all payments to the accounts referred to in the PACE Application; 2. The appropriate BACS Telecom Acceptance Advice relating to payments to be E included in the payment schedule; 3. The redacted payment schedule which highlights each payment to Nine Consultancy Ltd; The appropriate copy invoice in respect of each payment included in the schedule referred to in 1 above."

3.34 DI Maberly also followed up the meeting with a letter, which he delivered to Burton Copeland's

offices on 7 September 2006.207 In that letter he confirmed what he had requested.208 Those requests included:209

(a) A floor plan to include the locations of the telephone extensions in Mr Goodman's office; (b) Details of the phones used regularly by Mr Goodman (i.e. the number of the phone on his desk or any mobile issued to him by the company); (c) Itemised billing for phones used regularly by Goodman (i.e. the phone on his desk and any other mobile phone issued to him) for the period of 1st December 2005 to 8th August 2006; (d) Records of any work completed by Mr Mulcaire/Nine Consultancy for Mr Goodman or other editors/journalists. (e) Records of any work completed

3.35 DI Maberly stated in the letter that:

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"The investigation is attempting to identify all persons that may be involved including any fellow conspirators. Therefore we require the telephone numbers of persons called before and after relevant unlawful calls to the voice mailboxes."

3.36 On 15 September 2006 DI Maberly hand delivered a further letter to Burton Copeland which included the following:210

"During the search of Mr Goodman's offices at News International he identified the computer used by him (situated on his desk) and a safe also used by him (situated under his desk). These items were not seized or searched but were subject to a retention request. In relation to these two items I would like to be provided with a copy of information held on computer (including any mainframe database accessed from the desktop computer) and any information held in the safe that relates to the following; Material relating to any mobile telephone numbers that may [sic] connected to the interception of voicemail accounts (e.g. written notes, data files, cassette/ digital recordings etc) … Material relating to any voicemail(s) that may have been listened to (e.g. written

E notes, data files, cassette/digital recordings etc) …

Evidence of contact between Mr Clive Goodman, Mr Glenn Mulcaire, Mr Paul Williams, Nine Consultancy … and any others (whether directly or indirectly employed by News International) relating to the interception of voicemail(s)".

3.37 Burton Copeland had drafted a letter dated 14 September 2006, which they gave to DI

Maberly when he visited their premises on 15 September 2006. It stated the following:211

"Newsgroup Newspapers are anxious to provide all material reasonably required in respect of your investigation into voicemail interception offences. We stress, however, that the procedure under Part 2 of the 1984 Act is a procedure designed to produce documentation or other material in the possession of an individual. It is not a procedure designed to elicit answers other than those contained within such material. "In fact, very little documentary or other material in relation to Mr Mulcaire, Nine Consultancy Ltd or Mr Goodman exists. This is entirely consistent with normal business practices in relation to the use of such consultants. "Attached to this letter are copies of all documents held by Newsgroup Newspapers falling within the terms of your request. This comprises copy documentation relating to the contract of employment between Nine Consultancy Ltd and NOTW. Extensive searches have revealed the existence of only one piece of paper, enclosed herewith. "No documents exist recording any work completed by Mr Mulcaire, monitoring of Mr Mulcaire's return of work, reporting structures or any persons for whom Mr Mulcaire may have provided information. There is no floor plan. The telephone system installed at Newsgroup Newspapers does not provide an itemised breakdown in respect of any particular extension number… "Newsgroup Newspapers wishes fully to assist your investigation and does not require any formal Court Order for the provision of any material. They are, however, entirely satisfied that the material to which you are entitled is limited and that you

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are now, along with material previously submitted, in possession of all relevant documentation…"

3.38 It is interesting to note that Burton Copeland were precise in seeking to confine the entitlement

of the police to documents "in the possession of an individual" as opposed to documents held by NI generally. In my judgment this is an artificial and inapt distinction: by way of example, there must have been an internal telephone directory for the NoTW and documentation that could have led the police (perhaps through the telephone network if the records were not kept) to trace which extensions were dialling which numbers. DCS Williams, DCS Surtees and DI Maberly all formed the impression that whilst Burton Copeland were protesting that they were cooperating, the reality was the opposite.212 In evidence DI Maberly agreed that he was very suspicious that he was being "fobbed off".213

3.39 After 15 September 2006, no further documents were produced by Burton Copeland.

Ultimately therefore, NI provided the MPS with extremely scant information. The MPS describes this, correctly in my judgment, as a "veneer of cooperation". Despite their protestations to the contrary, NI were not helping the police with their enquiries.

3.40 It is relevant that once NI decided, in January 2011, fully to co-operate with the MPS, that

is exactly what happened and the investigations that have become Operations Weeting, Elveden and Tuleta (with subsidiary operations associated with them) has been the result. E While signalling the intention of NI now to place itself in the position of demonstrating that it takes compliance with the criminal law extremely seriously, it undeniably casts light on what had happened previously. I am not in a position to judge what part, if any, Burton Copeland played in the approach to the police investigation in 2006, what their instructions were or the advice they gave because NI has not waived the legal professional privilege which attaches to this material. As a result, the public can only know what Burton Copeland did and not why they did it.

3.41 Rupert Murdoch's evidence was that when Mr Goodman was arrested he was told, probably

by Les Hinton, then the Executive Chairman of NI, that NI was co-operating with the police.214 In support of the contention that NI was cooperating, Rupert Murdoch referred to appointing "a special law firm to look into this and to aid our co-operation with the police…"215 When he was told, during his evidence, that the Inquiry had heard evidence that the solicitors' firm concerned provided limited documentation216 that did not represent the position at all and that, one way or another, NI was being obstructive Rupert Murdoch said: "That shocks me deeply, and I was unaware of it and I've not heard of it until you've just said that.217

306

3.42 This raises two issues about local management at NI, its internal governance and its

relationship with News Corporation. First, if Rupert Murdoch's evidence is correct, it appears that there was a lack of full transparency between the local management at NI and senior management at News Corporation or, alternatively, a very different understanding of the meaning of the word co-operation. Second the approach taken by NI is far from what might be expected of a well-run corporation. Mr Clarke described a closing of ranks by NI and said that this was "unusual for a major company – where full co-operation would be the norm".218 An organisational culture that is founded on integrity and honesty would require not only full co-operation with law enforcement, but also a determination to expose behaviour that failed to comply with the law. That would normally be achieved through a thorough internal investigation of any allegation, unaffected by the legal constraints that the police might face, in order to ensure that any wrongdoing in the company was uncovered, stopped and dealt with appropriately. What happened at the NoTW in relation to voicemail interception in this context is particularly informative about the culture that pertained both within the corporate and editorial operations.

The report of the High Tech Crime Unit E 3.43 On 23 November 2006, pursuant to a task set by DCS Surtees, the High Tech Crime Unit

of the Directorate of Professional Standards at the MPS produced a report219 setting out the results of the examination of the computers and other storage media seized during the August searches.220 The examination revealed a computerised record of approximately 300 names, addresses, dates of birth, mobile phone numbers and additional information. Many of the names have been redacted to protect the privacy of the individuals concerned, but the unredacted names include: Maria, Charlotte and James Church; Max Clifford; Ashley Cole; Stephen J. Coogan; Cornelia Crisan; George Galloway; Ryan Giggs; James Hewitt; Ulrika Jonsson; Jude Law; Sadie Frost; Elle McPherson; Mark Oaten and Brian Paddick.

3.44 The investigating officers were concerned to discover that within the report were the details

of people who had been given new identities as part of the witness protection programme.221 The extreme sensitivity of this information does not require elaboration. Equally seriously, at the least, it gave rise to the possibility that police officers had been providing information to Mr Mulcaire. Mr Mulcaire was not asked about this in interview and Mr Clarke was not made aware of it.

3.45 DCS Surtees instructed DI Maberly to contact the witness protection unit, provide them with

the list of names and ask them to take whatever action they considered necessary.222 When DI Maberly did so: "it quickly became apparent that contained within were names of interest to [the unit]."223 The SO13 officers did not know what action was taken by the witness protection unit; they left the matter with that unit because it was best placed to decide upon and take

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the appropriate remedial action.224 Mr Clarke agreed that this was the correct way of dealing with the matter.225

3.46 The report of the High Tech Crime Unit included the following statement: "It is also believed

attempts may have been made to corrupt serving police officers and misuse the Police National Computer". It is argued by the Core Participant Victims that the apparent failure to act on this adds to the impression that there were areas of investigation which were highly sensitive and which made the MPS unwilling to probe further. Although I understand the concern, it would not be appropriate for me to go further. Suffice to say, the current criminal investigation continues and my determination not to prejudice that investigation has meant that further detail has not been explored in the evidence. The points that I have made about the individual officers responsible for the conduct of Operation Caryatid are not affected and remain, even if there was some additional thread which could have been followed.

  1. The outcome to the prosecution

The criminal proceedings 4.1 The indictment brought against Mr Mulcaire and Mr Goodman contained the following 16 E counts:

Count 1: Against both, conspiracy to intercept communications contrary to s1(1) of the Criminal Law Act 1977;

Counts 2, 3, 7,10 Financial controls and payments for stories 694 HC Hansard, 20 July 2011, vol 531, col 918; see also columns 922, 941, 944 s17(3) of the Inquiries Act 2005 Centro Europa 7 SRL and Di Stefano v Italy (1Application no. 38433/09) Part 1, Public Order Act 1986; Protection from Harassment Act 1997 p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf PWC adspend study, http://www.iabuk.net/research/library/2012-h1-digital-adspend-results ibid p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lord-Patten1.pdf p2, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_Narrative-on-media- ownership.pdf ibid, p164 p50, paras 107-108, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of- Stephen-Abell.pdf. See pp21-23, para 25, ibid for a complete list of Commissioners/Directors of the PCC p58, lines 17-24, DCI Gilmour, ibid Information Commissioner's Office, What Price Privacy?, p15, para 5.2 During the six years that have elapsed, many of the officers involved in Operation Caryatid have been promoted through the ranks. For the sake of clarity, the Report refers to them throughout by the rank which they held at the time they gave evidence rather than the (sometimes different) ranks that they held at the various times of their involvement in the investigation or may hold at the time of publication of the Report p14, para 39(i), ibid pp31-32, lines 16-19, Gerry and Kate McCann, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-23-November-2011.pdf p52, lines 14-17, Dominic Mohan, ibid Part F, Chapter 6 p6, lines 5-8, James Murdoch, ibid p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Morning-Hearing-9-May-2012. pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-DCI-John-Macdonald.pdf pp22-23, lines 18-7, Charlotte Church, ibid pp117-118, lines 12-2, ibid p27, HMIC (2011), Without Fear or Favour: A review of police relationships, http://www.hmic.gov.uk/media/a- review-of-police-relationships-20111213.pdf p2, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Sandra-Laville. pdf p70, lines 3-14, James Murray, ibid MPS Special Notice 6/01 referred to at paragraph 2.23, Part G, Chapter 3 above pp55-56, Francis Aldhouse, www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning- Hearing-5-December-2011.pdf p38, lines 3-6, Richard Thomas, ibid pp8-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-2.pdf p15, para 3.26, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf pp54-55, lines 20-9, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Afternoon-Hearing-9-December-2011.pdf Part H, Chapter 6, para 4.9 p3, lines 1-24, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf p68, lines 9-12, Harriet Harman, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-12-June-2012.pdf p4, para 9, ibid pp17-18, ibid p72, lines 18-19, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-24-April-2012.pdf p44, lines 8-10, ibid p9, para 31, ibid p25, para 5.42 ibid pp1-2, para 3 and pp3-4, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness- Statement-of-DAC-Sue-Akers1.pdf Part F, Chapter 7 pp62-64, lines 15-9, Graham Shear, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-21-November-2011.pdf p76, lines 17-20, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-26-April-2012.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-B1.pdf K p5, para 12, ibid p10, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-British-and-Irish-Ombudsman- Association.pdf p81, lines 21-25, Nick Clegg, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-13-June-2012.pdf Part K, Chapter 7 Part K, Chapter 7, para 4.35 Part K, Chapter 7, para 4.26 [2000] 2 AC 115 at 126 and 13: Against both, interception of the voicemail messages of Helen Asprey contrary to s1(1) of RIPA;

Counts 4, 6, 8,11 Treatment of critics 704 http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Ruling-on-the-role-of-the-assessors-PDF-102-KB.pdf s2(1) and (2) of the Inquiries Act 2005 Application 36919/02 Armonienė v Lithuania (25 November 2008), para 39 Part F, Chapter 6 p33, lines 3-12, Professor Susan Mendus, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/ Transcript-of-Morning-Hearing-16-July-2012.pdf pp83-84, lines 11-3, Sly Bailey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-16-January-20121.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; p3, para 6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Witness-Statement-of-Lord-Patten1.pdf Part I, Chapter 5 Great Britain (1949) Op cit, p172 p59, lines 1-2, Lord Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon- Hearing-31-January-2012.pdf p48, lines 16-21, DCI Gilmour, ibid p23, lines 12-22, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Afternoon-Hearing-30-November-2011.pdf; pp6-7, para 4.4, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Alexander-Owens1.pdf p34, para 65, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Peter-Clarke.pdf p15, para 39(iv), ibid pp74-75, lines 13-4, Bob and Sally Dowler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Transcript-of-Morning-Hearing-21-November-2011.pdf pp121-122, lines 24-3, Dominic Mohan, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript- of-Afternoon-Hearing-7-February-2012.pdf Part E, Chapter 4 p13, lines 17-20, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-14-November-2011.pdf p16, lines 1-6, Robert Jay QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-9-May-2012.pdf; http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness- Statement-of-DCI-John-Macdonald.pdf pp42-43, lines 24-12, Paul McMullan, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Afternoon-Hearing-29-November-2011.pdf p14 lines 3-21, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of-Afternoon- Hearing-12-January-2012.pdf; p115, lines 14-25, Hugh Whittow, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-12-January-2012.pdf; p30, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Lord-Macdonald-QC1. pdf p23, lines 10-11, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-6-March-20122.pdf p66, lines 6-14, Chief Constable Stephen House, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/ Transcript-of-Morning-Hearing-21-March-2012.pdf Part G Chapter 3 Section 2 p30, lines 5-6, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf p47, lines 14-16, Richard Thomas, ibid pp40-41, lines 12-3, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/ Transcript-of-Afternoon-Hearing-30-November-2011.pdf; pp13-14, http://www.levesoninquiry.org.uk/wp-content/ uploads/2011/11/Witness-Statement-of-Alexander-Owens1.pdf p25, para 6.8, ibid p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement-of-John-Witherow. pdf Part H, Chapter 5, para 2.64 p36, lines 22-24, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p4, Jack Straw, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Jack-Straw- MP.pdf pp12-13, para 33, ibid pp14-15, ibid p48, Dr Vince Cable, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-VC1-2.pdf pp17-18, lines 11-1, ibid pp9-10, para 32, ibid p5-6, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Robin-Foster.pdf pp12-13, lines 24-8, Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-6-February-2012.pdf http://www.judiciary.gov.uk/NR/rdonlyres/8EB9F3F3-9C4A-4139-8A93-56F09672EB6A/0/jacksonfinalreport140110. pdf p16, para 4.5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Ofcom-Measuring- Media-Plurality1.pdf K http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-D1.pdf p6, para 16, ibid p11, para 3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Coordinating- Committee-for-Media-Reform.pdf; p2 http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Sumission- from-Jeremy-Hunt-MP.pdf p3, para 5, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Professor-John-Horgan- Irish-Press-Ombudsman.pdf p4, para 1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Ed-Miliband.pdf p74, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Media-Standards-Trust.pdf Part F, Chapter 6, paras 4.6 and 5.19 Part K, Chapter 7, para 4.30 L 1804 See Application 6538/74, Sunday Times v United Kingdom (1979) 2 EHRR 245 at paras 65-66 and 14: Against both, interception of the voicemail messages of Jamie Lowther-Pinkerton contrary to s1(1) of RIPA;

Counts 5, 9,12 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) and 15: Against both, interception of the voicemail messages of Paddy Haverson contrary to s1(1) of RIPA;

Counts 16-20: Against Mr Mulcaire only, interception of the voicemail messages of Max Clifford, Skylet Andrew, Graham Taylor, Simon Hughes and Elle Macpherson respectively contrary to s1(1) of RIPA.

4.2 Mr Perry explained that counts 2 to 15 were substantive allegations intended as an alternative

to count 1 which charged the underlying criminal conspiracy; in relation to all the substantive counts, there was not necessarily the evidence available to prove that the voicemails had been listened to before their intended recipients.226 Counts 16 to 20 were individual substantive charges intended to reflect the further criminality.

4.3 On 29 November 2006, at the Plea and Case Management hearing conducted at the Central

Criminal Court, Mr Goodman and Mr Mulcaire pleaded guilty to the main counts on the indictment. Although it might be legitimate to conclude that the lawyers acting for the men had

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no confidence in the possible success of any argument relating to the correct interpretation of s1 of RIPA, the fact is that it was simply never tested. On 26 January 2007, Mr Justice Gross sentenced Mr Goodman and Mr Mulcaire to four and six months' imprisonment respectively.

4.4 At the sentencing hearing, during the course of his plea in mitigation, counsel for Mr Mulcaire

asserted that his client was working for others at NI in relation to the interceptions which formed the basis of counts 16 to 20. He said, in terms: "This information would have been passed on not to Mr Goodman – I stress the point – but to the same organisation".227

4.5 Although this has been a matter of some debate, the point has already been made that

Mr Goodman had no specific interest (perhaps with some limited exceptions) in the non- Royal material, and it is clear that the evidential links between the two men which had been present for the Royal interceptions were not available for the others. Yet, Mr Mulcaire must have been working for someone. Mr Justice Gross picked up on this submission in his own sentencing remarks. He said: "As to Counts 16-20, you had not dealt with Goodman but with others at News International".228

4.6 Although Mr Perry rightly pointed out that the judge did not reach this conclusion as a result of any submission he had made during the course of opening the case that morning, he readily E accepted that the judge was not simply relying on the submissions of Mr Mulcaire's counsel

but also on "a bit of common sense added in".229 It is right to observe that Mr Perry added in his witness statement that: "… reading the transcript now does not convey the implication that other individuals were necessarily involved in unlawful interception (as opposed to receiving information)."230 http://www.ipcmedia.com/about/ para 18, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-David-Perry-QC.pdf pp15-16, lines 19-3, Neville Thurlbeck, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Afternoon-Hearing-12-December-20111.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-Jillian-Anne-Brady1.pdf p10, paras 34-35, ibid p10, para 26, David Cameron, ibid p1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-TJ93-to-Witness-Statement-of-Tessa- Jowell1.pdf pp123 – 130, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-JH1- MOD300004241-MOD300004682-docs-1-52.pdf p9, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Sir-Christopher-Meyer. pdf p19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Witness-Statement-of-Dr-Neil-Manson.pdf paras 136-137, ibid This may be right, but again common sense would strongly indicate that the other individuals were aware of the source of the information they had received from Mr Mulcaire and it is difficult to postulate that Mr Mulcaire was simply offering information without being encouraged or prompted.

4.7 Mr Justice Gross also referred in his sentencing remarks to the fact that Mr Goodman had

offered by way of mitigation that he "operated in an environment in which ethical lines are not clearly defined or observed".231 From the perspective of the management at NI, the sentencing remarks ought to have raised serious alarm bells that there may have been other journalists in the newsroom engaging in illegal or unethical activity; what otherwise should have been needed to launch a full scale review into every aspect of the work that Glenn Mulcaire had done for the NoTW?

  1. Subsequent operational decisions

5.1 One of the most serious allegations against the police relates to the deliberate decision

effectively to shut down Operation Caryatid when it is argued that there was clearly much more that could have been uncovered. It is suggested that the decision not to pursue further investigations could have been affected by the relationship between the officers of the MPS and NI or, in other words, had not been taken in good faith or for good operational reasons. Similar concerns (examined in the next section) deal with the strategy adopted to deal with the aftermath of the investigation, particularly in relation to victims or potential victims.

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Chapter 4 | Phone Hacking: The Expanding Impact of Operation Caryatid

5.2 In the circumstances, it has been necessary to investigate in detail the circumstances in

which the police reached the decision not to take Operation Caryatid further. This involves an understanding of the police operational background at the time of the investigation, and an analysis of the evidential issues concerning the police along the possible next steps that could have been taken.

The background 5.3 Police resources are finite and the decision not to widen the Operation Caryatid investigation

cannot properly be understood without a full understanding of the operational context at the time. More specifically, for what had been SO13, whose primary commitment was to counter terrorism, the issue was the scale and immediacy of the threat from terrorism at the time and the massive pressure on resources that it entailed. It is of such importance that it is worth quoting extensively from the statement made by Mr Clarke:232

"72… Throughout much of 2002 and running into 2003 an operation called Springbourne taught us that there was a real and immediate threat within the UK from Islamist terrorists … "73. During 2003-2004 there was an accelerating tempo of terrorist investigations … E There were many other strands of intelligence that showed the threat to the UK from Islamist terrorism was not only a reality, but growing in intensity. "74. In 2004, there was a major escalation in our understanding of the scale and nature of terrorist plotting in the UK with the discovery, early in the year that a group of British citizens were planning to make and detonate a large bomb. This required what was then the largest ever UK surveillance operation to control the threat posed by the plotters and to gather evidence to convict them. This operation was called Operation Crevice … "75. Later in 2004, there was another major investigation called Operation Rhyme which dismantled a terrorist network led by a veteran jihadist called Dhiren Barot, whose ambition was to mount attacks, including the use of radiological devices, both in the US and the UK. Both of these cases led to multi-defendant prosecutions which in all took over three years to come to a conclusion, and devoured huge amounts of investigative resource throughout that time. "76. These cases and others showed a clear intention on the part of terrorists to attack the UK mainland to try to kill as many people as possible whenever possible … "78. In July 2005, despite the best efforts of the UK counter terrorist community, London was twice attacked to devastating effect. The subsequent criminal investigation was the largest ever carried out in the UK, drawing in detective resources from across the country, and in effect lasted right through until the Inquest into the deaths of the victims of the 7/7 attacks was concluded in 2011. "79. By early 2006, at exactly the time Operation Caryatid was developing, Operation Overt began. This was the next in line of what seemed like an interminable series of potentially devastating plots. This one turned out to be a plan to blow up, simultaneously, a number of transatlantic airliners en route from the UK to the USA … As with other major terrorist cases, the prosecutions in Operation Overt took a long time to come to fruition. In fact they took some 4 years and were spread over 7

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separate trials. This all needed a massive commitment of officers from the Counter Terrorism Command (SO15). "80. The impact of this was that those of us who were charged with protecting the public from the effects of terrorism were more than fully committed on matters that directly affected the safety of the British public. Not only were we continually 'borrowing' colleagues from other parts of the MPS, we also drafted in large numbers of officers from across the country. The impact of this on other policing operations was at times severe. For instance, during the surveillance operation in support of Operation Crevice in early 2004, every available surveillance team from within the MPS and indeed beyond was used on the enquiry. Investigations into drug trafficking, murder and other serious crime, including internal corruption enquiries, came second to the need to protect the public from terrorism. "81. Despite all the support that was received throughout these years, and particularly after the attacks on London in 2005, by the time Goodman and Mulcaire were arrested in August 2006 the Anti-Terrorist Branch (SO13) had some 70 live terrorist cases on its books, but insufficient resources to investigate them all. There was prioritisation even with life threatening terrorist cases, and that is the context within which the decisions that were taken to investigate possible invasions of privacy under Operation Caryatid

E must be considered."

5.4 Elaborating on this statement, it is clear that, since 2004, there had been repeated attempts

by Al-Qaeda networks to commit mass casualty suicide attacks. These included the fertiliser bomb plot (Operation Crevice) and Dhiren Barot and the dirty bomb plots (Operation Rhyme).233 On 7 July and 21 July 2005, there was a series of coordinated suicide terrorist attacks and follow up attacks. Operation Crevice alone used every single surveillance team in London and most of those from the areas around London and Mr Clarke had "borrowed" over 1,000 officers from other forces to support the investigation into the attacks on 7 July 2005. By January 2007,200 p4, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Nicole- Patterson.pdf pp83-84, lines 24-4, Mark Maberly, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-29-February-2012.pdf p52, lines 20-22, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-9-February-2012.pdf pp13-14, lines 19-13, Jon Witherow, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-17-January-2012.pdf p22, para 56, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns. pdf pp19-20, lines 3-7, Assistant Commissioner Cressida Dick, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/03/Transcript-of-Morning-Hearing-12-March-2012.pdf p40, para 117, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David- Cameron-MP.pdf; p4 of Plurality in a new media age p1, ibid pp43-44, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Afternoon-Hearing-11-June-2012.pdf p111, lines 23-24, ibid p6, ibid K Applications 40660/08 and 60641/08, (2012) 55 EHRR 15 highly experienced and specialised officers continued to be on loan for this work.234 Mr Hayman described in evidence the terrorist threat as "unprecedented".235

5.5 Lord Reid, endorsed the evidence of the police, saying that the scale of the terrorist threat and

ensuing counter-terrorist operations had been "well set out by others who had testified".236 He explained that the threat level of a terrorist attack during 2006 varied only from the second highest level, "Severe", to the highest, "Critical", where an attack was deemed likely and imminent. He said the great fear of a terrorist attack at that time was "superseding everything else".237

5.6 This background is critical to an understanding of the operational context in which Mr Clarke

had to consider whether and, if so, to what extent the investigation should continue beyond the very targeted prosecution of Mr Goodman and Mr Mulcaire. Resources, however, were not the only problem.

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Chapter 4 | Phone Hacking: The Expanding Impact of Operation Caryatid

The evidential issues 5.7 By mid-September 2006, the police had tried, without success, to obtain evidence from NI

to support their strong suspicion that NoTW staff (other than Mr Goodman) were involved in a conspiracy to intercept voicemail messages. The investigators, including DCS Williams,238 did not dispute, however, that they had material that implicated other journalists and investigative leads that could have been followed. The following is a stock-take of the matters the investigators had specifically identified by that time.

5.8 The 11,000 pages of documents seized from Mr Mulcaire, taken together with the pattern

of behaviour demonstrated by the call data obtained, created a picture of a trade craft, of someone who was building up the means unlawfully to access voicemail messages (and that in some cases he had utilised those means).

5.9 There was an inference that the "corner names" (so described because they were written

in the corner of Mr Mulcaire's notes) were those who had either instructed Mr Mulcaire or those who were the intended recipients of the information, or both. Not only did "Clive" appear as a corner name in relation to the Royal Household voicemail message interceptions but there were corner names associated with counts 16 to 20 on the indictment. E

5.10 The hub phone at the NoTW had been used hundreds of times to call the voicemail boxes of individuals not related to the Royal Household.239

5.11 The phone records of Mr Mulcaire taken together with his papers (in which he had recorded

the mobile phone numbers of other journalists) demonstrated that Mr Mulcaire had made calls to journalists other than Mr Goodman.240

5.12 The lack of cooperation on the part of NI with the investigation (both by interfering with the

search of the Wapping offices and in their response, through Burton Copeland, to requests for documents and information which might implicate others at NI) bolstered the belief that the criminality permeated wider within NI than just Mr Goodman.

5.13 There were financial and editorial evidential leads available to the police relating to published articles and payments for them.

5.14 DCS Williams was correct to assert that in order to prosecute any of the individuals referred

to by the corner names he would have needed to be in a position to prove cogently who they were241 and that they had requested or received the information in the knowledge that Mr Mulcaire obtained information through voicemail interception.242 He explained that what was absent from the seized material was any specific instructions to Mr Mulcaire to undertake any criminal activity that could be connected to a particular person, or "what it was he did and who he sent it to and how he billed it ..."243

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5.15 During his evidence, however, DCS Williams appeared to assert, that there was "no evidence"

that other journalists were involved. For instance, it was put to him that it was likely, or at least a plausible picture, that Mr Mulcaire said to the journalist on the phone: "I've listened to celebrity X's voicemail and this is what I can tell you is on the voicemail." DCS Williams agreed that it was a plausible picture but stated that he had no evidence of that to put before a court.244 This has caused concern that DCS Williams failed to recognise the evidential value of the matters the police had established.

5.16 DCS Williams is emphatic that his use of the expression "no evidence" has been taken out of

context and that he did not mean that there was no evidence whatsoever, but rather that such material as had been collected, was insufficient to prosecute. Given that DCS Williams was plainly aware of the material that pointed towards other journalists and was correct in his assessment that a considerable amount of further work would have had to be done before a further prosecution could have been contemplated; I am prepared to accept his submissions on this issue. Had he not been aware of the potential value of the evidential leads, he would not have considered it necessary to ask Mr Clarke to decide whether further resources should be committed to the investigation. DCS Williams may not have labelled or analysed the material in his own mind as circumstantial or inferential evidence but it would be wrong to find, in 2006 at least, that he did not appreciate that there was "some evidence";

E as the section below demonstrates, however, that made no difference to the decision made by Mr Clarke.

5.17 Similarly, in his evidence DI Maberly explained that he believed that three of the corner

names in particular were the names of journalists at the NoTW245 but went on to say: "We had some inference; we had no evidence".246 When pressed, he agreed that there was circumstantial evidence, but went on to say (as is undoubtedly the case) that he would have needed something more substantial in order to obtain a conviction.

5.18 I conclude this section by emphasising that it would not be fair to seek to infer from the fact

that a number of prosecutions are now being undertaken that the conclusions then reached by the officers were wrong, let alone that they were not objectively and fairly reached. It is obviously important not to prejudice or appear to pre-judge the criminal process by expressing too robust a view of the material then (or now) available. There was, in my judgment, more than enough in the Mulcaire documents to justify further work which could, itself, have led to further evidence being uncovered, but that is a long way from saying that it would then have been appropriate to go further; it is even further removed from being able to suggest that the decision not to do so was wrong.

The decision

5.19 If the investigation was to continue, DCS Williams was of the view that the next step would be a detailed analysis of the documents seized from Mr Mulcaire. He said:247

"I knew that we would need to go through that material again, and that we would have to do all the research in exactly the same way we'd done around the phone

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works to see what that showed. Then I would have a better picture of is there actually something here that I can either take to a judge in a production order or, probably more realistically, I would have taken that investigation forward, assuming that there is something more in that material, in terms of arresting people."

5.20 DCS Surtees was also of the view that pursuing the evidential leads would have required a

"step-change" in the investigation, which would include a thorough analysis of the material seized from Mr Mulcaire. For instance, he considered that the "guilty knowledge" of those identified by the corner names would be difficult to prove and would require a full scale criminal investigation sanctioned by senior officers in SO13.248 He said:249

"… in terms of widening the suspect pool, that is a protracted piece of work, because we'd have to go through the whole process again of trying to identify, et cetera."

5.21 This analysis of the material seized would have to have preceded an application for a

production order because the court would expect the police to have a clear idea of what they already had in their possession before seeking to compel the production of journalistic material. The law requires the police to make proportionate applications, which focus on what is strictly required. The law does not permit wide-ranging, speculative "fishing expeditions".250 The Operation Caryatid investigators would not have been in a position to identify what was strictly required until they had ascertained what evidence they already had.251 E

5.22 Against that background, DCS Williams and DCS Surtees briefed Mr Clarke, Commander

McDowell and DCS White as to the current state of the evidence. DCS Williams said that senior management were aware that the investigators believed that NI had not been cooperating with the investigation. DCS Surtees said that during the briefing:252

"… it was made very clear that, given the unprecedented amount of operations currently live within SO13 and the huge demand this was having on the CT command, this matter was not to be investigated beyond the original parameters. Moreover, all efforts were put into preparing the prosecution case to ensure the conviction of Mulcaire and Goodman."

5.23 Mr Clarke explained that in order properly to analyse the material and to be in a position to

present it as evidence in a prosecution, it would have been necessary to index the material (manually, because at that time there was no way of scanning documents onto the HOLMES system); cross-reference it; research every phone number and subject it to an individual RIPA application to obtain data; and then analyse that data.253 Mr Clarke said that it would have been an "an enormous undertaking".254

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5.24 On the question of the possibility of requesting support from elsewhere in the police service,

Mr Clarke quoted in his witness statement from his evidence before the Home Affairs Select Committee in July 2011:

"I took the view that it would be completely unrealistic, given that we were heading towards a prosecution of Goodman and Mulcaire, to then go to another department and say, 'We've got a prosecution running. We have a huge amount of material here that needs analysing. We don't know, given the uncertainties of the legal advice, whether there will be further offences coming from this or not. Would you like to devote 50, 60,70 ibid Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2012, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/07/Claire-Enders-Competitive-pressures-on-the-press.pdf http://www.pcc.org.uk/ pp33-34, lines 19-5, Lord Black, ibid pp31-32, lines 22-10, Peter Clarke, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-1-March-2012.pdf p48, lines 12-19, DAC Sue Akers, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/lev270212am.pdf p75, lines 11-18, Pam Surphlis, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Afternoon-Hearing-8-February-2012.pdf p2, para 10, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Witness-Statement-of-Colin-Myler1.pdf http://www.guardian.co.uk/media/greenslade/2011/jul/29/joanna-yeates-national-newspapers p3, ibid p3, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Chief-Constable-Simon- Ash.pdf p47, lines 20-21, ibid pp10-11, lines 23-4, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript- of-Afternoon-Hearing-9-December-2011.pdf pp57-58, lines 14-4, George Osborne, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript- of-Afternoon-Hearing-11-June-2012.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-1-S-Dorrell.pdf pp129-138; 142-143; 151-155; 178-179; 238, ibid p45, lines 11-20, Lord Wakeham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-15-May-2012.pdf p3, para 15, ibid pp52-53, lines 19-7, Lord Black, ibid The Rank Group plc (Joined Cases C 259/10 and C260/10) p80, lines 6-10, Lara Fielden, ibid Part J, Chapter 2, para 9.11 [2002] UKHL 29 at para 38 officers for a protracted period to do this?' I took the judgment that that would be an unreasonable request and so I didn't make it."

5.25 Mr Clarke gave more detail about his rationale in his witness statement:255

"… First, given the wider context of counter terrorist operations that posed an immediate threat to the British public, when set against a criminal course of conduct that involved gross breaches of privacy but no apparent threat of physical harm to the public, I could not justify the huge expenditure of resources this would entail over an inevitably protracted period. Instead a team of officers were detailed to examine

E the documents for any further evidence, and to identify potential victims where there

might be security concerns. "Secondly, the original objectives of the investigation could be achieved through the following measures: The very public prosecution and imprisonment of a senior journalist from a national newspaper for these offences; "Collaboration with the mobile phone industry to prevent such invasions of privacy in the future; and Briefings to Government, including the Home Office and Cabinet Office designed to alert them to this activity and to ensure that national security concerns could be addressed."

5.26 He added in evidence that the investigation "… was, to be honest, not anywhere near the

top of our level – our concerns because, remember, we are dealing with the airline plot and a whole range of other terrorist operations at that time".256

5.27 A legitimate concern has been expressed that Mr Clarke's decision was underpinned by a

briefing from DCS Williams,257 and therefore that he might have been told by DCS Williams that the investigation had uncovered "no evidence" implicating other journalists, or, if DCS Williams at least mentioned the evidential leads (which, as it happens, I do not doubt that he did), he would have expressed a cautious view of their potential value or viability. The first point to note is that throughout the investigation Mr Clarke (and indeed DCS White and Commander McDowell) received regular briefings, from both DCS Williams and DCS Surtees, at which the evidence and potential direction of the investigation were discussed (and at which decisions were made to limit the investigation). It is therefore not the case that before

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being briefed in September/October 2006 Mr Clarke had no idea of the potential evidential leads.258

5.28 The precise content of the briefing received by Mr Clarke cannot now be ascertained, but the

evidence given by Mr Clarke demonstrates that even with the fullest understanding of the quality of the evidence, his decision would have been the same. His reaction to questions on this issue was that he had enough information to make a properly informed decision:259

"Even though I didn't know some of the intimate details of the case, and indeed details which, with hindsight, you could say were very important, I still think I had enough information available to me to make the overall decision about the future direction of the inquiry, because I still can't see any way in which we could have done that without exhaustive analysis of all of that material."

5.29 Mr Clarke agreed that it probably followed that even if one could fairly characterise the

evidence, particularly in relation to the three journalists, as strong circumstantial or inferential, that his decision not to pursue them would have been exactly the same:260

"… Strong circumstantial evidence in terms of trying to prove a conspiracy within a major newspaper group, it might – it won't get you, I would suggest, it would be very unlikely to get you to the position of a successful prosecution." E

5.30 He was asked whether from reviewing the decision logs in preparation for the Select Committee

hearing and having heard some of the evidence from the investigating officers during the Inquiry, he had a different impression or understanding of the quality of the evidence insofar as other journalists were concerned. Mr Clarke answered as follows:261

"It's told me that there's more information there … What I can say is that I haven't seen anything which would cause me to make a different decision than the one I did then in terms of the allocation and resources, and I say that because we referred earlier to the overall strategy, which was to try to bring this criminality to an end by the prosecution of a senior, high-profile journalist, through working with the industry and through passing information to government."

5.31 I asked Mr Clarke whether, in fact, the decision was not even close, not because of the quality

of the evidence but because he was coping with 70 terrorist operations on a monumental scale. Mr Clarke said that this was very close to being "spot on":262

"… because the minutiae of whether there was circumstantial evidence against journalist A, B or C is a minor consideration in comparison with the consideration of what poses a threat to the lives of the British public. Invasions of privacy are odious, obviously. They can be extraordinarily distressing and at time they can be illegal, but, to put it bluntly, they don't kill you. Terrorists do."

5.32 Mr Clarke continued by explaining that it would have taken "a huge amount of very strong,

compelling evidence to persuade me that we should take a different course". Even that, however, would not have guaranteed that the matter would have been investigated further, only that he would have had better grounds to approach another part of the police service

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and suggest that the enormous resources required should be dedicated to the problem.263 Mr Clarke said:264

"If officers had come to me and said: 'Look, we have very clear technical evidence here that these journalists are involved in phone hacking', that would have given me something more then to try to move the operation somewhere else, something to explain to colleagues why they should devote their own precious resources to what would inevitably be an enormous operation, but that simply wasn't there."

5.33 It is also worth noting that both the SIO and his deputy clearly agreed with Mr Clarke's decision. DCS Williams put it this way:265

"… ultimately the decision was Mr Clarke's and I have worked with him since 2004. He is the most professional man that I've ever worked for, and I have absolute confidence in his integrity. I totally agreed with his decision-making. We were all acutely aware of the very difficult decisions that ultimately he would have to make and the rationale for it, and I do agree with it."

5.34 DCS Surtees also agreed, stating that given the 70 priority terrorism investigations on-going at that time: "… it would have been absolute folly to prioritise the outstanding parts of this E investigation to the detriment of the life threatening investigations."266 p4, para 16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lloyd-Embley.pdf p31, para 64, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-DCS-Keith- Surtees.pdf p42, lines 14-17, Tom Crone, ibid para 11, judgment of Mr Justice Tugendhat, Ting Lan Hong v XYZ and others [2011] EWHC 2995 QB, http://www. judiciary.gov.uk/Resources/JCO/Documents/Judgments/ting-lan-hong.pdf pp112-113, lines 5-2, Elizabeth Filkin, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript- of-Morning-Hearing-5-March-2012.pdf p98, lines 1-15, Theresa May, ibid pp1-2, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/KRM17-Document-55. pdf pp95-96, lines 25-24, Nick Davies, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Morning-Hearing-29-November-2011.pdf p16, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-British-and-Irish- Ombudsman-Association.pdf He went on to make

it clear that, despite Mr Clarke's evident reputation for integrity, he would not have accepted without challenge what he perceived to be a perverse decision. He said:267

"Had I been concerned about the legitimacy or otherwise of that decision, I would have taken that elsewhere. What I mean by that is I clearly am alive to the fact that we have got lines of investigation that had not been pursued in this case. The lines of investigation could have been pursued, and, as a detective, I would like to have pursued them. If Peter Clarke had made a decision based on resource, and my experience was that there was lots of resource, and I thought the decision was perverse, then I would have taken that elsewhere. That was absolutely not my position when the decision was communicated down to me. I was fully aware of where we were within the anti- terrorism branch or counter terrorism command at that time."

5.35 Neither Mr Hayman nor Lord Blair had any apparent input into this decision. Mr Hayman could

not recall a conversation with Mr Clarke about the possible widening of the investigation to embrace other journalists268 and had not appreciated the significance of what the investigation had turned up at the time (in relation to the number of potential victims and the corner names of journalists). Even if he had, he would have accepted the decision made by Mr Clarke not to widen the investigation because he was one of the people weighing up the competing demands on resources.269

5.36 Lord Blair said that because of the huge pressures from Operation Overt, any conversation about the evidence in Operation Caryatid would have been "way back on the agenda and

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relatively short, particularly because the matter was being successfully dealt with and closed down, and that was how it was – I understood it to be".270 Lord Blair said that it never occurred to him to ask whether there was further evidence of similar offences or offenders and nor was he told that that was the case. He said that these were "fragmentary conversations about something which was considered of relatively minor importance in comparison to the unfolding threats of mass casualty terrorism".271

5.37 Lord Blair expressed the view in his evidence that although the decision Mr Clarke made

was a reasonable one,272 it would have been open to Mr Clarke to escalate the matter to Mr Hayman, the Deputy Commissioner or up to him, any of whom might have decided to hand the investigation to another part of the organisation, possibly the specialist crime directorate, for a scoping study in due course.273 Lord Blair said that:

"It could have been taken out and parked. I just do want to get across that I am not … blaming Peter for this. I am merely saying another course of action could have been taken, and perhaps at that stage the information would have come out about there being lots more names and indications of a lot more people involved and then things would have been very different."274

5.38 Whilst an alternative course may have been available to Mr Clarke, it would not be

right to criticise Mr Clarke in any way for taking that course in the circumstances he has E described. He was an impressive witness. His evidence regarding the terrorist threat to life and his prioritisation decision was given with force and in a convincing manner. I conclude unhesitatingly not only that Mr Clarke was entitled to reach the decision that he did but that, to such extent as it is appropriate for me to express an opinion, he was right to decide that no further anti-terrorist resources would be committed to investigating the breaches of privacy occasioned by voicemail interception. Even if the potency of the potential evidential leads were not explained during the briefing, that fact made no difference to the outcome.

5.39 There was no question that Mr Clarke had to satisfy the demand for resources that the

terrorist threat presented and that he was forced to make resourcing decisions that might not have been justifiable if the quantum of the threat were not so large. It was so clearly the correct decision that there is simply no scope for concluding that the decision was in any way influenced by the relationships between some senior officers and NI staff. I have no doubt, in any event, that Mr Clarke would not have countenanced such a factor having any bearing on his decision-making.275

Recording the decision 5.40 Mr Clarke said that his belief was that, in the final analysis, Commander McDowall and DCS

White would have briefed him and he would have said to them: "Okay, go and see the SIOs,

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tell them that we're not going to go into the enormous exercise that going through all that material would involve".276 Mr Clarke believes that he made this "ultimate decision" around the end of September 2006;277 DCS Williams believed that it was "around September, possibly October".278

5.41 Mr Clarke went on to say that although briefing meetings were not themselves documented

or the subject of minutes, he would expect the product of those meetings to be recorded in the SIO's decision log.279 DCS Williams has contended that it would have been for Mr Clarke, as the decision-maker, to record the decision. In this case, for whatever reason, it did not happen: there is thus no contemporaneous written record of Mr Clarke's decision or its rationale. Neither is this failure simply bureaucratic: in my judgment, it was significant because the absence of any written explanation of the rationale behind the decision but also the evidential stage that the investigation had reached along with details of the outstanding leads may well have had important consequences in 2009, when the then Assistant Commissioner, John Yates, was tasked with establishing the facts around Operation Caryatid.280 It was also important for another reason: it deprived the police of an important protection from allegations of impropriety, which, in this case, have caused serious damage to the reputation of the MPS.

E 5.42 It follows that I entirely endorse Mr Clarke's comment that where the police decide not to

deal with a particular piece of criminality by what might be described as the conventional course of arrest and prosecution, there may be circumstances where the rationale needs to be made clear to others, so that "the sorts of insinuations that have been made about my officers who conducted that inquiry in 2006 can more easily be shown to be baseless."281

5.43 Sir Paul Stephenson made similar comments with which I also completely agree. He said:282

"… what do you then do with those matters that could be part of a criminal investigation, but for very proper resourcing decisions you decide not to take that option, which is not unusual in many investigations, and I think that there are two relevant factors there: one, you have to ensure that if you are taking those matters elsewhere, from a crime prevention perspective or to change behaviour or to deal with victims in a better way, then you have to make sure you land those issues with those other agencies or government. "Secondly … you have to try and ensure, I think, in the future that we make those decisions transparent so they can withstand this level of scrutiny."

Other possible approaches

5.44 The two conclusions that led to the investigation being curtailed were, first, that it would have been essential to undertake a full and detailed analysis of Mr Mulcaire's documentation

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and, second, that considerable resources would have been required to do the work. Having regard to the allegations that have been made, however, it was necessary to test the extent to which those beliefs were both genuine and reasonable: having done so, it is only fair to record the answer. Thus, the officers were asked about the feasibility of investigative steps short of such an analysis.

5.45 They were also asked whether they could have arrested the three journalists from the NoTW

identified by DI Maberly. The four detectives roundly rejected this is as a realistic option on the basis that, in all likelihood, the journalists would have made no comment in interview, as did Mr Goodman and Mr Mulcaire; the police would have been no further forward. In relation to this suggestion, Mr Clarke remarked:283

"Would it be reasonable, bearing in mind that we were being completely thwarted and receiving no co-operation from News International whatsoever, to go out and arrest two or three journalists, invite them to make a full and frank confession of what they'd been doing, because we wouldn't, without analysis of all that material, have substantial issues to put to them? It would be a complete reverse of good investigative practice to do that."

5.46 DCS Williams said:284 E

"My opinion is that to do a proper and professional investigation to interview anyone, it has to be done from a position of knowledge, and that in many investigations simply going and asking someone to give an explanation quite often results in 'no comment', in exactly the same way in my early decision logs I could have gone and seen Mr Goodman and it is highly unlikely that we would have got very far in the investigation."

5.47 DCS Williams continued:285

"This is my personal belief as an investigator, and maybe others will judge my threshold is too high, but given my experience of investigations and presenting a case before a court, I obviously have a personal higher threshold than others as to what I believe in terms of the right thing to do in terms of reasonable ground before I start depriving other people of their liberty. I do understand that you are arguing to me that there is a lower threshold and I could have arrested and interviewed."

5.48 DCS Surtees said:286

"Whilst the most probable explanation for the corner names was that journalists at NOTW were in receipt of this information and that they could be aware of the illegal practises [sic], the difficulty was proving this. This would have meant potentially arresting those journalists listed on Mulcaire's documents. To affect [sic] this there would need to be a full scale criminal investigation."

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5.49 DI Maberly made the following observations on this subject:287

"There would have been aspects of the case that I would have liked to have asked them about, but I had no firm evidence of either their knowledge of voicemail interception or of them tasking Mr Mulcaire. This is something that I would have looked to find before speaking to them, because it would have been the case that, you know, if we did bring them in for questioning, the likelihood is that they would have made no comment, as did the other two employees of News of the World. We would have got nowhere."

5.50 I have no difficulty in accepting that this collective view that there would have been nothing

to gain from arresting the three journalists, without further investigation, was (as Mr Clarke pointed out) in keeping with good investigative practice; it was both reasonable and entirely honestly held.

5.51 As a further possibility, it was put to DCS Williams that he could have asked the NoTW to

provide him with a list of journalists, perhaps limited to particular desks. DCS Williams explained that he would need more than a corner name that happened to be the first name of someone employed by the paper:288

E "To put together a criminal investigation, I wouldn't just use that one facet. There

would be a whole range of questions and things that I would want to get put together to have a cogent case as to now why am I speaking to this individual. Not simply the fact that their name is – I'm making this up – Bill, because that's on a corner name, and they happen to be Bill someone employed in this papers. I would need more than that."

5.52 He repeated that he would have wanted to go through all the material because:289

"That is a proper and professional way of carrying out a criminal investigation. It's not done piecemeal or bit by bit. It's done exhaustively, in exactly the way that actually it's being done subsequently."

5.53 Whilst I do not accept that, of necessity, furthering the investigation was "all or nothing", and

that certain preliminary steps could not have been taken to see what they yielded, I have no doubt that DCS Williams honestly held the view that the only satisfactory approach was to examine the Mulcaire archive both systematically and comprehensively.

5.54 The next possibility, suggested to DCS Surtees was that he could have obtained the call data

in relation to a limited number of victims listed in the blue book and see who else might have been calling into their voicemail boxes.290 DCS Surtees explained that the phone records for a given individual reveal thousands of lines of incoming telephone calls. Identifying any given incoming caller requires a separate RIPA authorisation (which itself was a "laborious process" because the police needed to account for their wish to intrude into the privacy of the individual).291 He stated that the only feasible approach, therefore, was to start with the

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suspect's number and look to see whether that number had accessed the voicemail account of the potential victim.292

5.55 DCS Surtees agreed that the potential victim concerned could be asked to exclude the

numbers they recognised.293 However, he also pointed out that the phone records would not show which of the incoming calls were seeking remote access to voicemail and which were ordinary phone calls to the victim. Only Vodafone's "Vampire" data were able to show the details of calls into voicemail boxes.294 It follows that it was quite likely that even after the individual had eliminated all the numbers he or she could recognise, the police would be left with many numbers which may or may not have called the voicemail box. A RIPA application would then have had to be made on a speculative basis, which may well have been insufficient to satisfy the officer charged with deciding whether to grant a RIPA authorisation, because the number could quite easily belong to an entirely innocent party.

5.56 DCS Surtees was also asked whether he considered and discussed with his senior officers

a more limited investigation in the first instance, for example by targeting the most senior journalists, because he would be able to find out their relevant phone numbers. He could not remember what conversations there were around scoping a possible future investigation or the extent of such an investigation. He said: "I certainly can't remember going into – we could have a major investigation or we could have a smaller investigation."295 Again, taking account E of the response of DCS Surtees to the questions on this topic, that to the extent that he, and indeed DCS Williams, did not consider whether steps short of a major investigation might be feasible, the absence of such consideration was based on a judgment made in good faith and was not influenced by any desire to protect or propitiate NI.

5.57 The tenor of the evidence of Mr Clarke was that he agreed with DCS Williams and DCS Surtees.

Mr Clarke was asked whether it would have been possible to carry out a more abbreviated analysis, looking at a sample of victims and the three journalists in the sight lines of DI Maberly. His response was:296

"… Well, potentially, but I don't see how you could take part of that material and subject it to analysis with all the cross-referencing and so on that would have to happen, and so inevitably I think it would lead to an analysis of all the material."

5.58 Mr Clarke agreed, when challenged, that there could have been a more limited and streamlined analysis of the material which focussed on the three journalists. He said:297

"I see what you're saying and with hindsight there are probably all sorts of approaches that could have been taken, but in the light of what I was aware of at the time, what I knew and the competing demands, I made the decision that we would not do so."

5.59 However, he subsequently re-stated his initial position, namely that the investigation could not have moved forwards without an exhaustive analysis of the material.298

5.60 I am not in a position to judge whether further tentative enquiries would have borne sufficient fruit to prosecute other journalists without there being a disproportionate drain on resources.

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What matters insofar as the Terms of Reference are concerned is whether the detectives honestly held the views that they did (rather than whether their views were necessarily well- founded) and were not influenced by any relationships between senior officers within the MPS and NI. The evidence I heard from each of them, and how they have justified their decisions, gives me no cause to doubt that their decisions were unaffected by the fact that the target of the further investigation would have been NI journalists or editors.

5.61 It is fair to add that DCS Williams also had concerns about whether the huge resource injection

that he believed would be required to take the investigation further would be justified by what such an investigation might realistically yield (which itself might have added to his cautious approach). He said:299

"All along, I – we had some grounds to suspect that this could be wider and that indeed if we undertook further research we may find something. What I didn't know and what I was clear about is what we would find, and actually what it would amount to. What I was very cognisant of, as indeed we all were, was the amount of work it had taken to get us to where we were, particularly in terms of the technical difficulties. "The other dimension that we were very conscious of is we had achieved that in a

E covert operation, where nobody knew what we were doing, nobody understood what

we were looking for, and they couldn't hide evidence. At the moment this was now very clear about what we were doing and what evidence we were looking for, and it is not unreasonable to think that it would be a far more challenging operation in terms of the implication of the resources that you would need."

5.62 DCS Williams went further because, when asked whether there was any sense that he was

taking on a large and powerful organisation and that there were dangers in doing so, he said:300

"I think with any large organisation, yes, we were aware of it in terms of a big organisation, which is why we carried out such a thorough investigation, why we sought so much advice from the CPS, in particular in terms of when it came to our arrest phase, because we wanted to be able to seize as much evidence as possible and do it in a proper and professional manner so that we could not be criticised for the way we carried out our investigation."

5.63 I accept the evidence that, if anything, the fact that he was investigating a large organisation

made it all the more important that DCS Williams did a good job, both in terms of the way the investigation was conducted and in ensuring that the evidence was sound. Reading between the lines, it was likely to have been within his contemplation that if there were any flaws in the investigation process or the evidence, they would be exploited to the fullest extent possible by the organisation's legal team. It is likely that this mind set also contributed to the cautious approach that DCS Williams took to the evidence.

5.64 Finally, it has been argued that all that would have been needed to include additional

journalists on the indictment would have been to ask NI for a list of journalists and cross- refer the list with the corner names. It is suggested that this would be virtually the same evidence as was used to convict Mr Goodman and Mr Mulcaire. It is right, as DCS Williams explained in evidence, that the evidence in support of counts 16 to 20 comprised a high volume of frequency of calls made by Mr Mulcaire to the relevant voicemail box and the

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duration of those calls.301 However, the approach suggested is too simplistic not least because the evidence implicating Mr Goodman in the conspiracy went significantly beyond his name appearing in the top corner of Mr Mulcaire's notes.

Influence of News International 5.65 It has also been argued that there is a strong implication that the conduct of DCS Williams

(in telling counsel, the CPS and subsequently Mr Yates that there was no evidence that any other journalists were involved and in later not pursuing the agreed strategy of informing victims) derived from his fear of the powerful media friends of his superiors and reflects a wider institutional fear of NI and his awareness of the close social relationships fostered by the company with his superiors. It has been contended that although there is no evidence that DCS Williams made any conscious decision to suppress evidence, it is inevitable that the relationships exerted some influence on his decision-making.

5.66 In relation to this aspect of the case, I reject these arguments. First, quite apart from whether

DCS Williams was aware of any close social relationships, if such there were, there is no evidence that any decision that he made as to the investigation was not entirely justifiable on logical and reasonable grounds; from the outset, he pursued it vigorously and effectively. E The ultimate decision (as it has been called) was made by Mr Clarke. As to the attitude to the investigation, DCS Williams said that:302

"… no one in my team had any contact with any of the newspapers, and I can assure you at no time in that investigation was it ever an issue, did we ever discuss it, did it ever influence the direction that we went in with that investigation."

5.67 Second, DCS Williams did not suppress evidence; and I have accepted that DCS Williams was

not intending to convey to counsel or the CPS that there was no evidence whatsoever to implicate other journalists, only that there was insufficient evidence to lay before a criminal Court.303

5.68 Suffice to say, having seen the senior members of the investigating team, I have no doubt

that they approached their task with complete integrity. Neither do I doubt their enthusiasm or their desire to investigate the criminality before them to the fullest extent possible within the limits of the resources available to them. I am satisfied that had Mr Clarke, at the end of September 2006, sanctioned the exhaustive analysis of the documentation seized from Mr Mulcaire, the investigators would have embarked on that task with the zeal and rigour they had demonstrated since Operation Caryatid had begun.

5.69 Given how little was known about voicemail interception when the investigation began in

December 2005 and the challenges involved in understanding how the interceptions were taking place and then proving the interceptions, it could only have been (and was) a robust, tenacious, well-motivated and skilful team that could have secured such extensive evidence that Clive Goodman and Glenn Mulcaire were driven to admit their guilt. I do not find they were deterred in their investigation by fear of getting on the wrong side of such a powerful organisation or displeasing senior management by risking damage to the MPS's working relationship with NI.

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5.70 As an indication of DCS Surtees' enthusiasm in particular, I note that he said in evidence that, when producing his search strategy:304

"I wanted very much to get into News International, because I wanted to search the desk, I wanted to search the financial areas, I wanted to find evidence around who was involved in this illegal activity."

5.71 Also, when asked whether he would have liked there to have been a full scale criminal

investigation into other journalists, his answer was: "absolutely". He explained, however, that he understood the priorities:305

"So in terms of what I would have liked to have done coupled with my obligations and the seriousness of the investigations I was involved in, I knew where my priorities lay, and those were with the issues of serious threat to life investigations. That's where I needed to be and that's where my staff needed to be."

5.72 On this topic, Mr Clarke observed that: "[the investigating officers] conducted an honest

inquiry, they were uninfluenced, as was I, by anything to do with News International or any media group."306 In the context of his evidence about the perception caused by his relationships with individuals from NI, Mr Hayman stressed:307

E

"I can absolutely accord with your point around perception, but I can tell you that the team on it are ferocious, they have a reputation of being ferocious, and if, let's say, there is a scenario, which some people have argued around the conspiracy that there was a not such ferociousness around because of a perceived relationship, it was impossible, in my view. If you wanted to be disproportionate towards those alleged perpetrators, or you wanted to dilute down the investigation, the security and parameters that were set by the SIO would make that impossible. And if I personalise that, if there was an agenda from me or any other person, Assistant Commissioner, who wanted to dilute or disproportionately ramp up that operation, it would be impossible for that to happen without the SIO calling foul or asking for that individual to record why they want something done in that decision log."

5.73 Because of the serious concern expressed, this aspect of the police operation has been

examined in detail. In the circumstances, I ought finally to record the views of the independent Queen's Counsel instructed to advise and conduct the prosecution, who dealt with the officers on a regular basis. David Perry QC said of the police and CPS staff involved:308 http://www.gmgplc.co.uk/the-scott-trust/history/ pp46-47, lines 25-13, David Perry QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript- of-Morning-Hearing-4-April-2012.pdf http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Mark-Moylan.pdf p56, lines 17-23, Ed Stearns, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/lev030412am.pdf p7, para 9.2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-George- Osborne-MP.pdf ; see also p57, lines 2-9, George Osborne, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/06/Transcript-of-Afternoon-Hearing-11-June-2012.pdf p171, ibid p12, para 9.3, ibid Commonly known as the rule in Bonnard v Perryman [1891] 2 Ch 269. The relationship between this rule and s12 of the HRA 1998 was addressed by the Court of Appeal in Greene v Associated Newspapers Ltd [2005] QB 972

"… my impression throughout this case, which was not an easy case, given all the sensitivities as well as the technical aspects and the difficult issues of law, was that everyone involved, both at the Crown Prosecution Service and in the police, were conscientiously attempting to do their jobs professionally and with some skill, and my distinct impression at the end of it all was that it was an example of collaborative efforts on the part of the Crown Prosecution Service and the police that had led on

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the face of it at any rate to a successful outcome on the facts of this case. I must say, I found everyone involved highly skilled, competent and professional."

  1. Police strategy for the aftermath

The victim notification strategy 6.1 In order to examine how the police intended to address issues concerning the victims of

voicemail interception, it is necessary to return to 24 August 2006 (three days after the conference with counsel) on which date DCS Williams met with Mr Clarke and DCS White. Mr Clarke's recollection is that the purpose of the meeting was to devise and produce a victim notification strategy.309 Mr Clarke said that he agreed the strategy at the meeting310 and expected it to be implemented and seen through.311 He said that:312

"Bearing in mind that there had been very close co-operation between my officers and the mobile phone industry throughout the investigation, it was agreed that after the arrests there would be a strategy for informing victims whereby police officers would inform certain categories of potential victim, and the mobile phone companies E would identify and inform others."

6.2 Mr Clarke was asked whether it was his intention that the 418 names on the original list of

potential victims, which was prepared shortly after 8 August 2006, would be notified one way or the other, either directly by the police or by the mobile phone companies. Mr Clarke said: "Yes, absolutely".313 Mr Clarke said that he did not have any oversight over the execution of the strategy because he would not be expected to do so and by then he was fully immersed in Operation Overt.314

6.3 DCS Williams said that he wrote the outcome of the discussion in a document entitled

"Informing Potential Victims".315 Given that Mr Clarke had no further involvement in the victim notification strategy after that meeting, it does not appear that he saw the document or was asked to agree the detail of the strategy. The following are material extracts from the document:

"Situation … Material seized during the executive action phase of Op Caryatid has been assessed and at this stage there are approximately 180 potential victims whose details are recorded by Mulcaire. … "Way Forward

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There is a need to establish definitely how many victims there are, i.e. how many people have had their voicemails (UVNs) rung by Mulcaire/Goodman. With that in mind all 5 of the UK mobile phone companies have been asked to search their UVN equivalents for any of our 'suspect' phone numbers calling them going as far back as possible – up to one year, dependant [sic] upon data retention. Time frame – up to 3 weeks, but variable due to Op Overt. … Using the information that will come from the mobile phone service providers together with an assessment of material seized, police/Council [sic] can choose an appropriate range of 'victims' – subject to their agreement – to add to the charges. The list of victims will then represent the most definitive list of people who have had their voicemails 'intercepted'. There is arguably a duty to inform people when they have been a victim of crime and in this case I believe that duty should be undertaken for those people who we know are victims by virtue of the fact that our suspects called their voicemails (UVNs). That list will be identified as above and the next step is to decide when and how they should be informed.

E "Issues to bear in mind if informing victims

Informing all of the victims could be resource intensive which SO13 can ill afford at this juncture given the current terrorist threat. From all that is known, the risk to the victims does not extend to a risk to life or serious injury/damage to property, but rather the goal of the criminality is to seek material of media interest – typically salacious gossip! Arguably any immediate and future risk has been negated by virtue of the fact that police now hold the suspects data on their victims and the fact that they have been detected acts as a deterrent for them or anyone else to target these victims. Although the techniques for voicemail interception may not be limited to these suspects it is unlikely these two will have shared them with a wider audience given the potential earning value of the technique. Equally our investigation to date has not identified any other suspects calling the UVNs of our main victims. There is a rationale for saying that the risk to victims has been significantly reduced due to police action and therefore a more measured and proportionate approach can be taken in terms of who and when the victims are informed. Options In terms of the, who and when, the following are options:– 1. Given the rationale outlined above, do not inform any victims beyond those who will be used in the prosecution. 2. As per 1 above, but extend the victims to be informed to include anyone who falls into the category of MP, Royal Household, Police and Military on the basis that although there is nothing to suspect personal safety or national security is being targeted, these are people for whom being those aspects could be a collateral risk. The latter four categories would include those that are on Mulcaire's list whether or not any investigation shows that their UVN has been dialled. 3. Inform all victims i.e. whose voicemails have been called.

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  1. As per 3 above, but vary the when and how. The four categories identified in option 2 should be informed now and the remainder can be informed once the definitive list is complete following responses from the phone companies. Police would lead on informing the former group whereas the latter group could be informed by the respective 'victim' phone company via an agreed police/mobile phone companies' letter. Recommended Option Option 4 is my preferred option because:– It deals with the risks to individuals in a proportionate manner. Is a proportionate use of police resources that are hard pressed across the MPS? The responsibility and resource implications are shared with the phone companies. The phone companies are the most effective and efficient means of contacting the victims in the majority of cases. Police have the appropriate channels to contact the police/military/MP/Royal victims.

6.4 DCS Williams explained in his witness statement that:316

"… I felt that there was arguably a duty to inform people who may have been a victim E of crime in this case and I felt that this was best defined by 'for those people who we know are victims by virtue of the fact that our suspects called their voicemails.' If those people could be identified it was a case of by whom, how and when those people would be informed. The rationale for such a distinction was based upon a proportionate sharing of the resources that would be required, the level of risk/harm and who, police or service providers, had the best discrete [sic] channels to carry out the task."

6.5 He provided additional insight into his thinking at the time during the course of his briefing to the Assistant Commissioner, John Yates, in 2009:317

"At the time the strategy recognised that there was still extensive research to be done with the phone companies to identify what the full extent of victims might be and therefore as outlined under the section above 'How were victims identified' this could be a vastly bigger group of people and in reality we would probably never know the true scale. This strategy was therefore seeking to alert potential past victims in a proportionate manner without causing undue alarm (i.e. contact via Phone Company as opposed to police) and set in motion measures within the overall mobile phone industry to prevent it happening in the future."

6.6 In summary therefore, the plan was for the police to notify immediately those identified in

the blue book (the 418 individuals) who fell into the category of MP, Royal Household, Police and Military, regardless of whether there was evidence that their voicemail boxes had been dialled by the suspect numbers. Individuals outside those four categories would be notified provided their voicemail box had been rung by Mr Goodman or Mr Mulcaire or both318 but

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irrespective of whether there was a "new" or "old" message in the voicemail box.319 DCS Williams explained that this latter group of victims would comprise those in the blue book whose voicemails had been rung by the suspect numbers (but who were not MPs, members of the Royal Household, police of military) and any additional individuals that the phone companies brought to their attention.320 It was not sufficient that they merely appeared in the Mulcaire papers or were listed in the blue book.321 This latter group of individuals would be informed by their phone company, by way of a letter agreed between the police and the phone company, but not until the phone companies had responded to the request that they identify as many of their customers as they could whose voicemail boxes had been rung by the suspect numbers (so that a "definitive" list could be compiled).

6.7 I find that it was reasonable for the police to put in place a three-track strategy for the

prosecution: namely (i) conducting a high-profile but limited prosecution (limited in terms of victims named on the indictment); (ii) alerting the phone companies so that they could improve security and change their procedures as appropriate and (iii) warning people who were the subject of criminal attention. However, the victim notification strategy was both poorly thought out and scarcely executed.

6.8 The plan lacked coherence. A considerable amount of work had been invested in the blue E book, which provided a list of potential victims (as DCS Surtees intended).322 Plainly, the

police should have ensured that all those named in the blue book were notified and the plan should have been devised on that basis. I see no reason for believing that this would have been a disproportionate drain on resources. Instead, the detail of the strategy was such that it excluded people listed in the blue book but in respect of whom there was no evidence that their voicemails had been called by the suspect numbers.323 The strategy therefore overlooked people who were identified in the blue book, and in respect of whom Mr Mulcaire had the wherewithal to access the voicemail accounts, but whose voicemails may have been accessed by an as yet unidentified suspect number, such as a number belonging to someone other than Mr Goodman or Mr Mulcaire. This ought to have been within DCS Williams' contemplation given his strong suspicion that journalists other than Mr Goodman had been involved in voicemail interception. The strategy also overlooked the fact that the phone companies only held their records for a short period of time and it thereby excluded those whose voicemails had been accessed by the identified suspect numbers but at such an early date that the relevant records had not been retained.

6.9 DCS Williams was asked why everyone named in the blue book was not notified. His response was:324

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"But I believe the implementation of this strategy was all I'd got there is a snapshot in time from the material that we happened to have received. There could well be a wider pool of people that have been compromised as a result of his activity or indeed anywhere else. So this strategy was aimed at the full potential of what those potential victims might be. So that's where it's actually in the when and the how that I'm seeking or I was hoping through this strategy to address that much wider pool of people, which would have included everybody on that list." This answer suggests that DCS Williams failed to recognise that the ambit of the strategy simply did not encompass, even theoretically, everyone identified in the blue book.

6.10 Without suggesting to DCS Surtees that it was his responsibility to do so, it was put to him

that it would not have been an enormous task to contact everyone in the blue book and make sure that everyone was told that there was some information that their voicemail messages may have been intercepted, that it may not be possible to prosecute for reasons that could be explained, but that they ought to be aware of that fact and take appropriate security arrangements or, at least, be alert.325 DCS Surtees responded as follows:326

"I accept that. In terms of the Blue Book and in terms of the document that was produced later, which was a document produced as a result of the analysis of the electronic media, which I think came to us on 23 November 2006, in relation to both E those documents, I accept that, the Metropolitan Police, could have approached all of those people and said, 'Look what is on a piece of paper', or, 'Look what is on a document and look how it relates to you'. I accept that."

6.11 In my view, the police ought either to have informed those named in the blue book themselves,

or have agreed with the phone companies that the latter would do so, and given them the means to do so by providing the list of names. The police ought then to have checked with the phone companies to ensure that all relevant individuals had been informed. Insofar as the police had concerns about their obligations under the Data Protection Act 1998 when giving any names to the phone companies, this was a matter that could doubtless have been discussed and resolved: ultimately, the police could have avoided those concerns by informing those individuals themselves.

6.12 Unfortunately, not only was the strategy ill-conceived but, in addition, its execution was

woefully inadequate. The evidence indicates that the police did not notify all the victims for whom they were responsible and neither does it appear that the plan was ever, in terms, communicated to the phone companies, despite a large part of the responsibility for informing victims being intended to fall on them. The police appear to have assumed that having been asked to identify any customers whose voicemail boxes had been called by the suspect numbers, the phone companies would naturally inform all those that they identified.

6.13 DCS Williams explained his thinking as follows:327

"When I wrote the strategy, it was based on what I believed was already happening in terms of our relationship with the service providers and as the case progressed to prosecution that ongoing support, discovery, cooperation and joint media releases

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served to reinforce my belief. I believed the strategy was being carried out as an ongoing process and I had merely formalised the process at a moment in time with the official endorsement of my senior management."

6.14 DCS Williams even appears to have contemplated that the phone companies would identify potential victims and notify them without giving the police their names. DCS Williams:328

"… Albeit all of the companies and police were pragmatic in sharing data in what potentially would bring us to an administrative halt if we went down the full process, neither party was willing to share long lists of names for obvious privacy/data protection reasons. Therefore the informing potential victim strategy embraced these issues by providing the optimum, discrete [sic] means of informing anyone who was identified as a potential victim supported by a single, well worn route for those who may wish to report the matter to police."

6.15 DCS Surtees described it as his "understanding" that the telephone companies would tell

those other than MPs, members of the military, members of the Royal Household and police that their phones had potentially been accessed.329 He said:330

E "The Mobile phone companies had continued from the outset of the investigation to

provide us with details of other customers who had their voicemails intercepted. At no time did I or indeed anybody else from the police team ask for this to stop, even post arrest and charge. The issue of the obligation to inform customers/victims to my knowledge was never explicitly documented anywhere either by the police or indeed the telephone companies. O2 were adamant that they would only inform us of possible victims after they had informed their customers and sought consent331. My view was that the telephone companies were responsible for their customers, as is the case in other areas of business such as in the banking industry." "Whilst I was not explicit as to what these companies should do around informing and keeping their customers up to date, I held the belief that this was, in fact, being done. To further reinforce this I ensured that the phone companies, especially those not as close to the investigation as the two mentioned herein, were briefed, and, through Jack Wraith, that any victims were directed back to this investigation. Like with O2, the emphasis was still very much on the phone companies to deal with their customers in a professional manner. The telephone companies knew which of their customers were subject to illegal access because it was they who told us in the first place. At no time were they ever restricted from informing those customers, although the extent of the information passed would be limited. Further, it was not for the police to dictate to private companies how to execute their internal procedures and how to deal with their own customers."

6.16 It does appear, therefore, that no attempt was even made to agree the strategy with the

phone companies. In addition, there is no evidence of joint letters being agreed with the phone companies, despite this being the intention identified by the strategy. Furthermore, none of the phone companies have stated that they were asked, either before or after this

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strategy was drafted, formally to notify any particular category of customer that they were the potential victim of voicemail interception.332 It is right that O2 did notify a number of their customers, but it appears that they did so of their own initiative and not because they were asked to by the police as part of the victim notification strategy. I therefore do not accept the argument of the MPS that the failure of the strategy was due to a misunderstanding between the MPS and the phone companies as to which categories of victims should be informed and by whom. The strategy failed because the MPS did not take the necessary steps to put it into effect.

6.17 As late as 2009, when briefing Mr Yates, DCS Williams and DCS Surtees did not even appear

to have been aware that the strategy had failed. In a briefing note dated 12 July 2009, they stated:333

"It is not known in detail what each mobile phone company actually did, but anecdotally we know that upon learning of the flaws in their processes the phone companies took steps prevent future breaches and albeit these measures varied from company to company they included contacting customers who they thought might have been a victim …"

6.18 When making its opening statement to the Inquiry, the MPS fully accepted that the victim

notification strategy was not properly executed.334 The failure is now being remedied as part E of Operation Weeting. The MPS states that it accepts that it should have done more to ensure the strategy was fully implemented, but argues that this needs to be seen in the context of the huge demand on what became SO15 resources in 2006-7, as a result of several major counter terrorism operations.

6.19 DCS Surtees has also added that the decision made by Mr Clarke not to expend any further

resources on the operation affected the victim notification strategy. He said that after the decision had been made not to expand the investigation, he received the direction that staff should only service the prosecution, and consequently, there were no staff to follow up with the phone companies what they were doing regarding victim notification.335 It does not, however, seem that anyone went back to Mr Clarke and reminded him of the resources needed to implement the strategy which, in outline, he had approved.

6.20 In my judgment, these resource considerations simply do not explain why the basic steps

required were not taken to ensure that the phone companies were aware of what the police expected them to do and agreed both to do it and to the terms of a joint letter. The decision made by Mr Clarke and the demand on resources may provide some explanation (but no excuse) for why these important steps in the process were apparently overlooked but the significance of the failure should not be minimised: it was a failure to take even basic steps to follow up the strategy and to ensure that it had worked as intended. Mr Clarke expressed his regret for the failure of the strategy in his witness statement:336

"I have since learned that this strategy did not work as intended and as former Assistant Commissioner John Yates has publicly acknowledged, that is a matter of profound regret. It is also of course utterly regrettable that as a result of the decision

332

not to conduct a detailed analysis of all the material seized, victims of crime and their relatives, who I had no idea were the targets of the hackers, were not notified and did not receive the support that they deserved sooner."

6.21 The failure of the victim notification strategy reduced the opportunity for other victims to

make themselves known and created a perception that has caused significant damage to the reputation of the MPS. Once again, the important question is whether there is an evidential basis for finding that the police deliberately failed to notify people because they did not want the scale of the interceptions to be known publicly, which might itself have called into question both their strategy and their relationship with NI. The MPS contends forcefully that the failure of the strategy had nothing to do with inappropriately close relationships with (or fear of) members of the press, or any of the risks arising from such relationships as there were.

6.22 During his evidence Mr Clarke emphasised that his hope had been that the victim notification

strategy would be comprehensive and would work. He said: "Sadly, it turned out not to be the case and to this day I don't really understand why it didn't work".337

6.23 DCS Williams said:338 E "This strategy … did not seek to hide the potential to be a 'victim' of this behaviour. Far

from it, the whole aim was to secure maximum public awareness of the vulnerability through an effective and decisive criminal prosecution..."

6.24 DCS Williams was asked whether it was a fair observation that part of the reason for the failure

of the strategy was the fear that notifying all potential victims would mean the matter would enter the public domain more explosively and force the police to carry out an investigation which they did not really want. DCS Williams said:339

"It's not. I understand that's what's being said now, but I can assure you that was absolutely not the intention. I wanted to make this as public as possible, and the most obvious way of doing that is through a prosecution. If I hadn't have wanted to have done it, I could have stopped this investigation much earlier, but that was absolutely not my intention. It was to secure a prosecution, to make this very public, and actually in the wider and long term, to make it absolutely clear what the risks were and how to prevent it."

6.25 It has been asserted that the failure to alert Lord Prescott, in particular, to the fact that he

was a potential victim340 strongly supports the allegation that the police deliberately avoided notifying certain victims since, if Lord Prescott had been alerted, he is likely to have reacted to this revelation in such a way which would have made it very difficult for the police not to expand the investigation. It is important to note that, on 30 August 2006 DI Maberly emailed Vodafone asking if they could tell him whether anyone has listened to the voicemail of a number of people, which included "Tracey Temple (Prescott)".341 Clearly he was a suspected

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victim. Further, on 2 October 2006, DI Maberly emailed O2 identifying two persons of concern and asking O2 if they featured in the analysis O2 was preparing: the first name was "Joan Hammell (linked to prezza)".342 DCS Williams was asked about the material relating to Lord Prescott. He said:343

"I don't know whether I knew that specific bit in the sense of it sat here in this interview. What I was briefed about was, yes, there are now from the material a number of other people in all walks of life, that include politicians, where it may be that they are potentially people who Mulcaire or others might want to target in terms of their voicemail."

6.26 It is extremely unfortunate that, apparently, DCS Williams was not made fully aware of the

fact that the investigators suspected that Lord Prescott had been or, at the very least, was at risk of being, a victim, not least because of the significance of his position as Deputy Prime Minister. On the other hand, I consider it highly unlikely that this omission or the consequential failure to inform Lord Prescott was deliberate. The police had devised a strategy for bringing the matter to public attention, which included notification of specifically identified victims. It was not their overall intention that was at fault but, rather, the detail of the strategy and its implementation. It would be remarkable to embark on the exercise if their intention was to keep hidden what they had found. In the circumstances, it would not be safe or fair to conclude E that the failure of the strategy was either a device to minimise publicity or avoid scrutiny or an attempt to 'bury' the scale of the problem. As DCS Surtees explained in evidence:344

"There was a communication strategy which was devised in 2006 and it was multifaceted. It dealt with the information that was put out for offer. Two people had been arrested, two people had been charged with these offences. There was various media lines put out throughout the process: two men have pleaded guilty and then latterly two men have been sent to prison. So there were through the process of August into January 2007 a number of media lines put out and a lot of media coverage as a result of that."

6.27 Further, the police informed the PCC345 and Mr Clarke is absolutely clear in his mind that he

made the government aware of the investigation when Mr Goodman and Mr Mulcaire had been arrested. He said in his witness statement:346

"I recall discussing the case with Dr John Reid, the then Home Secretary, shortly after Goodman and Mulcaire had been arrested. This was in the margins of a meeting about broader counter terrorism issues in the immediate aftermath of the Operation Overt arrests, and was of little significance other than to demonstrate that the Home Office had been informed of the arrests and the broad nature of the case that was alleged against Goodman and Mulcaire."

334

6.28 Lord Reid confirmed this to the extent that he agreed it was quite possible that the subject of

their arrests was mentioned informally by Mr Clarke though he personally does not recall a specific conversation.347 He added:348

"I do recall the issue being touched upon much later in one conversation with the Met Commissioner towards the end of my period in office … My recollection is of being told that work continued following the recent trial that had concluded in late January 2007; that there was a considerable amount of material arising out of the trial and the investigations related to it; but that material did not equal evidence, and it would take some time to work through it with a view to gathering evidence."

6.29 This evidence is difficult to reconcile with the fact that, towards the end of September

2006, Mr Clarke decided that no further analysis of the material would take place. Lord Reid continued as follows:349

"So that was certainly my impression when I left office, that having carried out the convictions on Goodman and Mulcaire, that now what was being done on the generality of it because there were other suspected victims of this. "I think it was my final meeting. I can't be sure of that, but I think the final meeting

E was around May with Ian."

6.30 Lord Reid said that he was never made aware that were perhaps hundreds of victims and

thousands of names or that Lord Prescott was one of names in which Mr Mulcaire could be seen to be interested, whether or not his phone messages or the phone messages of one his staff were actually the subject of interception.350

6.31 Not only do I conclude that a deliberate failure to inform victims was inconsistent with the

evident desire of the police to bring the matter to public attention generally, but neither do I find it plausible that the officers concerned would devise a victim notification strategy which they never intended to execute. Further, for all the reasons that I have previously set out, I do not believe that the failure of the strategy was influenced in any way by or connected to any inappropriate relationship between the MPS and NI. By far the more plausible explanation for the failure of the notification strategy is that SO13, having been successful in its primary objective, simply took its eye off the ball in circumstances where it was extremely keen to return to what might be described as its core business, namely counter-terrorism.

6.32 It has also been argued that when the police did notify victims, they favoured media contacts.

For instance, Mrs Brooks was informed that she was a victim and, on 13 October 2006, DCS Surtees emailed the Mail on Sunday a list of five members of staff who had been found to be the victim of voicemail interception.351 It is said that this position is to be contrasted with that of Brian Paddick, Lord Prescott and Simon Hughes. Brian Paddick was a Commander serving with the MPS at the material time; his name appeared in the project list created by the High Tech Crime Unit from information held on Mr Mulcaire's computer. Indeed, the High Tech Crime Unit had specifically highlighted his name in the introduction to the document as someone about whom attempts had been made to obtain information. There were also references in Mr Mulcaire's papers which included the name of Mr Paddick, his address,

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his mobile phone number and other phone numbers. It was only in 2010 that Mr Paddick was informed. Further, although Rt Hon Simon Hughes MP was an identified victim and the subject of one of the charges in the criminal trial, he was not told that Mr Mulcaire had recorded in his notebook not only details about him but also his friends and family along with the names of three NoTW journalists other than Mr Goodman.352

6.33 I can well understand the reason for the concern that these witnesses had about the approach

of the police which underlines the failure adequately to enunciate and implement a sensible and appropriate policy of notifying those who needed to know that their communications may not have been secure and their privacy had been violated or, at the very least, at risk. This might have been as a result of direct notification or by involving mobile phone companies but it had to be done and steps taken to ensure that it had been done. Having said that, the police did notify a number of those who were not related to the media (including, for instance, George Galloway who was told on 24 August 2006). In the circumstances, I consider that the undoubted failures of notification are not the result of cover-up or preferential treatment and favouritism towards the press but rather of poor strategy, and poor implementation of such strategy as existed with insufficient consideration to the importance that many if not most of the victims would attach to learning what had or might have happened to them. E The failure to warn NI or challenge the "one rogue reporter" assertion

6.34 The police were aware that there were very strong grounds for believing that journalists at

NI, other than Mr Goodman, had been involved in unlawful voicemail interception. They had identified that the practice might be widespread. However justifiable their decision not to follow the evidential leads implicating other journalists might have been, that approach, brought with it an expectation that the police would take all other steps reasonably available to them to prevent the recurrence of the crime. In part that was achieved by mounting the high profile prosecution of Glenn Mulcaire and Clive Goodman.

6.35 Given the extent of the material in the Mulcaire archive and the collation of that material in

the blue book, one possible additional step would have been to alert senior management at NoTW and NI of their concern about the extent of the criminality so that the management could review their systems of corporate governance, possibly to institute their own internal investigation into the relationship between the NoTW and Mr Mulcaire which had permitted him to earn so much money and, in the event that payments could not be justified to take such steps as they thought appropriate to deal with the position. It could have been explained to NI that there were other leads in the material which they had seized which could have revealed more widespread criminality but that were not being pursued because of significant competing priorities to deal with counter terrorism. This is not to suggest that the police should have undertaken any duty to monitor NI for which they had neither power nor resources.

6.36 Taking this step might have led NI and NoTW to be rather less forceful in their assertion of

the line that Mr Goodman represented "one rogue reporter". Furthermore, when the police became aware that NI's public approach was that Mr Goodman had been working alone, at the very least, the police should have been prepared to point to the observations of Mr Perry, the conclusion of Mr Justice Gross and the fact that their investigation (necessarily not taken as far as it could have been taken because of counter terrorism) should not be taken as

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supporting that conclusion. I am not suggesting that they could make allegations about those whom they had not investigated; distancing the police from these conclusions, however, would, at least, have provided some context.

6.37 DCS Surtees accepted that it would have been possible to go to NI and have a conversation

although: "it may well have been viewed cynically". He agreed that if the police had done so, then they could have pointed out, when reference was made to a single rogue reporter, that the police "put them right" because this did not do justice to the extent of the investigation.353 This would not have taken a great deal of police resource.354

6.38 This step did not, however, cross the mind of DCS Williams. He said:355

"I didn't think to specifically do that. I – if I think of your question and look back, I feel we made it abundantly clear what our understanding was and what our suspicions were in terms of the requests that we made to them. I'm sure they were well aware of what it was that we suspected, and given that ultimately a member of their senior management team resigned on the basis of what we'd found, I would have expected any senior management in an organisation to question why had that happened and to understand exactly what had gone on."

E

6.39 He went on to say that:356

"Actually, I thought I'd already done that, had made it very clear, not just to them, but to any organisation that might be engaged in this, that might want to consider are we also doing this. "That was the whole purpose. It was to show people: if you are doing this, whoever you are and wherever you are, actually it is clearly criminally wrong, and you'll go to prison, and if you're an organisation that knows that you seek information and you should be thinking to yourselves, 'I wonder if we've got any vulnerabilities?' – that's what we do as a learning organisation in the police. I don't necessarily expect someone to come and tell me that I should do that, and actually, I may be wrong, but I'm not aware in – either I've not done it and I'm not aware of my fellow investigators having actually gone and this in senior companies. I know in frauds, then, but that's more in terms of vulnerabilities of a system as opposed to actually something being wrong in the organisation. That's usually demonstrated through the prosecution of people."

6.40 DCS Williams was right to expect the senior management at NI to conduct an internal

investigation and take such preventative measures as were necessary, but it was not safe to assume that they would do so. Bearing in mind the 'one rogue reporter' defence, the reverse was more likely to be the case. On any showing, by strongly advising that course of action, it was open to the police to maximise the chances that the issues would be addressed.

6.41 The MPS argues that the omission to warn NI as to its future conduct was not a failing and that

it did all that was reasonable (given the relevant context and state of knowledge at the time) to raise concerns with NI. The MPS submits that it was made "abundantly clear" to NI that

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the police suspected that voicemail interception was more widespread and that the message was delivered "very firmly" that they had a problem with employees engaged in "sustained periods of criminal activity".357 The MPS submits that the attempted search of NI would have sent a very clear message to NI that the MPS was seeking any evidence of criminality and by implication a halt to any further criminal practice. Also, that the correspondence sent to Burton Copeland demonstrated the attempts made by the MPS to bring to the attention of NI both the nature and extent of the documentation required and by implication the practice of voicemail interception within NoTW. In my judgment, however, these submissions overstate the case: an aborted search that was not renewed and letters requesting documentation, both of which entailed no repercussions for NI sent no warning signal at all.

6.42 The MPS makes the further submission that it is evident from the recent arrests and various

charges in Operation Weeting that there is at least material for suggesting that others at NI either knew or feared very much more extensive criminality. Without prejudicing the ongoing criminal investigation and prosecution, it is not right to go further although it is sufficient to point to Mr Myler's comment about "bombs under the newsroom floor" as identifying his concern which was hardly consistent with the stated line. In any event, this argument misses the point: what was important was not what the NoTW knew or appreciated but that the police had strong grounds for believing that the offending was more extensive than the public line being deployed and that the fact that the investigation had not gone further should not E be taken as police endorsement of an attempt to minimise what had been uncovered.

6.43 The MPS also relies on the prosecution itself, stating that this alone should have sent a very

clear message to all media organisations, not just NI, that voicemail interception was illegal and would not be tolerated. I have no doubt that everyone understood the gravity of the position if it was detected. On the other hand, the deterrent effect of the prosecution would have been substantially reduced by the fact that NI had arguably thwarted a wider investigation by interfering with the searches in Wapping and by adopting the attitude reflected in the approach of Burton Copeland to requests for information and documents. The deterrent effect would also be reduced by the fact that, despite the indications of wider criminality at NI, the investigation had been closed. In those circumstances, NI could well have considered itself "off the hook". The matters relied upon by the MPS are simply not in the order of what, in my judgment, was required of them before they put Operation Caryatid behind them.

6.44 Finally, the MPS argues that any approach by the MPS to NI in an unofficial capacity to seek

compliance could have been perceived by others as inappropriately 'cosy' and DCS Williams has said that he was operating under the general instruction from Mr Clarke not to engage with the media. The MPS would not, however, be acting in an unofficial capacity and it is not correct to suggest that a formal approach by senior officers, at a fully documented and minuted meeting, delivering the warning and advice outlined above, could be perceived as overly 'cosy' or otherwise inappropriate, or of a nature that Mr Clarke would prohibit.

  1. The reaction of the News of the World

Change of editors 7.1 The one significant change that occurred at the NoTW following the prosecution was the resignation of Andy Coulson and appointment of Colin Myler as editor. Mr Coulson said in

338

evidence that his resignation was his decision, reached without any prior discussion with Mr Murdoch or Mr Hinton:358

"I went to see Les Hinton and I was very clear that I was going to resign, and then I did so."

7.2 Accepting this evidence, which has not been contested in any way, the replacement of Mr

Coulson as editor was not a step taken by NI to effect a culture change, so much as a convenient opportunity. On his departure, Mr Coulson received compensation in lieu of notice and compensation for termination of employment.359 This appears to suggest a gesture of good will on the part of NI to Mr Coulson at the point of his personal decision to accept editorial responsibility for what had happened.

7.3 According to the oral evidence of Rupert Murdoch, Mr Myler was appointed to "find out

what the hell was going on".360 Mr Murdoch testified after Mr Myler and his version of events could not be put to the latter when he gave evidence in Module 1. Having been given the opportunity to comment on Mr Murdoch's account, Mr Myler contends that he was given no such brief either in these somewhat colourful terms or otherwise, and that he simply understood his role as being to edit the paper.361 In response, Rupert Murdoch has clarified

E that it certainly was his understanding from Les Hinton that Mr Myler was appointed to "find

out what the hell was going on", and that it would not been possible for the latter to have moved the paper forward by improving its practices and governance, to avoid a repetition of the conduct which had led to the criminal convictions, without ascertaining what had gone wrong in the past.362 The upshot was that Mr Myler appears to have decided that his function should be forward-looking:363

"… the trauma of what had happened with the Goodman/Mulcaire trial left a very deep, as I say, trauma within the newspaper and the morale of the staff. So I think it was more important to improve the standards and the protocols and the systems that existed, rather than dwell on what was. I think it was more important to say, 'From now on, this is how we're going to work and this is what it is'."

7.4 Mr Myler claimed, however, to be uneasy with the situation:

"It's fair to say that I always had some discomfort and I always – the term I phrased was I felt that there could have been bombs under the newsroom floor and I didn't know where they were and I didn't know when they were going to go off. That was my own view. But trying to get the evidence or establishing the evidence that sadly the police already had was another matter."364

7.5 There were steps that Mr Myler could have taken in an attempt to locate and defuse 'the bombs'. He had the ability to analyse every single payment to Mr Mulcaire and to require

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every single journalist who had employed him to justify every single request or task that Mr Mulcaire had been set and every story that Mulcaire had provided. Although in the light of the way in which the paper had dealt with the police investigation, it may have been difficult or embarrassing, he could have sought the assistance of the police not to encourage further investigation but to see whether there were any strands which they had considered which an internal investigation might pursue thereby demonstrating his determination to root out what had happened. Some of these steps might not have been practicable and the impact on morale had to be considered: but some must have been. In the event, he did little to assuage his own 'discomfort' except lay down rules for the future. As to the what had happened, he vigorously and forcefully followed a line which, to pursue the analogy of a bomb under the newsroom floor, simply ignored his privately held fear of an impending explosion.

The "one rogue reporter" claim The PCC

7.6 Mr Tim Toulmin, then Director of the Press Complaints Commission (PCC) said that the

PCC had neither the legal powers nor the authority vested in it by the newspaper industry to institute an inquiry into other possible instances of unlawful voicemail interception at E the NoTW or more generally in the press,365 but that it wanted to do something useful to complement the police inquiry so that light could be shone on what had gone wrong, and so that lessons could be learned to ensure that there was no repetition.366 Accordingly, on 7 February 2007, Mr Toulmin wrote to Mr Myler asking a number of questions about the conduct of Mr Goodman and Mr Mulcaire and asking him what the newspaper proposed to do to ensure that the conduct was not repeated. In his reply, Mr Myler urged the PCC to see the episode in perspective on the basis that it represented:367

"an exceptional and unhappy event in the 163 year history of the News of the World, involving one journalist".

7.7 Mr Myler also emphasised the newspaper's commitment to the Code of Practice, drawing

attention, by way of example, to an episode where it had dismissed a reporter for breaching the provisions of the Code. He said that:368 p3, para 12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Manish- Malhotra.pdf PCC phone message hacking report March 2007, para 3.2 The Inquiry noted that the evidence suggested that this tendency was not limited to the Page 3 tabloids, but on the evidence as a whole concluded that a broad criticism relating to the representation of women could not be sustained against other newspapers p7, ibid p11, Adam Smith, ibid

"Every single News of the World journalist is conversant with the Code and appreciates fully the necessity of total compliance".

7.8 Mr Myler described Mr Goodman as a "rogue exception". This is possibly the first use of what later became established as the "one rogue reporter" defence.369

7.9 Mr Myler also set out the changes that he was making to prevent repetition of the conduct

concerned. Those changes were: ensuring that contributors to the newspaper clearly understood their responsibility to comply with the Code and NI policies and procedures; ensuring that all journalists focussed on the importance of the Code and legal compliance and the risk of dismissal for failure to comply; and instituting processes to ensure that large cash sums could not be paid without appropriate authority.370

340

7.10 The PCC concluded that:371 p28, lines 4-5, Manish Malhotra, ibid PCC phone message hacking report March 2007 pp103-104, paras 6.3-6.4 [PLEASE INSERT HYPERLINK] The Sport, example 8, http://www.object.org.uk/files/The%20Leveson%20inquiry%20-%20OBJECT%20and%20 Turn%20Your%20Back%20on%20Page%203%20Joint%20Submission(3).pdf p2, lines 11-17, Julie Norgrove, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-29-March-2012.pdf p1, ibid

"No evidence has emerged either from the legal proceedings or the Commission's questions to Mr Myler and Mr Hinton of a conspiracy at the newspaper going beyond Messrs Goodman and Mulcaire to subvert the law and the PCC's Code of Practice. There is no evidence to challenge Mr Myler's assertion that: Goodman had deceived his employer in order to obtain cash to pay Mulcaire; that he had concealed the identity of the source of information on royal stories; and that no-one else at the News of the World knew that Messrs Goodman and Mulcaire were tapping phone messages for stories. However, internal controls at the newspaper were clearly inadequate for the purpose of identifying the deception."

Parliament

7.11 On 6 March 2007, Les Hinton, Chairman of NI, appeared in front of the Culture Media and Sports

Committee of the House of Commons (CMS Committee), which at that time was conducting an inquiry into self-regulation of the press. Voicemail interception was only briefly touched on at the hearing. Mr Hinton told the Committee that a, "full, rigorous internal inquiry" was being carried out and that he (Hinton) was absolutely convinced that Mr Goodman was the

E only person who knew what was going on.372 The Committee noted this assurance without

comment but were highly critical of the financial processes in place in NoTW that they had been told allowed Mr Goodman to employ Mr Mulcaire to intercept voicemail messages without appropriate oversight or authority from senior executives.

Dismissal of Clive Goodman and his appeal

7.12 It appears that Mr Goodman expected to continue his employment at the NoTW once he

had served his sentence of imprisonment. In my judgment, that perception is, in itself, quite extraordinary. There can be few employees who would expect to return to their jobs after serving a sentence of imprisonment for a serious criminal offence, particularly an offence committed in the course of their employment and, even more so, where (as was contended) what he was doing was wholly unknown and had been managed and financed by deceit. The NI Disciplinary Policy and Procedure provided for immediate dismissal without notice, or payment in lieu of notice, for various forms of "gross misconduct" including:373 p80, lines 19-22, Manish Malhotra, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Morning-Hearing-10-January-2012.pdf News International Disciplinary Policy and Process: not publicly available. pp1-2, paras 12-19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Second-Witness-Statement- of-Dominic-Mohan1.pdf p6, Chief Constable Jonathan Stoddart, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit- CCJS9.pdf p2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-statement-of-Jonathan-Stephens3. pdf

"conviction for a criminal offence (including outside of work) which may bring News International into disrepute or otherwise impact on your suitability for employment with the Company".

7.13 In the circumstances Mr Goodman should properly have expected to be dismissed without

any form of financial compensation. However, Mr Goodman felt he had been given assurances by both Tom Crone (the lawyer employed by NI who had ultimate legal responsibility for editorial legal matters at the NoTW) and Andy Coulson that he could return to work at the NoTW once he had served his sentence providing he did not implicate in criminal conduct any of the newspaper's other staff.374 Whilst Mr Crone denied the allegation that there was any

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suggestion that Mr Goodman might be kept on as the price for his silence, Mr Crone did say that Mr Coulson had indicated that:375 p6, para 22, ibid p92, lines 11-17, Tom Crone, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Afternoon-Hearing-13-December-20111.pdf http://www.object.org.uk/files/Exhibit%2012.pdf p4, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit-RB1-to-ws-of-Roger-Baker-21.02.12. pdf p3, ibid p25, lines 10-18, ibid

"…he hoped that whatever happened to Clive Goodman at the end of the criminal process, and if he was found guilty and served his sentence, he would be able to come back to the News of the World in some sort of role, having served his sentence. Not a reporting role that involved interaction with the public in any other way, but perhaps book filleting or book serialisation, possibly."

7.14 In the event, this view was not shared by Mr Hinton because on 5 February 2007 Mr Hinton wrote to Mr Goodman terminating his employment. The letter said:376 http://www.independent.co.uk/service/code-of-conduct-and-complaints-6280644.html Letter from Les Hinton to Clive Goodman 5 February 2007 (not available on Inquiry website) http://www.object.org.uk/files/Exhibit%2014.pdf p11, Chief Constable Mike Cunningham, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Exhibit- CCMC13.pdf pp55-56, lines 24-7, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-31-May-2012.pdf p15, lines 15-20, ibid

"I recognise this episode followed many unblemished, and frequently distinguished, years of service to the News of the World. In view of this, and in recognition of the pressures on your family, it has been decided that upon your termination you will receive one year's salary. In all the circumstances, we would of course be entitled to make no payment whatever…You will be paid, through payroll, on 6 February 2007,12 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) months' base salary, subject to normal deductions of tax and nation insurance." E

7.15 The terms of the dismissal were considerably more generous than the terms of his

employment required, but Mr Goodman was not content. On 2 March 2007, Mr Goodman wrote to Daniel Cloke, then head of Human Resources at NI, appealing against his dismissal. His first two grounds of appeal were first, that the decision was perverse because his actions were carried out with the full knowledge and support of executives at the NoTW and second, that the decision was inconsistent because others, who were still working for the NoTW, were engaged in the same illegal procedures.377

7.16 On 14 March 2007, Mr Goodman submitted a lengthy list of documents which he wanted NI

to provide for the purposes of his appeal. The list included emails passing between him and various named members of staff. On 9 May 2007 Jonathan Chapman, then Director of Legal Affairs for NI, instructed solicitors, Harbottle & Lewis, to carry out a review of the emails identified by Mr Goodman. Mr Chapman sent formal instructions by email the following day to Lawrence Abramson, then managing partner at Harbottle & Lewis, which stated that:378

"Because of the bad publicity that could result in an allegation in an employment tribunal that we had covered up potentially damaging evidence found on our email trawl, I would ask that you … carry out an independent review of the emails in question and report back to me with any findings of material that could possibly tend to support either of Mr Goodman's contentions".

7.17 It is revealing that the concern was to identify material that would cause the company further

embarrassment or damage their prospects in an Employment Tribunal rather than ascertain whether the allegations made by Mr Goodman were true.

342

7.18 On 25 May 2007 Mr Abramson emailed Mr Chapman draft wording of his advice for consideration by him before it was formalised.379 The email read:

"We have on your instructions searched the emails that you were able to let us have access to from the accounts of [redacted names] I can confirm that we did not find any evidence that proved that [redacted names] knew that Clive Goodman, Glenn Mulcaire or any other journalists as the News of the World were engaged in illegal activities prior to their arrest."

7.19 Later that day Mr Chapman suggested an addition to the advice, namely:380

"Equally, having seen a copy of Clive Goodman's notice of appeal of 2 March 2007, we did not find anything that we consider to be directly relevant to the grounds of appeal put forward by him."

7.20 Mr Abramson declined to include this sentence because:

"I think the short answer is it wasn't the exercise we'd been asked to conduct. We'd been asked to look for whether there was evidence in emails that supported specific allegations, and to have then signed off on an opinion that was much wider than the

E exercise we'd been conducting would have been wholly wrong and I couldn't have done that."

7.21 The final wording was the following:

"I can confirm that we did not find anything in those emails which appear to us to be reasonable evidence that Clive Goodman's illegal activities were known about and supported …"

7.22 It is important to note the limited exercise that Harbottle and Lewis had been asked to

carry out and the correspondingly limited comfort that NI could legitimately derive from it when considering the broad question of whether there was evidence that the conspiracy to intercept voicemail messages extended beyond Mr Goodman and Mr Mulcaire.

The limits of the internal investigation

7.23 Despite the assurance given by Mr Hinton to the CMS Committee that a "full, rigorous

internal inquiry" was being carried out, there is no evidence that anyone at the NoTW made any proper effort to investigate the veracity of the allegations made by Mr Goodman.381 Apart from the review of the emails by Harbottle and Lewis, the internal investigation of the allegations made by Mr Goodman was limited to Mr Cloke and Mr Myler, speaking to the individuals named by Mr Goodman to ask whether there was any substance to them. Mr Myler said in his evidence that:382 pp96-97, lines 24-12, Christopher Blackhurst, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/ Transcript-of-Morning-Hearing-10-January-2012.pdf p11, lines 18-22, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-15-December-20111.pdf p14, ibid p7, para 6.6, ibid p61, lines 6-10, Adam Smith, ibid para 3.19, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Christopher- Graham.pdf

"in the absence of any evidence to support Mr Goodman's allegations they were denied. Very strongly."

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7.24 Mr Chapman said that the right thing to do was to investigate whether there was any

foundation to the allegations.383 However, Mr Myler and Mr Cloke appear to have accepted at face value the denials of those individuals named by Mr Goodman. It does not appear that anyone at the title took seriously the possibility that the allegations were well-founded or, given the very substantial sums that he had been paid, even investigated precisely what Mr Mulcaire had been doing and for whom he had been working.

7.25 Mr Crone said during his evidence that he had believed from the outset that the claim that the

unlawful voicemail interception had been the action of "one rogue reporter" was wrong.384 Mr Crone had attended all the hearings at the Central Criminal Court, including the hearing at which Goodman and Mr Mulcaire were sentenced. He had "…formed a strong impression that what was said about others at News International commissioning Mulcaire's accessing in relation to the non-royal victims was based upon more than circumstantial evidence."385 Mr Crone agreed during his evidence that one reason for forming that view was that counts 16 to 20 did not relate to Royal issues and would therefore be outside Mr Goodman's area of interest.386 When asked whether he had shared his view with others at NI that the "one rogue reporter" claim was wrong he replied:387 https://www.financialtimes.net/cgi-bin/eudev.cgi/fess/dummyHtmlPage?pagecode=ABOUT_FT&param=4 p98, lines 16-19, Tom Crone, ibid http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Supplemental-Submission-by-Transmedia- Watch1.pdf p41, Sir Denis O'Connor, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/MPS-4-HMIC-without- fear-or-favour.pdf p54-55, lines 2-6, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-31-May-2012.pdf; see also on the same issue p60, Jeremy Hunt, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/05/Transcript-of-Afternoon-Hearing-31-May-2012.pdf p10, lines 1-5, ibid

"I had discussions which were privileged, yes. But I don't think any of them involved me saying there's clear and hard evidence, to be perfectly honest." E

7.26 Mr Crone explained that he took no other action because the police showed no signs of

continuing the investigation or making more arrests and "the company's primary thought was to draw a line under it".388 Certainly it appears that whatever privileged discussions Mr Crone might have had he did nothing to change the view that Mr Myler had formed, namely that there was no evidence to justify an investigation into possible unlawful or unethical behaviour in the newsroom at the News of the World. Mr Myler explained that apart from the investigations into the allegations made by Mr Goodman during his appeal against his dismissal, he relied heavily on the fact that the police investigation had gone no further than the charges against Mr Goodman and had not resulted in any suggestion by the police to the News of the World that there was a wider problem.389

The Goodman and Mulcaire settlements 7.27 In July 2007 NI settled a claim for unfair dismissal brought by Mr Goodman, making a payment

of a further £140,000 in addition to a £90,000 notice payment that had been made in February 2007 when Mr Goodman was dismissed.390 The focus in dealing with Mr Goodman's claims was, according to Mr Chapman, to manage the risk of further reputational damage to the company. The settlement agreement contained a confidentiality clause.391

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7.28 The circumstances of Mr Goodman's dismissal create an impression that his criminal conduct

was viewed not as an outrageous breach of the law, the Code and the company's policies, but as something akin to a regrettable oversight in an old and trusted employee. The response to the conviction and Mr Goodman's allegations suggest that the possible widespread use of illegal methods of obtaining information was regarded, at the highest, as a reputational risk if exposed. There is no sign that the News of the World regarded the fact that criminal conduct may have flourished as a significant risk either from a corporate governance or operational perspective. The potential underlying truth of the allegations was apparently regarded as a second order issue.

7.29 Running parallel with the dispute between NI and Mr Goodman was the similar dispute

between NI and Mr Mulcaire, who was not an employee but who sought similar financial recompense. In April 2007 Mr Mulcaire claimed that his contract with NI gave him employment rights and that NI had not followed the correct statutory procedures when it terminated the contract in January 2007. The view was taken that there was a significant risk that an employment tribunal would find that Mr Mulcaire did have employment rights. Mr Chapman explained his analysis:

"When I analysed the position, based on the usual parameters, mutuality of obligation, E control, right of substitution, it looked very much to me like Mr Mulcaire was an employee, and I understand that subsequently Farrers took that view as well."392

Mr Mulcaire was paid approximately £80,000.393 Mr Chapman agreed that the reasoning process that led to alighting upon a settlement figure for Mr Mulcaire was more or less the same as that which applied to Mr Goodman, namely the need to limit reputational harm.394

7.30 The approach of the company to severance payments or payments in lieu to Mr Goodman

and Mr Mulcaire does not appear to convey corporate concern at their criminality; the payment to Mr Coulson395 may be considered slightly differently but is starkly in contrast to its approach to other employees such as Mr Driscoll.396

The Gordon Taylor litigation

7.31 The next significant event was the civil claim for damages brought by Gordon Taylor in the

spring of 2008. As Mr Crone, Mr Chapman and Mr Myler stated repeatedly in evidence, the desire of the News of the World was to draw a line under the matter. As a result, the claim cannot have been well-received, not just because of the obvious financial implications, but also because of the potential reputational harm that would result even from only a repeat exposure of the facts of the prosecution of Mr Goodman and Mr Mulcaire.

7.32 The claim was brought against NGN and Mr Mulcaire for breach of confidence, misuse of

private information and breach of privacy. When Mr Taylor served his claim he provided no documentary evidence to support it and NGN filed a defence denying any involvement. However, Mr Taylor then applied for, and obtained, an order requiring the police to release the prosecution papers and evidence to his solicitors. Among those papers was the contract between Mr Mulcaire and the News of the World to pay Mr Mulcaire £7,000 for information

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about an affair being conducted by Mr Taylor and the "for Neville" email, which enclosed transcripts of voicemail messages from Mr Taylor's mobile phone.397 Mr Crone recorded in a briefing note on 24 May 2008 that this material was "fatal to our case".398 "Recognising the inevitable", Mr Crone instructed NGN's solicitors, Farrer & Co, to make an offer to Mr Taylor of £150,000 plus costs.

7.33 In the light of the awards that had been made for breach of confidence and invasion of privacy,

this was a very substantial offer but Mark Lewis, of the solicitors instructed to pursue the claim, replied that Mr Taylor was not interested in settling and wanted to take the matter to trial. Mr Crone sought advice from Michael Silverleaf QC about how NGN should proceed.399 The advice from Mr Silverleaf, dated 3 June 2008, was very clear and echoed what Mr Crone had already concluded. Mr Silverleaf concluded that:400 p3, para 11, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lisa-MacLeod.pdf p1, para 6, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Exhibit-JCP21-Select- Commitee.pdf pp3-4, ibid p53, lines 11-18, ibid p52, lines 7-18, ibid p14, lines 16-17, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf

"NGN's prospects of avoiding liability for the claims of breach of confidence and invasion of privacy…… are slim to the extent of being non-existent."

7.34 He found it difficult to give clear advice on the level of damages that might be expected but

put it within a range of £25,000-£250,000 or even slightly more.401 In addition, Mr Silverleaf reflected on what the papers told him about the quality of the defence filed by the News of the World, stating:402 p4, para 14, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-Lisa-MacLeod.pdf p39, lines 12-16, Julian Pike, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-13-December-2011.pdf p4, ibid p32, lines 6-8, Lord Condon, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-6-March-20122.pdf p59, lines 6-16, Jeremy Hunt, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-31-May-2012.pdf p42, lines 16-19, Richard Thomas, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-9-December-2011.pdf E "In the light of these facts, there is a powerful case that there is or was a culture of illegal information access used at NGN in order to produce stories for publication."

7.35 Also on 3 June 2008 Julian Pike, a partner at Farrer & Co, told Mr Taylor's solicitors that NGN

was about to make an offer of £350,000. He said that NGN were happy that this would not be beaten by the amount that might be awarded at trial, but that they were prepared to pay the higher amount in order to resolve the matter that week and on the basis that the deal would be confidential.403 Mr Pike then spoke to Mr Taylor's solicitor, Mr Lewis, on 6 June 2008. Mr Lewis indicated that Mr Taylor would want at least £1 million plus costs "not to open his mouth". The report of the conversation made by Mr Pike shows a desire on the part of Mr Taylor to pursue the claim in order to demonstrate that voicemail interception was "rife in the organisation".404 Ultimately NGN settled with Mr Taylor for £700,000, of which £425,000 was attributed to damages and the balance to costs.405

Who knew what? 7.36 It is not clear whether Mr Crone, who attended the Central Criminal Court, made any senior executives aware of the key matters that indicated that the practice of unlawful voicemail

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interception was not confined to Mr Goodman. Those matters were: the content of counts 16 to 20 on the indictment; the fact that they were brought against Mr Mulcaire but not Mr Goodman; the fact that they related to victims who were of no apparent interest to a royal correspondent and the sentencing remarks of Gross J. Mr Chapman said that he had obtained a copy of the sentencing remarks at the request of Daniel Cloke, and on behalf of Mr Crone, but that he did not read them himself.406 Mr Myler claimed to be unaware of the sentencing remarks.407 There is no reason to doubt what Mr Myler says but, given the background and his own perception of the newsroom, this lack of interest is also remarkable.

7.37 In short, Mr Crone and Mr Chapman were both clearly aware of the allegations made by Mr

Goodman in his appeal against dismissal, but there is no evidence that they were known more widely. Mr Myler was also aware of them to the extent that they were demonstrated by the documents disclosed by the police for the purposes of the claim brought by Mr Taylor (these documents were also seen by Mr Crone).

7.38 The extent of James Murdoch's knowledge of the allegations is not clear. There was a

discussion between Mr Myler and James Murdoch of which neither participant claims to have a substantial recollection. However, Mr Pike made a note of a subsequent telephone conversation that he had with Mr Myler on 27 May 2008,408 during which Mr Myler relayed to

E Mr Pike what he explained were the relevant points of his conversation with James Murdoch.

The note is not straightforward to interpret. It makes reference to the fact that Mr Goodman "sprayed around allegations"409 but it is not clear whether that was a reference to what had been discussed with James Murdoch or to the beginning of a subsequent discussion between Mr Myler and Mr Pike. James Murdoch contended that the note of his conversation with Mr Myler did not go beyond recording his view that they should wait for the opinion of leading Counsel, which had already been sought.410 James Murdoch said in evidence that Mr Myler had not taken the opportunity to alert him to the fact that there were allegations that voicemail interception at the News of the World went wider than Mr Goodman.411

7.39 There is also a dispute about how high within the organisation the advice from Mr Silverleaf

was seen. There is no doubt that Mr Crone412 read it. Mr Myler said in evidence that he was told the gist of it but did not see the actual advice and was not told that Mr Silverleaf's opinion was that there was a "powerful case that there is or was a culture of illegal information access used at NGN in order to produce stories for publication."413 James Murdoch said that the opinion of Mr Silverleaf was mentioned to him but not shown to him (which he explains is not unusual as the Chief Executive), and that he was not told that there was new evidence that NGN's involvement in voicemail interception went beyond Mr Goodman.414 What is

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clear is that, even following the unequivocal opinion of Mr Silverleaf, no action was taken to investigate whether there was a culture of obtaining information by unlawful means. Instead, the full focus of the management team was on handling the litigation and the potential reputational repercussions.

7.40 On 7 June 2008 Mr Myler forwarded an email chain to James Murdoch which made clear that

Mr Taylor was asserting that unlawful information gathering techniques were "rife within the organisation".415 The message from Mr Myler read:

"James, update on the Gordon Taylor Professional Football Association case. Unfortunately it's as bad as we feared. The note from Julian Pike of Farrers is extremely telling regarding Taylor's vindictiveness but again that speaks for itself. It would be helpful if Tom Crone and I could have five minutes with you on Tuesday."

7.41 James Murdoch explained in evidence that he did not read all the email chain, and did not

read the specific allegation made by Mr Taylor because he received the email on a Saturday when he was with his family. He said that since he was due to meet Mr Myler to discuss the issue on the following Tuesday he did not feel he needed to read beyond the request for a meeting.416 James Murdoch replied to the email within two minutes of receiving it. The speed and content of his reply appear to support his claim not to have focused on the key allegation. E

7.42 On 10 June 2008, Mr Myler, Mr Crone and James Murdoch met to discuss the civil claim

brought by Mr Taylor. Mr Crone said in evidence that he probably took with him copies of Mr Silverleaf's opinion, the pleadings from the case, spare copies of the front page of the "for Neville" email and his earlier briefing note.417 Crone said that he could not recall whether any of these documents were handed to James Murdoch but that he was "pretty sure" that he held up the front page of the "for Neville" email.418 Mr Crone was very clear that the "for Neville" email was discussed, and that James Murdoch was told that it was direct and hard evidence of involvement in voicemail interception beyond Mr Goodman and Mr Mulcaire.419 Mr Myler said that he did not have any useful recollection of what specifically was discussed at the meeting or what documents were discussed or shared.

7.43 James Murdoch said in evidence that he was told at the meeting that there was evidence

that linked the interception of Mr Taylor's voicemail messages to the NoTW and that the case would certainly be lost and should be settled. His recollection was that Mr Crone and Mr Myler told him that counsel's advice on the level of settlement was that: "the number could be upwards of … £425,000, so they said half a million to a million pounds with costs in it."

7.44 James Murdoch said that it was established at the meeting that it was better to settle at an

amount that would avoid litigating a case that would be lost than "drag up all these things, a painful episode in the past and what not".420 He also stated that the discussion about the "for Neville" email was limited to the fact that it linked the NoTW to the interception of Mr Taylor's voicemail messages and that there was no discussion about the fact that it suggested the involvement of other NoTW journalists. He said that he was not shown a copy of the

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email421 or the opinion of Mr Silverleaf, nor told that the opinion of Mr Silverleaf was that there was evidence that the practice of voicemail interception was used by journalists other than Mr Goodman.422

7.45 Given the significance of the issue, it is necessary also to deal with the extent to which Rupert

Murdoch had knowledge of the relevant facts. Rupert Murdoch said in evidence that he knew nothing of the settlement of the claim brought by Mr Taylor when it happened in 2008. He said that he first learned of it in 2009 and was very surprised by the size of the settlement.423 He recalled discussing with James Murdoch why the settlement was so high, but denied that there was any discussion about the fact that Mr Taylor had evidence of further illegality at NoTW or that NGN had had to settle at that level to buy the silence of Mr Taylor. He said that James Murdoch's explanation for the value of the settlement was that, though high, it was less than the anticipated cost of a full trial.424

7.46 Rupert Murdoch claimed that senior management at NI:425

"…were, all misinformed and shielded from anything that was going on there... there's no question in my mind that maybe even the editor, but certainly beyond that someone took charge of a cover-up which we were victim to".

E

7.47 He went on to say that the culture of cover-up emanated from:

"one or two very strong characters ………or the person I'm thinking of…..was a clever lawyer and forbade people to go and report to Mrs Brooks or to James."

7.48 Both Mr Myler and Mr Crone strongly denied that there was a culture of cover up at the

NoTW. Mr Crone accepted that everyone hoped that "it would all go away" if it could be kept quiet,426 but contended that the thinking was not to cover up criminality but to avoid reputational damage through bad publicity.427 There is undoubtedly a fine line between the two. Mr Myler, similarly, said:428 Claire Enders, Competitive Pressures on the Press, Seminar 6 October 2011, p8, ibid p35, lines 15-23, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-15-December-20111.pdf p27, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Witness-Statement-of-Alastair-Campbell.pdf p32, lines 3-16, John Twomey, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-19-March-20121.pdf p128, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf ss22, 24, 30, 35, 37, 39, 42, and 43(1)

"I don't believe it was a cover-up….and I don't believe it's wrong or unreasonable of any business to try to protect the reputation of itself, particularly after what had happened in the course of 2006 and 2007."

7.49 Whatever the truth of what was discussed on 10 June 2008, the evidence outlined above

points to a serious failure of governance within the NoTW, NI and News Corporation. There was a failure on the part of the management at the NoTW to take appropriate steps to investigate whether there was evidence of wrongdoing within the organisation. Although I endorse the right of any business to seek to protect its reputation, it surely must first take every step to get to the bottom of what had happened. To argue that the decision by the police to conclude their criminal investigations precluded the requirement for a proportionate

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but robust internal investigation is, in the circumstances, of real concern; and the attitude at NoTW to the police investigation equally meant that reliance could not be put on their having done so. In any event, if the explanation of James and Rupert Murdoch is correct, far from simply limiting external damage to reputation, one or more parts of the management at the NoTW was engaged in a determined cover-up to keep relevant information about potential criminal activity within the organisation from senior management within NI.

7.50 Having made that point, however, I must make it clear that if James Murdoch was unaware

of the allegations, his lack of knowledge is, at least in part, only as a result of chance, rather than as the consequence of a sustained campaign by Mr Myler or Mr Crone (if there was one) deliberately to keep him in the dark. The fact is that had he read, in detail, the entirety of the email that he received on 7 June 2008, there was sufficient to put him onto a line of enquiry which could have led to an investigation of the entire issue. It also depends on precisely what he was told on 10 June 2008.

7.51 It is sufficient to say that if James Murdoch had been the victim of a cover-up, or an attempt

to minimise the gravity of the position, then the accountability and governance systems at NI would have to be considered to have broken down in an extremely serious respect. If James Murdoch was not the victim of an internal cover up then the same criticism can be made of him as of Mr Myler or Mr Crone in respect of the failure to take appropriate action E to deal with allegations of widespread criminality within the organisation.

7.52 A similar analysis stands in respect of News Corporation. Although there is no evidence

from which I could safely infer that Rupert Murdoch was aware of a wider problem, it does not appear that he followed up (or arranged for his son to follow up) on the brief that he believed had been given to Mr Myler to "find out what the hell was going on", leaving the matter solely in the hands of Mr Hinton. If News Corporation management, and in particular Rupert Murdoch, were aware of the allegations, it is obvious that action should have been taken to investigate them. If News Corporation were not aware of the allegations which, as Rupert Murdoch has said, have cost the corporation many hundreds of millions of pounds, then there would appear to have been a significant failure in corporate governance and in particular in the effective identification and management of risks affecting NI and, thus, the corporation.

7.53 I have given careful consideration as to whether I should go further, and conclude that Mr

Crone's version of events as to what occurred on 10 June 2008 should be preferred to that of James Murdoch. There are aspects of the account of Mr Murdoch that cause me some concern: in particular, it is surprising if the gist of Mr Silverleaf's opinion was not communicated to him in circumstances where the potential reputational damage to the company, of which he was CEO, was likely to be great if an early settlement of the claim brought by Mr Taylor were not achieved.

7.54 Furthermore, Mr Myler and Mr Crone had no reason or motive to conceal relevant facts

from the senior man, as borne out by the former sending James Murdoch the chain of emails containing the 'bad news' on the afternoon of Saturday 7 June 2008. Not merely does this throw light on Mr Myler's state of mind on that date, it provides some indication as to what the agenda might have been for the meeting three days later. On the other hand, I also have serious concerns about the evidence of Mr Crone and Mr Myler about this meeting: given the significance of the issue, it is surprising that there was not a full blown risk analysis with options for James Murdoch to consider. After all, this litigation represented the first of a number of potential actions and there was, at the very least, a real risk that the problems were

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likely to get worse as the other known victims (as represented by the criminal investigation if none other) could and doubtless would also pursue claims.

7.55 It is here that I must return to the Terms of Reference and to recognise that the detail of

who knew what is properly part of Part 2 of this Inquiry not least because of the ongoing criminal investigation. Furthermore, the nature of the process of this part of the Inquiry has meant that, in relation to these extremely fact sensitive meetings, there has been insufficient opportunity for detailed cross examination of precisely what was said by whom to whom. In the circumstances, I do not seek to reach any conclusion about precisely what transpired at this meeting. For present purposes, it is sufficient to repeat that whoever's account is correct as to what happened on 10 June 2008, there was no subsequent analysis of the consequences in relation to oversight and internal governance.

7.56 In truth, at no stage, did anybody drill down into the facts to answer the myriad of questions

that could have been asked and which could be encompassed by the all embracing question "what the hell was going on"? These questions included what Mr Mulcaire had been doing for such rewards and for whom?; what oversight had been exercised in relation to the use of his services?; why had Mr Goodman felt it justifiable to involve himself in phone hacking?; why had he argued that he should be able to return to employment and why was he being (or

E why had been) paid off. On any showing, these questions were there to be asked and simple

denials should not have been considered sufficient. This suggests a cover up by somebody and at more than one level. Although this conclusion might be parsimonious, it is more than sufficient to throw clear light on the culture, practices and ethics existing and operating at the News of the World at the material time. The way in which further litigation was managed (including the action brought by Max Clifford) only serves to underline the same issue both justifying and reinforcing the same conclusion.