Reports that Matter

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

September 2010: The New York Times

Section 11 of 140

September 2010: The New York Times

9.1 On 1 September 2010 the New York Times published an article entitled "Tabloid Hack Attack

on Royals, and Beyond".605 The article reported that, in the summer of 2010, five people had issued claims alleging that the NoTW had been intercepting their voicemail messages; it also referred to the judicial review of the handling by the MPS of the investigation. The article claimed that:

"The litigation is beginning to expose just how far the hacking went, something that Scotland Yard did not do. In fact, an examination based on police records, court documents and interviews with investigators and reporters show that Britain's revered police agency failed to pursue leads suggesting that one of the country's most powerful newspapers was routinely listening in on its citizens. "The police had seized files from Mulcaire's home in 2006 that contained several thousand mobile phone numbers of potential hacking victims and 91 mobile phone PIN codes. Scotland Yard even had a recording of Mulcaire walking one journalist – who may have worked at yet another tabloid – step by step through the hacking of a soccer official's voice mail, according to a copy of the tape. But Scotland Yard focused almost exclusively on the royals case, which culminated with the imprisonment of Mulcaire and Goodman. When police officials presented evidence to prosecutors, they didn't discuss crucial clues that the two men may not have been alone in hacking the voice mail messages of story targets."

9.2 The article also reported that "several investigators" had said in interviews that the MPS was reluctant to conduct a wider inquiry in part because of its close relationship with the NoTW.

402

It reported that during interviews with more than a dozen reporters and editors at the NoTW claims were made that voicemail interception was "an industry-wide thing", that "Every hack on every newspaper knew this was done" and that it was pervasive at the NoTW. The article alleged that illicit methods of obtaining confidential information were known as "the dark arts". The article also made the following allegations:

(a) That in the documents seized from Mr Mulcaire there were at least three names of other NoTW journalists. (b) That the MPS had a symbiotic relationship with the NoTW: "The police sometimes built high-profile cases out of the paper's exclusives, and News of the World reciprocated with fawning stories of arrests". (c) The MPS detectives had faced pressure from within their own organisation and were reminded of the "long-term relationship with News International". (d) The MPS did not discuss certain evidence with the CPS, including the notes which suggested the involvement of other reporters. (e) By "sitting on" the evidence for so long, the MPS had made it impossible to get information from phone companies, which do not keep records indefinitely.

E (f) By only notifying a small proportion of those whose phones may have been illegally

accessed, the MPS had effectively shielded the NoTW from a large number of civil actions.

9.3 On 3 September 2010 one of the reporters quoted in the New York Times article, Sean Hoare,

was interviewed on BBC Radio 4. He repeated the expression "the dark arts" and said that "phone hacking" was endemic in the industry. He made clear allegations which, in order to avoid prejudice to the ongoing investigation, are not repeated here.

9.4 Given the resurgence of the allegations and the additional detail provided by the New

York Times and Mr Hoare, Mr Yates should have reflected carefully on the exercise that he conducted in 2009 and reviewed, in more depth, what evidence was gathered during Operation Caryatid and what it might show. Once again, however, he failed to engage with the substance of what was alleged. He did not, as he should have done, revert to DCS Williams and DCS Surtees and ask them for full details of what the "crucial clues" or leads might be that indicated that Mr Goodman and Mr Mulcaire were not acting alone or ask them to explain fully what indications there might be that the three named journalists had been involved in the conspiracy. It is quite clear that having made the dogmatic and over-hasty decision on 9 July 2009, he then failed to assess anything that might conceivably challenge the correctness of his initial decision with anything approaching an open mind. It remained the case that Mr Yates was not prepared to entertain the possibility that there was anything in the vast quantity of documentation held by the police, that had not been analysed, that could itself generate lines of enquiry; he was interested only in the question of whether the New York Times could itself produce evidence.

9.5 On 5 September 2010 Mr Yates issued a press statement which included the following:606

"The New York Times contacted the MPS about their investigation. Our stance remains as before. We have repeatedly asked them for any new material that they have for us to consider. We were never made aware of the material from Sean Hoare before the article's publication. We have sought additional information from them and will

403

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

consider this material, along with Sean Hoare's recent BBC Radio interview, and will consult the CPS on how best to progress it."

9.6 Mr Yates also took the opportunity to re-state the lack of evidence that Lord Prescott had been a victim:

"Separately, we are aware of the current claims in the media from, amongst others, Lord Prescott about his view that his phone was hacked. There remains to this day no evidence that his phone was hacked by either Mulcaire or Goodman. This is a matter of public record."

9.7 On 6 September 2010 Mr Yates chaired a Gold Group meeting. Neither DCS Williams nor DCS

Surtees were invited to the meeting. The terms of reference for the Gold Group607 were stated to be: "To provide ACPO oversight of the various MPS strands relating to 'phone hacking'". The strands were listed and included "New information in the public domain by ex News of the World employees, which relates to Andy Coulson, Sean Hoare, Sharon Marshall, Ross Hall, Brendan Montague and Paul McMullan" and "New allegations or new material as yet unknown". The summary of the minutes of the meeting on 6 September 2010 stated that:608

"JY explained that the purpose of the actions required was to seek clarity as to whether there was any new evidence amongst the recent media reporting before making any E further decision. This is not, at this stage, a further investigation. DSupt Haydon (as ACSO's former Staff Officer) will lead this separate and independent effort to clarify the above."

9.8 Action points required Detective Superintendent Haydon (who had been appointed SIO) to

review the transcripts of different statements in the public domain, liaise with the CPS to discuss any new material that might come to light and consider interviewing Sharon Marshall about the statements made in her book. There was also an action point for Mr Yates to consult the DPP or an appropriate deputy. Late in the evening of 6 September 2010, Mr Yates made contact with the CPS. According to the Chief Crown Prosecutor for London, to whom he spoke, Mr Yates said that he wanted to update Mr Starmer and let him know that he (Mr Yates) did not intend to reopen the investigation but merely to clarify what had been said in the New York Times article by inviting the journalists to provide their material and by interviewing Sean Hoare; thereafter, they might then seek the advice of the CPS.

9.9 On 8 September 2010 D/Supt Haydon sent an email to the CPS setting out the action the MPS was proposing to take following the article. In his email he said that he had been asked:609

"to clarify the new information in the public domain (since 1st September 2010) to establish if there is any new evidence in the phone hacking case … I wish to make it clear that I am not reinvestigating the original case so knowledge of the case and retrieving case papers is not necessary."

9.10 On 9 September 2010, Mr Yates convened a Gold Group meeting to agree current actions.

D/Supt Haydon was directed to define the terms of reference for the work being undertaken and extend the remit to cover additional individuals who were coming forward.610 The exercise, although stated not to be an investigation, was subsequently given the name Operation Varec and the following terms of reference:611

404

"To assess whether allegations being made in the media since 1st September 2010 provided any new evidence of criminal offences, namely unlawful interception of communications, at News of the World, in 2005/2006."

9.11 At a meeting of the Gold Group on 10 September 2010, it was noted that the new witnesses,

who had been identified by the New York Times article, would need to be approached as part of Operation Varec. D/Supt Haydon informed those present that the New York Times had been asked for their material.612

9.12 At around this time, D/Supt Haydon asked a HOLMES supervisor to carry out a search on

the HOLMES database for evidence that Lord Prescott had been targeted by Mr Mulcaire. In an email dated 10 September 2010,613 he was informed by that supervisor that the name "John Prescott" appeared on p183 of seven notepads seized from Mr Mulcaire and that word "PREZA" appeared once in handwritten notes. The references to "JLP reset PIN 3333" and "JLP" were also brought to his attention but it was suggested to him that, given the surrounding information, they related to Jamie Lowther-Pinkerton. He was also informed that there were no results for searches on popular media nick-names for Lord Prescott. It appears that Lord Prescott was not given this information, but it is right to repeat that, in December 2009, he had been informed that his name and other details appeared in the Mulcaire documents.

E

9.13 Reverting to the position of the CPS, following the publication of the New York Times article,

Mr Starmer quickly took stock of what action he needed to take. Mr Starmer explained that:614

"Whilst respecting the views of David Perry QC and Louis Mably, I had in fact had concerns for some time about the emphatic view of the construction of sections 1 and 2 of RIPA that had been articulated by Mr Perry QC in 2009 and adopted by me in my letters and evidence to the CMS committee. I therefore decided that it would be sensible to look again at the matter, particularly since it appeared that the CPS might be required to give the MPS advice in relation to the allegations in the New York Times."

9.14 In the result, Mr Starmer decided to commission two written advices: the first was to be from

original counsel, who would be asked to consider the original papers and give a definitive view of the approach taken to s1 of RIPA in 2006 to 2007; the second advice was sought from fresh counsel, Mr Mark Heywood QC, who had had no previous connection to the case.

9.15 The DPP received the written advice from Mr Perry on 14 September 2010.615 Having this time

had the opportunity to consider the papers, Mr Perry concluded that for purposes of the 2006 prosecution it had not in fact been necessary to resolve the question of whether or not s1 of RIPA required proof that the interception had taken place before the intended recipient had accessed the message (given that Mr Mulcaire had pleaded guilty to the indictment). Having refreshed his memory from the papers, Mr Perry stated that the oral advice he gave in 2006 had been that the proper construction of RIPA was a difficult issue, with tenable arguments either way; and that a narrow approach to the construction of RIPA had not limited the scope of the police investigation.

9.16 Upon receipt of this advice Mr Starmer was naturally concerned that this did not fully correspond with what he had been told in 2009, which itself had been the basis of his letters

405

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

and evidence to the CMS committee. Mr Perry was therefore instructed to advise to whether the "for Neville" email should now be viewed in a different way in the light of his more recent advice. On 16 September 2010, Mr Perry provided a note616 in which he confirmed that the construction of RIPA set out in his advice written 18 months earlier had been taken from the note drafted by DCS Williams. He also made it clear that his conclusions in relation to the "for Neville" email remained unchanged.

9.17 On 17 September 2010, the DPP received written advice from Mr Heywood.617 In a sustained

and sophisticated analysis of the competing legal arguments, Mr Heywood inclined to the view that the broader construction of RIPA was to be preferred, having regard to the purpose underpinning the legislation and additional materials sent to him by First Parliamentary Counsel. Mr Heywood added that, in any event, even if the narrow interpretation should turn out to be correct, it would make no difference to investigators, because the inchoate offences of conspiracy or attempt would be unaffected by a narrow construction of the legislation.

9.18 In his subsequent dealings with Parliamentary Select Committees, Mr Starmer no longer

adhered to a narrow interpretation of RIPA: in essence, he indicated that the approach he intended to adopt would be to advise the police and CPS prosecutors to proceed on the assumption that a court might adopt a wide interpretation of sections 1 and 2 of RIPA. E

9.19 On 1 October 2010, D/Supt Haydon and another officer had a meeting with Simon Clements

and Asker Hussain of the CPS. D/Supt Haydon provided a detailed update on the progress of Operation Varec.618

9.20 On 4 October 2010, The Dispatches programme, "Tabloids, Tories and Telephone Hacking",

reported allegations that the NoTW had been involved in the unlawful interception of voicemail messages. Following this programme, D/Supt Haydon wrote to Colin Myler asking him to provide relevant material including transcripts of telephone calls or emails that may be related to unlawful interception and a full list of the names of employees who worked on the 'Features' or 'News' desks for the period 2005 to 2006.619 Mr Myler replied on 13 October 2010, stating:620

"I am aware of the allegations made in the Dispatches programme, concerning telephone voicemail accessing in 2005-2006. However, I am as sure as I can be that since I became editor of the News of the World in January 2007 neither the newspaper nor its staff have collected or obtained information by means of unlawful interception. Similarly, I am as sure as I can be that neither the newspaper nor its staff are in possession of such material whenever it may have originally been collected."

9.21 He indicated that they were putting together a list of names which they would forward to

him. That list was emailed by Tom Crone to the MPS.621 D/Supt Haydon then drafted a letter which Mr Crone circulated on his behalf, on 22 October 2010, to 19 members of staff.622 In that letter D/Supt Haydon explained that he was considering any new material that had come to light as a result of the Dispatches programme and said:623

406

"I understand you were employed on either the News or Features desks during the relevant period – 2005/06. If you feel you are able to assist, and I stress this is in relation to the issue of 'phone hacking' only, then I request you make contact with me on the contact details provided in this letter."

9.22 Meanwhile, at the CPS, it appears that Mr Starmer was frustrated that the matter was not

going to be investigated. Mr Clements recorded in a note of a meeting on 19 October 2010 that Mr Starmer said: "No one wants to reopen the investigation".624 Mr Starmer explained in evidence that:625

"… I honestly can't remember what I said at that meeting but I obviously said something. Mr Clements does remember it and wrote it down at the time and thought I was frustrated because it appeared to me that others wouldn't reopen the investigation. "I'd had the meeting back in 2009 where a course of action I thought was reasonably sensible didn't look as if it was going to find favour, and I'd been told in September 2010 that whatever else was going to happen, this was not going to be reinvestigated. I think if I was expressing any frustration, it was probably borne of these two things."

E 9.23 On 12 November 2010, D/Supt Haydon submitted to the CPS an "Advice file", dated 10

November 2010, which was a formal request for advice on issues arising from Operation Varec, including whether there was evidence to justify or support a re-opening or re-investigation of Operation Caryatid and the prospects of prosecuting any individuals. He stressed in the document that his task had not been to re-open or re-investigate the cases of Mr Goodman and Mr Mulcaire, but noted that there were links and crossovers with the prosecution. He set out details of the four phases of the investigation (or scoping exercise).

9.24 The first phase had been to ask the New York Times to provide any material in support of its

article. The paper had refused the request, claiming journalistic privilege. It was also reported that:

(a) The police interviewed Sean Hoare under caution in the hope that they could convert his claims and admissions into evidence, but he made no comment. (b) The police interviewed Sharon Marshall, not under caution, but she did not disclose any new evidence. (c) The police approached Paul McMullan, a former 'features' journalist at the NoTW, on numerous occasions in order to interview him under caution, but he declined to cooperate. (d) The police interviewed Brendan Montague, a freelance journalist, not under caution and more as a victim, but he did not disclose any new evidence. (e) The police interviewed under caution Ross Hall, who had authored the "for Neville" email and that he had given an account of his employment at the NoTW as a runner in 2005/6 but made no disclosures relating to voicemail interception. (f) The police interviewed Andy Coulson in the presence of his solicitor, who denied any involvement with or knowledge of phone hacking.

9.25 D/Supt Haydon noted that there were no communications data that would support a criminal investigation or prosecution.

407

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

9.26 During phase two the police approached Mr Goodman and Mr Mulcaire but both declined

to assist the investigation. Neville Thurlbeck was interviewed under caution. Mr Thurlbeck produced a pre-prepared statement and denied knowledge of ever receiving the "for Neville" email. He also denied any involvement in voicemail interception and refused to answer any further questions. Greg Miskiw was interviewed under caution. He produced a pre-prepared statement in which he outlined his dealings with Mr Mulcaire but refused to answer any further questions. Matt Driscoll was interviewed. He was employed at the NoTW as a sports reporter but was dismissed in 2007 for supposed inaccurate reporting. He said in interview that he knew that voicemail interception was used as a technique but never used the technique himself and that it was not one used on the sports desk where he was employed. The police also sent letters to three supervisors employed by the NoTW who had been named in an anonymous letter. The police did not receive any responses to the letters.

9.27 During phase three, the police wrote to the Producer of the Dispatches programme "Tabloid,

Tories and Telephone hacking". In a letter to the MPS dated 22 October 2010, the Controller of legal and compliance for Channel 4 wrote:

"Having discussed the matter further with the producers who have direct dealings with the 13 individuals, they do not believe that any of the individuals would be prepared to assist your investigation. I also confirm that having spoken with the producers E they do not have any additional evidence that was not included in the broadcast programme that could assist the MPS and that is not already in the public domain."

9.28 The MPS also wrote to the editor of the Guardian, the Daily Telegraph, the Independent

and the NoTW seeking any new or additional material they held that could assist in the MPS investigation. No new material was forthcoming.

9.29 Finally, phase four involved writing to 19 members of staff still employed by the NoTW

(paragraph 9.21 above refers) to establish if any could assist or provide any information relating to voicemail interception. No response was received from any of them.

9.30 D/Supt Haydon then set out the following under the heading 'Conclusion':

"1. Has the current MPS investigation revealed any further evidence relating to unlawful interception of communications, namely mobile telephone voicemails, involving The News of the World? "It is my view that there remains a vast amount of press and media coverage, claims and allegations but with no substantive 'evidence' in support. There is some possible circumstantial evidence but in the absence of any communications data and any other supporting evidence, this cannot be progressed. "I accept that the evidential position does not meet the threshold for a referral to the CPS but in view of the vast media, public and political scrutiny in this case and due to both the MPS and CPS involvement to date, I consider a referral is appropriate in order to agree a joint current and future position in this case …"

9.31 On 10 December 2010 Mr Clements advised on Operation Varec on behalf of the CPS.626 He

concluded that the case did not pass the evidential stage of the test contained in the Code for Crown Prosecutors, namely that there must be sufficient evidence to establish that there is a realistic prospect of conviction. He added that he considered that the available evidence in fact fell "well below" the evidential threshold for prosecution. Given the on-going police investigation, it would be inappropriate for me to identify precisely what material had formed

408

part of the papers submitted to the CPS or to consider any analysis of the underlying material. Mr Clements also stated in the advice document that:

"I have agreed with Detective Superintendent Haydon that in the future if any revelations come to the attention of the Metropolitan police that he considers could properly be said to constitute new and substantial evidence of offending that we will meet together as a panel and conduct a joint assessment of the material and decide whether further assessment or investigation is likely to provide evidence to support criminal proceedings."

9.32 The DPP announced the conclusions reached by Mr Clements in a press statement that day.

9.33 Based on Operation Varec, Mr Yates has claimed that the issues raised by the New York Times

article were properly scoped in collaboration with the CPS.627 I do not agree. What Mr Yates scoped was a consideration of the material that had been put in the public domain by the New York Times and the Dispatches programme which itself involved a number of requests and interviews; having regard to the circumstances, it is not surprising that these were unrevealing. What he did not do was go back to the original allegation both in the Guardian and the New York Times, namely, that there was information in the documents seized from

E Mr Mulcaire which incriminated others at the NoTW. This was the reason for the allegation

that was so potentially damaging to the MPS that it was engaged in a cover up. The answer to this allegation was straightforward: without deciding to re-open Operation Caryatid, look at the material to find out if there is anything in it which bears out what has been alleged.

  1. December 2010: The Guardian article and the aftermath

10.1 On 15 December 2010, the allegations were provided with a fresh impetus when the Guardian

published allegations made by Sienna Miller in her civil claim against NGN and Mr Mulcaire. The article, entitled "Phone hacking approved by top News of the World executive – new files" reported that Particulars of Claim filed by Ms Miller alleged that the interception of voicemail messages on phones belonging to members of the Royal Household: "was part of a scheme commissioned by the [News of the World] and not simply the unauthorised work of its former royal correspondent, Clive Goodman, acting as a 'rogue reporter' as it [had] previously claimed."

10.2 The Particulars of Claim were based upon documents disclosed to her legal advisers by the

MPS following a disclosure application to the High Court. The Guardian article alleged that one of the documents disclosed implied that Mr Mulcaire had been instructed to intercept voicemail messages received by Ms Miller and also by her mother, her publicist, one of her closest friends, as well as Jude Law, her former partner, and his personal assistant. The article also reported that:

"The document, which has been released to the Guardian by the high court, suggests that the hacking of the two actors was part of a wider scheme, hatched early in 2005, when Mulcaire agreed to use 'electronic intelligence and eavesdropping" to supply the paper with daily transcripts of the messages of a list of named targets from the worlds of politics, royalty and entertainment." …

409

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

"The document is gravely embarrassing for Scotland Yard, which has held the information about the two actors in a large cache of evidence for more than four years and repeatedly failed to investigate it… "The new evidence implies that the targeting of the royal household, which led to the original police inquiry, was specifically commissioned by the paper. "In or about January 2005 the News of the World agreed a scheme with Glenn Mulcaire whereby he would, on their behalf, obtain information on individuals relating to the following: 'political, royal and showbiz/entertainment'; and that he would use electronic intelligence and eavesdropping in order to obtain this information. He also agreed to provide daily transcripts."

10.3 The article also alleged that the police had failed to interview four journalists who were implicated by the material already in police possession.

10.4 On 6 January 2011, the Guardian asked the CPS a series of detailed questions about whether

or not the CPS had been aware, in 2006, of the evidence that was emerging from the civil action brought by Ms Miller. Mr Starmer explained, frankly, that these were not easy questions to answer given that there was no one to hand within the CPS who had first-hand knowledge of the investigation and prosecution in 2006. Having said that, however, Mr Starmer was E becoming increasingly concerned by the evidence emerging from the civil claim and he decided that the time had come for a much fuller exercise. At that stage, what he wanted was an examination of all material available at that time, whether in the possession of the police or the CPS, and for some further assistance to be given to him about what consideration was given to it at the time. He explained:628 pp45-46, lines 16-8, Keir Starmer QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript- of-Afternoon-Hearing-4-April-2012.pdf p17, para 99, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Second-Witness-Statement-of- Rebekah-Brooks.pdf p20, line 20, ibid

"What then happened … was that as I understood it, some of the information that was emerging from the Sienna Miller civil action I was told had in fact been amongst the unused material. Now, this was the second time this had occurred. The first time was in relation to the Neville email, and now it was happening again in relation to the Sienna Miller material. And I'm afraid at that stage I thought nothing less than a root and branch review of all the material that we have and the police had is now going to satisfy me about this case. And that's why I indicated in fact to Tim Godwin, who I think was then Acting Commissioner, that I had for my part reached the view that we could no longer approach this on a piecemeal basis looking at bits of material and we really had to roll our sleeves up and look at everything."

10.5 In that context, a meeting took place on Friday 14 January 2011 attended by Mr Starmer,

Mr Yates and various other officials and police officers. Mr Starmer opened the meeting by stating that in view of recent events the time may well have come to reconsider everything that is or was available thereby enabling the CPS, if asked, to give comprehensive answers to current and future questions. The immediate riposte of Mr Yates was to assert that if new evidence were available he would examine it but that he did not believe this to be the position. The following appeared in notes of the meeting:629

"DH [a police officer]: Op Varec is the only new material in terms of G/M. There is nothing new – all the stuff is on the system. "JY: puts both organisations in difficult position: what did we do in 2009?

410

"DPP: looked at G/M and the decisions made and whether they were correct. This is a broader examination to go before panel (2006 and subsequent)."

10.6 In answer to the question whether the mood of the meeting was "all sweetness and light",

Mr Starmer stated the following in evidence:630 p53, lines 2-10, Keir Starmer QC, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Afternoon-Hearing-4-April-2012.pdf pp65-66, lines 13-2, James Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript- of-Afternoon-Hearing-24-April-2012.pdf pp21-22, lines 7-1, ibid

"I was absolutely clear in my mind at the beginning of that meeting I was going to settle for nothing less than a full review of all this material unless somebody blocked me access to it, and I approached it in that way. To be fair to Mr Yates, who did not seek to block that approach, and in the end agreed to it, but I have to say but by then I had reached the stage where I really was not in the mood for being dissuaded from my then course of action, I am afraid."

10.7 Mr Starmer also said that Mr Yates had a number of concerns about how the review would

be handled, but did not resist his proposal that there be a root and branch review.631 Mr Starmer highlighted that Mr Yates was keen that the MPS should request the review rather than having it imposed on them. They therefore agreed that Mr Yates would formally invite the DPP to conduct a review. After the meeting Mr Starmer decided that his Principal Legal Adviser, Ms Alison Levitt QC, should carry it out.

E

10.8 The account given by Mr Yates of this meeting had a different emphasis, and suggested that

he was, indeed, concerned about how matters had been dealt with and did not simply adopt a refrain that he would act if there were new evidence. He stated as follows in his witness statement:632

"In early January 2011, my level of concern as to how matters had been dealt with to date caused me to formally request the DPP to undertake a review of all the material in police possession. This he agreed to do and he tasked Alison Levitt, QC to undertake this task on his behalf."

10.9 It should be noted that Mr Yates was not questioned about this meeting or asked if he agreed

that he said that both organisations had been put in a difficult position, and if so, what he meant by it.

10.10 That same day Mr Yates wrote to the DPP in the following terms, acknowledging, apparently

for the first time, the possibility that there might be evidence in the existing material which would warrant further investigation:633

"We are both aware that there remain outstanding public, legal and political concerns. This is particularly so in relation to the various and recently reported high profile civil cases … "As a result, I consider it would be wise to invite you to further re-examine all the material collected in this matter. This would also enable you to advise me and assure yourself as to whether there is any existing material which could now form evidence in any future criminal prosecution relating to phone hacking."

411

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

10.11 Also on 14 January 2011 the CPS and the MPS issued a joint press statement to that effect.634

10.12 On 26 January 2011, NI provided the MPS with significant new information relating to

allegations of voicemail interception at the NoTW in 2005 to 2006, which had apparently been discovered whilst NI was dealing with requests for disclosure in the civil actions. NI had found three key emails implicating an employee other than Mr Goodman. That same day the MPS announced that it was re-opening its investigation into allegations of unlawful voicemail interception at the NoTW. Mr Yates claimed that it was this new evidence that brought about his decision to reopen the investigation.635

10.13 Once NI decided to cooperate, the evidential flood gates opened, providing material that

had not been made available to the police by Burton Copeland. I can only repeat that it is impossible to ascertain to what material Burton Copeland had access or what advice they provided.

10.14 To complete the chronology, on 4 July 2011, the Guardian reported that the NoTW had

"hacked" the mobile phone belonging to Milly Dowler. On 7 July 2011 the final edition of the NoTW was published, with the editorial admitting:

"Quite simply, we lost our way … Phones were hacked, and for that this newspaper is E truly sorry."

10.15 On 17 July 2011, for reasons not connected with this investigation but in the light of further

allegations relating to his conduct,636 Sir Paul Stephenson resigned and, on 18 July 2011, Mr Yates also resigned.637

10.16 On 20 July 2011 the Home Affairs Committee published its report: "Unauthorised tapping

into or hacking of mobile communications". The Committee expressed the following view of the exercise conducted by Mr Yates:638

"Although what Mr Yates was tasked to do was not a review in the proper police use of the term, the public was allowed to form the impression that the material seized from Mr Mulcaire in 2006 was being re-examined to identify any other potential victims and perpetrators. Instead, the process was more in the nature of a check as to whether a narrowly-defined inquiry had been done properly and whether any new information was sufficient to lead to that inquiry being re-opened or a new one instigated. It is clear that the officers consulted about the earlier investigation were not asked the right questions, otherwise we assume it would have been obvious that there was the potential to identify far more possible perpetrators in the material seized from Mr Mulcaire ..."

412
  1. The past unravels

The civil proceedings before Vos J and the disclosure process

11.1 The civil litigation has attracted extensive public interest and attention. It has also had

wider consequences beyond the confines of the claims for damages themselves. In order to understand the full extent of the interception, recording and use of their voicemail messages, so that they could properly present their claims, the claimants made disclosure applications which required NGN and the MPS639 to disclose various documents.

11.2 By way of example, on 6 December 2010 Vos J ordered the MPS to disclose the following classes of documents to Skylet Andrew:640

(a) Telephone records used by Mr Muclaire relating to the accessing of Mr Andrew's voicemail messages. (b) Documents evidencing communications between Mr Mulcaire and another person concerning the interception activities of Mr Mulcaire in relation to Mr Andrew's voicemail messages.

E

(c) Documents evidencing communications between Mr Mulcaire and employees of NGN concerning information about Mr Andrew. (d) Documents concerning payments for information made by NGN to Mr Mulcaire. (e) Transcripts of Mr Andrew's voicemail messages obtained from Mr Mulcaire. (f) Documents found during the MPS investigation referring to Mr Andrew or his mobile phone.

11.3 On 17 January 2011, Mr Mulcaire provided information to Mr Andrew indicating that he had

supplied information from voicemail messages belonging to Mr Andrew to the news desk at the NoTW, identifying the name of the person whom he alleged had asked him to intercept the voicemail messages.

11.4 As a further example, on 20 July 2011, Hugh Grant and Jemima Khan obtained an order, with

the consent of the MPS, for the disclosure of documents concerning the voicemail messages allegedly intercepted by Mr Mulcaire and forming the subject of newspaper articles about them in the NoTW and other newspapers.

11.5 As a result of the claim brought by Lord Prescott, the following statement entered the public domain,641 on 19 January 2012:

"On 3 December 2011 [NGN] admitted a list of matters including that it had entered into an agreement with [Mr Mulcaire] and paid him hundreds of thousands of pounds to obtain information about specific individuals for use by the News of the World journalists and publication in the newspaper. It is admitted that certain of its employees were aware of, sanctioned and requested the methods used by [Mr Mulcaire] which included the unlawful interception of mobile phone messages and obtaining call and

413

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

text data (which methods are known as "phone hacking"; obtaining information by "blagging": and, in one case, unlawfully accessing emails). It is also admitted that [Mr Mulcaire] had provided journalists at The News of the World with information to enable the said journalists themselves to intercept voicemail messages, [NGN] accepted that some information unlawfully obtained by [Mr Mulcaire] was used to enable private investigators employed by the News of the World, including Derek Webb, to monitor, locate and track individuals and place them under surveillance."

11.6 By January 2012, a large number of claims had been settled. NGN consented to the assessment

of aggravated damages on the basis that there were those at NGN who knew about its wrongdoing and sought to conceal it by putting out public statements they knew to be false, deliberately failing to provide the police with all facts of which they were aware, deliberately deceiving the police in respect of the purpose of payments to Mr Mulcaire and destroying evidence of wrongdoing.642

The judicial review of the actions of the MPS 11.7 The July 2009 Guardian article prompted a number of individuals to question whether their

voicemail messages had been intercepted. Four such individuals were Chris Bryant, MP for the Rhondda, Brendan Montague, Brian Paddick and Lord Prescott. All four contacted the E MPS asking whether this was the case.

11.8 Mr Bryant was informed that his name and telephone number appeared in the material

retrieved during the investigation. Mr Bryant said that the information provided was "vague and incomplete". By letter dated 25 February 2010, he requested further details having received information from his service provider to the effect that, in about December 2003, there had been three unlawful attempts to intercept his communications. He said that he was told by the MPS "informally in a telephone conversation that he would not be given any further information without a court order."643

11.9 Mr Paddick was told that there was no information to suggest that he had been subject

to unlawful monitoring or interception of his telephone. His solicitors enquired again and the MPS then reported that, in fact, his name and occupation did appear in the documents obtained during the investigation.

11.10 As regards Lord Prescott, as set out above, initially, Mr Yates personally assured him that

there was no evidence to suggest that his voicemail messages had been intercepted; he was not told about the references to his adviser and her telephone numbers and pass codes. The first intimation that this was not the case came in December 2009.

11.11 So far as Mr Montague was concerned, there was no evidence at the time the proceedings

were instituted that his name appeared in the documentary material recovered during the investigation. His concerns were generalised, rather than being based upon any specific incident or report. Ultimately, he did not dispute that no evidence had emerged that his name or details featured in any of the materials seized from Mr Mulcaire in 2006.

11.12 The claim for judicial review was issued on or around 14 September 2010. Lord Prescott was

added to the proceedings in November 2010. The claimants challenged the decisions of the MPS as to the scope of Operation Caryatid and the decision not to inform every person whose voicemail messages had or may have been intercepted that this had or may have occurred.

414

11.13 On 9 February 2011, the Directorate of Legal Services at the MPS wrote to Lord Prescott and

informed him that in "recent material supplied … by News International" there was an email (from an email address associated with Mr Mulcaire) dated 28 April 2006 which appeared to contain the details of the mobile telephone number and PIN number of the adviser to Lord Prescott and that there was reference to 45 messages.

11.14 On 10 March 2011, Mr Bryant was shown facing pages in a notebook seized from Mr Mulcaire

which contained telephone numbers which would have dialled his phone and very probably left voicemails messages, various addresses where he has lived, the names of his partners, his constituency, his home telephone numbers and other personal information.

11.15 On 15 March 2011, Mr Paddick was shown three documents obtained by the police in 2006.

The information included his police mobile phone number, the mobile phone number of his then partner and his former partner, the addresses and telephone numbers of numerous other associates, his own landline number and landline numbers of others. There was also a print out from the electronic records held by Mr Mulcaire which described Mr Paddick as a "project".

11.16 On 23 May 2011 the application for permission to proceed with a claim by way of judicial E review came before the Administrative Court.644 Mr Justice Foskett considered the facts

set out above and decided that in relation to the cases of Mr Bryant, Mr Paddick and Lord Prescott, each raised a claim worthy of consideration at a full hearing.645 Ultimately the claim for judicial review was compromised, with admissions being made by the MPS. The following declaration was agreed between the parties:

"In breach of its duties under Article 8 of the European Convention on Human Rights, in circumstances where the interference with the individuals' right to respect for their private lives may have amounted to the commission of a criminal offence, the defendant failed to take prompt, reasonable and proportionate steps to ensure that those identified as potential victims of voicemail interceptions were made aware of: "The interference with their right to respect for private life that may have occurred; "The possibility of continuing threats, where such threats had been identified; "The steps they might take to protect their privacy; and "Following the conclusion of the criminal proceedings against Glenn Mulcaire and Clive Goodman, the identity of those whom the police believed to be primarily responsible for the interception. "Such steps should have included informing the public generally, by announcements in the media, through the mobile telephone companies, or otherwise (and should have included, where appropriate, individual notification."

11.17 The declaration came before the court (Gross LJ and Irwin J) for approval. Given the

circumstances (namely a desire by both parties, for their own reasons, to settle the claim, together with the absence of argument as to the law), the Court made the agreed declaration but, at the same time, directed that it had no value as a precedent for future cases.

415

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

  1. Conclusions: the police and the CPS

2006 to 2007

The police 12.1 I am entirely satisfied that the officers who worked on Operation Caryatid approached their

task with complete integrity and that each of the decisions taken during the investigation and prosecution was appropriate, justified and in keeping with the operational imperatives of the police at that time. I have no doubt that neither Peter Clarke nor any of the other officers were or would have been affected by any relationships between some senior officers and NI personnel. There is no evidence that the relevant officers approached the task from the standpoint of seeking to deal with any alleged wrongdoers other than properly and so as to bring the force of the law to bear.

12.2 Furthermore, I find no evidence of compromise to the independence of the police officers

engaged on Operation Caryatid who were prepared to follow evidence as far as it went but were equally mindful of other operational imperatives. Given how little was known about E 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 achieved such extensive evidence that Clive Goodman and Glenn Mulcaire were driven to admit their guilt. Important convictions followed, this criminality was brought to the attention of the public and mobile phone companies were prompted to improve their security systems.

12.3 There is equally no doubt that the decision made in or around late September 2006 by Peter

Clarke not to expand the investigation was wholly justified given the threat from terrorism and the enormous counter terrorism operations then in play (to say nothing of other serious crime the investigation of which would be under-staffed because of the demands of such investigations). In my judgment, there is simply no scope for concluding that the decision was in any way influenced by pressure from, fear of, or any personal relationships with, employees of NI or the NoTW.

12.4 That is, however, only the start of the matter. Having decided, albeit for irreproachable

reasons, not to investigate journalists other than Clive Goodman, it was imperative that the reasons for the decision were fully and accurately recorded and, furthermore, that the police devise, institute and execute a suitable strategy to deal with the many unresolved issues surrounding the investigation. It is unnecessary to say more about the former (although it might have assisted years later when the Operation came to be revisited). As to the latter, the police rightly identified that potential victims of voicemail interception needed to be informed and it was intended to devise a proportionate and cost-effective strategy. Unfortunately, at almost every turn, the strategy devised was not fit for purpose; neither did it succeed.

12.5 First, the strategy was insufficiently thought out. Its formulation did not even encompass

everyone identified in the blue book. It was intended that those whose voicemail boxes had been rung by the "suspect numbers" would be informed. The strategy therefore overlooked those identified in the blue book whose voicemail boxes may have been infiltrated by a journalist other than Mr Goodman. It also overlooked those whose voicemail boxes had been

416

accessed by the suspect numbers but at such an early date that the phone companies no longer retained the relevant records.

12.6 Second, the police did not make the phone companies aware (sufficiently or, probably at all) of

the role that it was intended for them to play; neither did the police obtain their agreement to undertake such a role. It was simply 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. Further, despite proceeding on this assumption, no steps at all appear to have been taken to check that the phone companies had carried out the task as anticipated. Although the investigating officers knew that there was an enormous body of material seized from Glenn Mulcaire which pointed towards large scale collection of information about mobile phones, PINs and other personal details, no sufficient thought was given to what impact that material had on the issue of warning victims or potential victims.

12.7 It is entirely understandable that, as more and more has emerged, concern has been

increasingly expressed that the MPS was protecting the NoTW for it was the reputation of that paper that benefited from the targeted focus of the investigation and the fact that only a small number of potential victims were notified of the facts. In the same way that I have no doubt that the decision to limit the scope of the investigation was not linked to

E any relationship with NI, I am similarly sure that the failure either to devise or to execute an

appropriate strategy was not influenced in any way by, or connected to, any inappropriate relationship between the MPS and NI.

12.8 Third, the exit strategy ought also to have given some thought to advising senior management

at the NoTW and NI, about their position and the reasons for the curtailment of the investigation not least so that management could consider whether (and if so, what) steps should be taken to improve corporate governance in this area. In truth, in the light of the stance taken by the NoTW over a period of years, it is likely that nothing would have been done and police concern would have been dismissed. When NI and the NoTW declared that there was just "one rogue reporter", however, consideration should have been given to the extent to which silence on the part of the MPS provided implicit support for the claim. At this distance of time and with so much more now known, it is difficult to know what could or should have been done. As it was, the issue was not even considered.

The response of NI to the prosecution and allegations of widespread criminality within the News of the World

12.9 NI failed to carry out a proper internal investigation into what had emerged from the

prosecution or into the allegations made by Mr Goodman when appealing against his dismissal. Apart from a review of emails sent or received by the individuals named by Mr Goodman, the investigation was limited to Mr Cloke and Mr Myler asking the individuals concerned whether there was any substance to the allegations and accepting at face value their denials. There was no detailed analysis of precisely what Mr Mulcaire had done to justify the enormous sums that he had been paid and no sign that the NoTW was concerned with anything other than further damage to its reputation or that it regarded the fact that criminal conduct may have flourished as a significant risk either from a corporate governance or operational perspective.

12.10 Despite the inadequacy of the internal enquiries that were conducted and despite the belief

held by Mr Crone that it was inaccurate to assert the "one rogue reporter" defence, NI maintained publicly that Mr Goodman acted alone. The episode was viewed as an aberration,

417

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

involving one journalist and it was maintained that a "full, rigorous internal inquiry" was being carried out. Rather than face and tackle the problem, the title followed its wish simply to "draw a line" under it the entire affair and hope that it all went away.

12.11 Even when Mr Silverleaf QC advised that there was powerful evidence of a culture of

illegal information access used to produce stories for publication, there was no internal investigation. Rupert and James Murdoch claimed that there had been a cover up to which senior management had been victim. If that was right, then the accountability and governance systems at NI would have to be considered to have broken down in an extremely serious respect. Both Mr Myler and Mr Crone strongly denied that there had been a cover up. Whatever the truth, there was serious failure of governance within the NoTW. Given the criminal investigation and what are now the impending prosecutions, it is simply not possible to go further at this stage. In any event, what can be said is that there was a failure on the part of the management at the NoTW to 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 (whether or not it was in fact asked) "what the hell was going on?" This is a significant finding in the context of the practices of this newspaper at least; whether it can now be said by the press generally that it was a case of 'one rogue newspaper' is another matter. E 2009 to 2011

News International 12.12 NI, through Colin Myler, reacted to the Guardian article by going on the attack, labelling the

allegations in a letter to the PCC to be unsubstantiated, irresponsible and wholly false. Before the PCC and the CMS Committee, NI maintained the stance that there was no evidence that any member of staff at the NoTW had been involved in voicemail interception other than Mr Goodman. The determination of NI to maintain a line that, at the very least, the legal director believed was not true (and in which, at the very least, the editor, Mr Myler could not be said to have had confidence) in the face of two investigations by the CMS Committee and two investigations by the PCC is extraordinary and, at the very least, a demonstration of loyalty to the NoTW and its reputation which says a great deal about the culture of the paper (to say nothing of its practices and its approach to ethical propriety). In fact, the NoTW maintained the "one rogue reporter" defence until the Spring of 2011 when three NoTW journalists were arrested as part of Operation Weeting.

Police 12.13 Between July 2009 and January 2011, the failure to reopen Operation Caryatid (or at the very

least to conduct a proper scoping exercise to decide whether it should be reopened) can be reduced into five overlapping errors. These are:

(a) In reality, Mr Yates failed adequately to address any question other than whether there was anything in the newspaper reports that constituted "new evidence". This was notwithstanding the fact that a vast amount of documentation available from the August 2006 seizures had not been fully analysed by the MPS itself; very little of it had been considered (let alone reviewed) by the CPS, save only for the very limited exercise of disclosure of unused material. (b) There was a failure correctly to assimilate the admittedly nuanced advice given by counsel in August 2006 as to the likely interpretation of s1 of RIPA, and, probably

418

because of a misunderstanding, it was later misrepresented. (c) There was a mischaracterisation of the evidence which had been provisionally reviewed in August/September 2006 as amounting to "no evidence" either of other criminal offences or as implicating other potential defendants or, alternatively, if it was thought that there was evidence but only insufficient to prosecute, to consider whether, in the light of the Guardian's article, that approach continued to be correct. (d) There was a failure to appreciate that the determinative reason for closing the investigation down in September 2006 was not the quality of the evidence but an operational assessment of competing demands on the resources of SO13 and the impact of counter terrorism generally and the limited comparative value in further pursuing the matter compared to the input that would have been required. (e) No assessment was made of the impact of the revelations emanating from the Guardian and the New York Times other than in a defensive frame of mind that the decisions taken in 2006 had to be correct (not least because Peter Clarke had made them).

12.14 I am not in doubt that the reaction of the MPS to the Guardian article published on 8 and

9 July 2009 was wholly inadequate. For Mr Yates to treat this well-researched piece as 'just another newspaper article' is wholly at odds with the immediate reaction of others; outside

E the police service, they included the Home Secretary, Parliament, the DPP and, incidentally,

the PCC. Whereas I do not believe that Mr Yates was, in fact, influenced in his decision-making by his friendship with Mr Wallis, given the reference to "suppressed evidence", the fact that the MPS had not alerted all those whose phones were targeted and the fact that a targeted (albeit comparatively limited) prosecution had been pursued, it was a serious misjudgement to accept responsibility for making a decision affecting the NoTW (particularly one in favour of doing nothing) knowing he was a personal friend of the deputy editor. It did not need to be him who considered the allegations: it could have been any senior officer.

12.15 To make matters worse, Mr Yates dismissed the allegations made by the Guardian in a matter

of hours. He did not give DCS Williams any real opportunity to refresh his memory as to the nuances of what had been a comparatively complex investigation which had concluded just short of three years beforehand. Neither did he wait for the documents to be retrieved from storage. Further, he did not engage with the substance of the allegations or scrutinise the information he was given. At the very least, he accepted at face value that there had been "no evidence" that journalists other than Mr Goodman had been involved in the criminality and that what leads there might have been were no longer viable. This approach is explained entirely by the inappropriately dismissive, defensive and closed-minded attitude he adopted from the outset.

12.16 Then, having reached his dogmatic conclusion on 9 July 2009, he closed his mind to the

question of whether there might be material in police possession that could justify reopening the investigation and clung over-tenaciously to the shibboleth "no new evidence". Operation Varec in 2010, (following the article in the New York Times) took the same path. The only steps taken were aimed at obtaining "new evidence", including seeking interviews with those to whom the article referred, requesting material from the New York Times and other titles and information from NoTW reporters: there was no question even of scoping the exercise of looking at the material that had been in the possession of the police for four years. Even as late as January 2011, Mr Yates was warning the DPP of the risk of presentational embarrassment to both the MPS and the CPS if matters were re-opened. Unfairly and tendentiously he was placing both organisations in the same boat, when plainly they were occupying different vessels. Even to this day, Mr Yates maintains that it was the provision of new information by NI in January 2011 which warranted the reopening of the investigation and nothing before.

419

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

12.17 The judgment of DCS Williams was also clouded by his defensiveness. He did not see beyond

the need to rebut the suggestion of a police cover-up. Rather than conducting a thorough review of his decision-making, DCS Williams simply adopted the position that there was "no evidence" to implicate any other journalists without making clear that although there had not been sufficient evidence to charge any other journalists, there was circumstantial evidence that had generated further lines of enquiry and therefore that the Guardian was right to the extent that there was material in police possession that could have been acted upon. There was simply no reason for not, at any time, providing the explanation that this additional work was not undertaken because of an operational decision essentially consequent upon intense counter terrorism duties.

12.18 Having said that, I must make it clear that I accept entirely that DCS Williams was acting

entirely in good faith; he did not hide evidence or intend to mislead Mr Yates. At its highest, he mischaracterised what was available and mis-recollected or misunderstood the effect of the legal advice which had been received. Furthermore, although he secured the documents from storage and reviewed the position over the following days, after the press announcement which Mr Yates made on the day of the Guardian report, in reality, a defensive mindset had been engaged and there was no prospect of that decision being revisited.

12.19 I must also make clear that I find no evidence to suggest that DCS Williams was influenced in E

any way by the fact that the object of this investigation had been the NoTW. As he had done in 2006, if required, he would have been fully prepared to pursue any investigation as far as it could be taken. Neither is there any question of his seeking to curry favour with the press or of him having regard to what might have been considered the overly close social relationships of some senior officers with senior members of the press. Having acquitted Mr Yates of being affected by the relationship, there is nothing even to base an allegation of that nature against DCS Williams: I do not impugn the integrity of DCS Williams in any way.

12.20 There is no doubt that the manner in which the MPS remained implacable in the face of

increasingly strident allegations in the press and demonstrated an unwillingness to revisit the investigation fuelled a legitimate concern that influence was at work. It is not surprising that in the years that have followed there should have developed a belief that relationships between NI and senior figures within the MPS had become so inappropriately close that the integrity of decision-making by the MPS could not be trusted. Public concern would have been reinforced by the ill-judged article written by Mr Hayman and published in the Times on 11 July 2009. He gave the impression, no doubt inadvertently but undeniably, that he was being deployed by NI to give support to the police line which, itself, was in support of NI. It was also not surprising that the claim for judicial review should follow.

The CPS 12.21 The conduct of the CPS and counsel in relation to the prosecution of Clive Goodman and

Glenn Mulcaire cannot be criticised. In the light of the material provided by the police, they advised on an entirely appropriate strategy of targeted prosecution which was pursued effectively to conviction. Analysis of unused material for the purposes of disclosure in that case did not involve any assessment of whether others at the NoTW should be investigated or prosecuted and there is no suggestion that they were asked to review the Mulcaire material to advise on whether further investigations should be pursued. That, as I have made clear, was an operational decision for the police.

12.22 Between July 2009 and January 2011, the DPP approached successive revelations in the media with an ever open mind and ever-increasing frustration. Quite properly, he took the

420

Guardian article of July 2009 seriously and commissioned appropriate internal enquiries. Given the allegation that the CPS had not pursued all possible charges those enquiries naturally focused on the material with which the CPS had been provided and the decisions that prosecutors had been required to make. Going further, however, the CPS in general and the DPP in particular were hampered by the fact that all relevant key personnel had since left the CPS. The inevitable diminution of memories by the lapse of time, not surprisingly made them reliant on briefing notes from the MPS and the review was not assisted by the failure to examine witness statements and exhibits from the prosecution. It was, however, correct to conclude that the original prosecution had been conducted properly.

12.23 It was difficult for the DPP to go behind the note prepared by counsel that they were told

that there was no evidence connecting Glenn Mulcaire to other journalists but the press release ("I am not in a position to say whether the police had any information on any other victims or suspects that was not passed to the CPS") was entirely fair. He reacted to the "for Neville" email swiftly and, in the circumstances, reviewing the matter on 20/21 July 2009, it is not surprising that Mr Starmer needed urgent advice from Mr Perry. In that regard, it is unfortunate that Mr Perry did not request further time in order to re-acquaint himself with the relevant facts and law before advising, and that the resultant product did not accurately reflect the advice he had given in August 2006. In reality, however, this made little or no

E difference to the subsequent course of events.

12.24 The further allegations in the New York Times caused the DPP to re-evaluate the legal advice:

he was then put on the right track. Given what the police placed before the CPS in relation to Operation Varec, the decision as to prosecution was inevitable. In January 2011, following the revelations arising from the civil claim brought by Sienna Miller, Mr Starmer reached the point where nothing less than a full review would reassure him that all relevant evidence had been acted on appropriately: that, again, was entirely the correct approach.

12.25 I conclude by endorsing the position as articulated by Mr Godwin during his evidence:646

"… the police are in a unique position because they're an institution that can be called upon to investigate any other part of the establishment machinery, if you like, at any time, so in a sense they have to stand slightly apart, and that psychological distance between other institutions and the police. "That doesn't mean to say you can't have completely cordial relations and high quality engagement with other professions or institutions, but at the same time I think the police are that organisation who can sometimes be called upon to investigate, and therefore the need for transparency, the need for accountability, is very high, quite properly, and I wasn't entirely convinced some of those risks were identified …"

421

Chapter 5 a New approaCh to the allegatioNs