Reports that Matter

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

The genesis of Operation Motorman

Section 7 of 140

The genesis of Operation Motorman

2.1 On 11 November 2002, during the course of the search of the premises of Data Research

Ltd, as part of Operation Reproof, Mr Owens observed documents containing lists of Vehicle Registration Marks (VRMs) that appeared to have been checked for vehicle owners' personal details.2 The documents recorded the owners' details alongside the VRMs and also contained times and dates when the searches had been carried out. Mr Owens contacted the Driver and Vehicle Licensing Agency (DVLA) with a number of the listed VRMs and the DVLA confirmed that all the numbers has been searched through the DVLA records by the same employee. Mr Owens also confirmed that the times and dates recorded on the seized documents corresponded with the times and dates when the DVLA records had been checked.3 In the light of these facts, Mr Owens formed the view that a source within DVLA had been supplying information on request to the detective agency.4 Further examination of the documents seized revealed that several hundreds of VRMs had been checked by the detective agency, and the results sold on to a number of companies and individuals.5

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2.2 These discoveries led to two investigations. The ICO commenced Operation Motorman

to investigate data protection offences and, in particular, to identify the customers of the agency who had commissioned the supply of information and the reasons why personal information of this nature had been sought.6 Thereafter, the Metropolitan Police Service (MPS) commenced Operation Glade to identify potential corruption by police officers or civilian police employees.7

2.3 On closer examination of the documents seized from the premises of Data Research, Mr Owens

observed that one of the VRM checks had been made against a "protected number". Having previously served as a Special Branch police officer, Mr Owens appreciated that a protected number was likely to signify a vehicle owned by a sensitive individual or an undercover police vehicle. This was confirmed by the MPS and Mr Owens identified Mr Whittamore and his company, JJ Services, as having sought the information in relation to this vehicle. As a result of this, Mr Owens explained, "Stephen Whittamore immediately went to number 1 on [his] investigation list to be visited and interviewed."8 The ICO identified Mr Whittamore as a private detective running a business from his home address and, as has been explained above, on Saturday 8 March 2003, five ICO investigators searched Mr Whittamore's premises pursuant to a search warrant issued under Schedule 9 of the DPA.9

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  1. The search

3.1 A significant volume of documentation was seized during the search of Mr Whittamore's

premises. This included reports, workbooks, ledgers, invoices and in particular four hardback coloured notebooks which have become known as the "Blue book", "Red book, "Green book" and "Yellow book". These notebooks represented all the work that Mr Whittamore had done, and set out precise dealings between Mr Whittamore and his customers, including a number of journalists. The workbooks documented who had requested the personal information (both in terms of the newspaper concerned and the commissioning journalist), what information had been requested and supplied, how much had been charged for obtaining the information and how much was paid to associates who assisted in the supply of the information.10 Invoices and remittance advices demonstrated the payments made by newspaper groups and how much money had been paid for each transaction.11 As Mr Owens explained in his evidence, he was able to demonstrate a paper trail from identified journalists working for named newspaper groups, requesting information be obtained, through to the subsequent activities of the private investigators using sources or blaggers to obtain the information.12

3.2 Mr Owens, assisted by ICO Investigator Roy Pollitt, created a photo image of each of the

documents and pages of the notebooks, and sent the documents to a forensic computer specialist to input the information into an electronic database, thus converting the contents of Mr Whittamore's notebooks, invoices, remittance advices into an electronic format. On 30

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November 2011 Mr Owens made a copy of the electronic database available to the Inquiry. Its broad accuracy was confirmed when the ICO produced Mr Whittamore's hardback coloured notebooks.

3.3 The highly confidential nature of the information contained within the database, and the need

to protect the privacy of the subjects of the information requested, requires the confidentiality of the details of the database to be preserved and the subjects of the requests to remain anonymous. Similarly, the journalists who are identified by name in the database, but have not been interviewed or prosecuted by the ICO, have not been named during the course of the Inquiry. I heard submissions in private as to how to use this material and decided to make the database available to the Core Participants of the Inquiry, subject to confidentiality undertakings and on strict conditions. The purpose of making the material available was to permit Core Participants to evaluate their position in relation to this evidence. In due course it was conceded by all Core Participants that I could proceed on the basis that no positive case was to be mounted by them that the Motorman material did not reveal prima facie evidence of breaches by journalists of the DPA, and I have done so.13 It has not been suggested by any Core Participant that, if necessary, I cannot go further and reach my own conclusions based on the Motorman evidence as to the culture, practices and ethics of the press.

3.4 During Mr Owens' evidence, I observed that the records kept by Mr Whittamore, as illustrated E

in the database, contained, by reference to each request, the name of the newspaper group, the newspaper within that group, the journalist's first and last names, the service requested, the name of the person retrieving the information (for example the blagger), the subject about whom the information was requested, the result of the search and various accompanying comments.14 These aspects of the evidence are now considered in some detail.

Volume of requests made to Mr Whittamore 3.5 Mr Owens expressed the view that the notebooks contained in the region of 17,000 entries,

or requests for information from the press.15 These requests principally related to activities in the period between the end of 2000 and 8 March 2003 when the material was seized by the ICO; however the earliest entry was around 1997.16 Richard Thomas, the Information Commissioner at the time, gave evidence that the total number of requests was 13,343.17 This discrepancy is explained by their different approaches to multiple requests, and need not be resolved for present purposes. On any view, the figure involved is substantial, and demonstrates that Mr Whittamore was not simply engaged in obtaining the occasional ex- directory number, or in locating addresses on an infrequent basis, or in supplying personal information relating to simply a handful of individuals. Rather, he was engaged in a trade of

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personal information relating to hundreds of individual subjects, on an almost daily basis. The demand for this information from the press was constant.

Buyers/customers of information

3.6 It is important to acknowledge that the buyers or customers of the information were not, by

any means, exclusively journalists. They included the media, insurance companies, lenders and creditors, parties involved in family disputes, criminals with what are likely to have been criminal or malicious intentions, including witness and juror intimidation, and estranged couples seeking details of their partner's whereabouts.18 However, the number of journalists requesting personal information from Mr Whittamore (for whatever reason, whether justifiable or not) indicates that it was not an isolated incident, or a handful of individuals engaging in the practice. The Parliamentary Report, What Price Privacy Now?, identified 333 journalists as having been named in the Motorman documents, as set out in the table below. Mr Thomas' witness statement identifies some 305 journalists as having been named in the Motorman material, and whilst, again, I note the discrepancy between the figures, nothing turns on this difference.19

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Suppliers of information

3.7 The documents seized disclosed that the information was either obtained directly by Mr

Whittamore, or through associates who would be paid to obtain the information through either blagging or paying a source. Mr Whittamore would commonly outsource work to associates in return for a payment, and add a premium to the value of the information sold to the end buyer.20 One example of a method used to obtain information is illustrated by BT ex-directory numbers. One of Mr Whittamore's associates, Mr Jones, would ring BT or other phone companies, purporting to be an engineer; he would use a form of password which is given to BT employees (known as an EIN number) in order to identify himself as an engineer. Once he had obtained the information sought, he would telephone Mr Whittamore and pass on the relevant information. This modus operandi was elicited by Mr Owens from the relevant paperwork and by interviewing Mr Jones.21

Subjects of requests for information

3.8 Turning to the journalists, the information sought related, in part, to a number of well-known

celebrities and other figures in the public-eye, but equally included individuals who were only remotely connected with public figures, and some who had no obvious newsworthiness at all; one, for example was a self-employed painter and decorator who had once worked for a lottery winner.22 In his evidence to the Inquiry Mr Owens confirmed that he had seen a reference to the Dowler family in the Operation Motorman material alongside a request for

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an ex-directory telephone number.23 It also emerged in evidence that Mr Hugh Grant was amongst the celebrities whose personal information was sought by journalists.

Nature of information 3.9 The material seized evidenced the supply of a wide range of information including criminal

record checks against the PNC, occupancy checks, voter searches, directors searches, VRM checks and vehicle owner details, ex-directory phone numbers, itemised telephone billing and mobile phone records, details of frequently dialled ("friends and family") numbers, conversion of mobile telephone numbers into addresses and vice versa.24 I emphasise immediately that at least some of this information could have been obtained lawfully, but that is not the case for all the types of information sought.

3.10 By way of example of the type of information requested, in the course of Mr Owens' evidence

the Inquiry heard that one entry related to a request for specific calls from a telephone number between 16:00hrs and 17:00hrs on a given date. The price for obtaining this type of information was £300-£400. Mr Owens expressed the view that this information would be available on the subscriber's telephone bill and this would only be available from the phone company.25 Another entry related to a request for a "Phone bill for June 2011" for the price E of £800.26

3.11 These examples demonstrate that whilst some requests were more general, such as seeking to identify where an individual lived, other requests were highly specific in their terms.

Methods of obtaining information 3.12 Within the types of information requested, varying methods were used to obtain the data.

Thus, by its very nature, it appears clear that some types of information could only have been acquired from one possible source, for example the DVLA (VRM checks against owner details), the PNC (criminal record checks), or telephone companies (friends and family numbers). As Mr Owens explained in relation to friends and family numbers, "there's no way you can get somebody's list of family and friends lawfully, unless you actually know them and what's on the list. The only way you'll get them is from BT or whichever phone company".27 He further explained that criminal records checks could also not be obtained lawfully.28 Mr Thomas in his evidence also confirmed that the PNC, and the list of friends and family numbers, cannot be obtained from information in the public domain.29

3.13 Similarly, in relation to obtaining the vehicle owner's details from the DVLA, this information

could only be obtained lawfully in a number of specifically defined circumstances set out by law. The DVLA has two separate databases holding information: the vehicle register and the driver register. The DVLA's vehicle register holds information about each motor vehicle

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(e.g. registration mark, vehicle identification number, make/model, emissions, etc) and includes the name and address of the registered keeper, dates of acquisition and disposal, and the vehicle's tax status. The driver register holds each driver's name, address, date of birth, photograph, endorsements, convictions and relevant medical information that may affect a person's ability to drive. The particulars from the register may be made available in a number of particular circumstances, for example to a police officer, or to a local authority to investigate an offence.30 It may also be made available to a person who has "reasonable cause" for seeking particulars, for example following involvement in an accident, enforcement of road traffic legislation or tax collection. It appears very unlikely that requests made to the DVLA for owners' addresses to be supplied to journalists would fall within this category.

3.14 Putting it at its lowest, in respect of these types of information, namely VRMs checks against

owner details, criminal record checks, or friends and family telephone numbers, I consider that the methods used to obtain this information by Mr Whittamore are highly likely to have been unlawful.

3.15 It is right to observe that, in principle, other forms of information, for example addresses, or

ex-directory numbers, may be obtained through lawful means. For example, one can conceive of a laborious check of the full electoral register to identify an address. Similarly, searching

E through former telephone directories to locate a number that may have been notified before

it became ex-directory may be possible. However, as was explained in What Price Privacy?, in many instances the sums charged for such information, for example the obtaining of a personal address, appeared to be too low to suggest that extensive hours of research had been undertaken to obtain this information. Mr Thomas expressed the view that it was highly likely that ex-directory numbers were obtained illegally.31

3.16 News International drew Mr Thomas' attention to the fact that there exist substantial

databases of telephone numbers which may well have been obtained lawfully: one of the largest holds in the region of 50 million numbers, of which approximately 10 million may be inferred to be ex-directory.32 However, it does not seem likely that Mr Whittamore had access to such a database between 1997 and 2003, and the way in which he recorded the information that he obtained does not suggest great computer literacy on his part. Further, it is difficult to see why newspapers (which, presumably, could access certain databases themselves) would have paid so highly for his services had such databases been his source.

3.17 Taking all this evidence into account, and applying basic common sense to it, the fairly obvious

conclusion is that Mr Whittamore was obtaining the ex-directory numbers by unlawful means. The position is less clear cut in relation to the obtaining of addresses.

Public interest

3.18 In his evidence Mr Thomas acknowledged that there could, at least in theory, be cases where

the public interest fully justified obtaining personal data (with the result that no offence would be committed); and he also recognised that there could be questions concerning proof of intention or recklessness. In relation to the public interest, he gave the example of seeking the weekend telephone number of a minister who had recently resigned in order to

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contact him with a proposed story; however, when he was pressed by Mr Rhodri Davies QC for News International, he said: "But I have to say yet again, that was not typical, nothing like typical of the cases that we were seeing. And although you made the point that the majority of the cases were, in your language, only addresses or phone numbers, I would also say the vast majority were nothing to do with public interest considerations along the lines I've just mentioned."33 Ashworth Hospital Authority v MGN Ltd [2002] 4 All ER 193, 210. p7, lines 6-9, Dr Neil Manson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Afternoon-Hearing-16-July-2012.pdf ibid, p103 pp53-54, lines 23-23, Mark Thompson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- of-Morning-Hearing-23-January-2012.pdf pp16-18, paras 43-47, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/DCMS-submission_ Narrative-on-media-ownership.pdf ibid, pp(i-ii) pp62-63, lines 23-25, Baroness Buscombe, ibid p107, lines 3-9, Richard Thomas, ibid p15, lines 8-15, Philip Williams, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-29-February-2012.pdf; Review of Case dated 4 April 2006 (not published) http://online.wsj.com/article/BT-CO-20120618-711154.html http://www.guardian.co.uk/politics/2008/may/07/houseofcommons p2, para 9, ibid pp76-77, lines 25- 6, Ian Edmondson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Transcript-of- Morning-Hearing-9-February-2012.pdf pp20-21, lines 25-2, Peter Hill, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript-of- Afternoon-Hearing-12-January-2012.pdf pp10-12, lines 7-1, Steve Coogan, ibid p11, para 35, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/02/Witness-Statement-of-Paul-Dacre. pdf; p3, para 7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement-of-James- Harding.pdf; p9, para 7.1, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness-Statement- of-Thomas-Mockridge.pdf p5, para 21, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Witness- Statement-of-Dominic-Mohan.pdf; p5, paras 34-35, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/ Witness-Statement-of-Colin-Myler1.pdf; pp48-49, lines 21-8, http://www.levesoninquiry.org.uk/wp-content/ uploads/2012/01/Transcript-of-Morning-Hearing-16-January-2012.pdf; p3, para 6, http://www.levesoninquiry.org.uk/ wp-content/uploads/2012/01/Witness-Statement-of-Dawn-Neesom.pdf; p9, para 42, http://www.levesoninquiry.org. uk/wp-content/uploads/2011/12/Witness-Statement-of-Piers-Morgan.pdf; p7, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Witness-Statement-of-Assistant-Chief- Constable-Jerry-Kirkby.pdf p8, lines 11-17, Sir Paul Stephenson, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Morning-Hearing-5-March-2012.pdf pp9-10, para 25, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Witness-Statement-of-Ed-Stearns.pdf pp63-64, lines 25-19, Theresa May, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of- Morning-Hearing-29-May-2012.pdf p45, lines 8-11, Richard Thomas, ibid pp43-44, lines 15-2, Alexander Owens, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript- of-Afternoon-Hearing-30-November-2011.pdf pp11-12, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Philip-Coppel-QC- redacted.pdf pp8-9, ibid p4, lines 13-20, Sir John Major, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Transcript-of- Morning-Hearing-12-June-2012.pdf p60, line 16, Rupert Murdoch, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/04/Transcript-of- Morning-Hearing-25-April-2012.pdf p5, para 7.2, George Osborne, ibid p27, Sir Harold Evans, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Transcript-of-Afternoon- Hearing-17-May-2012.pdf p13, paras 51-52, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince- Cable-MP.pdf p55, lines 20-22, ibid http://www.cabinetoffice.gov.uk/sites/default/files/resources/ministerial-code-may-2010.pdf p21, para 77, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Witness-Statement-of-Vince-Cable- MP.pdf Reference is made to Article 8 of the ECHR Adenjii v London Borough of Newham [Case 01TLQ 823], October 2001. This was an approved settlement (Garland J) in the High Court p4, lines 4-16, Sir Christopher Meyer, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/01/Transcript- J of-Morning-Hearing-31-January-2012.pdf; p35, lines 5-24, Baroness Buscombe, http://www.levesoninquiry.org.uk/wp- content/uploads/2012/02/Transcript-of-Morning-Hearing-7-February-2012.pdf pp70-71, lines 23-3, Lord Black, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-9-July-2012.pdf p23, para 38, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Submission-by-Lord-Black-of- Brentwood1.pdf p3, para 3.1.8, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Lord-Black-of-Brentwood-Annex-B1. pdf p13, lines 9-15, Lord Black p13/9-15, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/07/Transcript-of- Morning-Hearing-9-July-2012.pdf pp75-76, lines 25-7, Professor John Horgan, ibid para 180, ibid K Part K, Chapter 7, para 6.41 1807 L Application 69698/01, Stoll v Switzerland (2008) 47 EHRR 59 Mr Thomas expressed the opinion that the evidence obtained as part of Operation Motorman did not come near to being characterised as being in the public interest. He explained, "I haven't seen a whiff of public interest. It was tittle-tattle. It was fishing. There may be one or two examples, but they would be exceptional".34 I can add that no example of a search for the weekend telephone number of a recently resigned minister has been shown to me.

3.19 Given that no journalists were ever interviewed by the ICO in relation to Operation Motorman,

the strength of any public interest defence is difficult to assess definitively and I do not propose to do so. However, it was suggested to the Inquiry by at least one press Core Participant that the newspaper required access to this data in order to be able to contact the subject of a story for his or her version of events; in other words, to facilitate the exercise of a right to reply. Expressed in these terms, a public interest defence has superficial attraction, but upon closer analysis its strength dissipates. In each case consideration needs to be given to the subject matter of the story which is proposed to be published. If the story has a potential E freestanding public interest, then it is indeed arguable that, subject to a range of other factors, the journalist might need to contact the subject of the story for his or her account. But if, as Mr Thomas has suggested, there is not a whiff of public interest in the underlying story, it is not arguable that a public interest can be manufactured for the purposes of the defence under s55 of the DPA on the grounds that the subject needs to be contacted.

3.20 In any event, regard must be paid to the nature of the information commonly being sought by

journalists. Even assuming a journalist needed to contact the subject of a story, it is difficult to imagine why he or she should need to know the telephone details of the family and friends of the target. Even more difficult is to see the public interest in deceptively obtaining a criminal record check. In those circumstances, it is unlikely that a public interest defence under s55 of the DPA would have succeeded. Indeed, in only a small minority of the cases is it likely to have been even arguable.

Mental element 3.21 The case against a journalist instructing Mr Whittamore to obtain the relevant information is

slightly different because, in order to establish guilt under s55, the prosecution would have to prove to the criminal standard that the journalist in question either knowingly or recklessly obtained or disclosed personal data or the information contained in personal data, s55(1)(a), or procured the disclosure to another person of the information contained in personal data, s55(1)(b). Again, the fact that no journalist was ever interviewed by the ICO renders difficult an assessment of whether this mental element could have been proved.

3.22 It is, of course, possible to draw certain inferences from the available material. That material

includes, in particular, the type of data sought and obtained, the speed with which it was obtained, the amount of money paid for the information in question, and the sheer quantity of requests. There is certainly enough here to indicate prima facie (if not at a higher level) that many journalists either knew precisely how the information was being obtained or turned a

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Nelsonian eye to the obvious, or the close to obvious (with the result that there were, at least, reasonable prospects of proving recklessness). In that regard, I do no more than accept the concession that the press Core Participants made to that effect. It is not possible to go further than that, and (notwithstanding that the names of the journalists have not entered the public domain) it would be unfair to do so.