Wednesday, 18 April 2012

The Logic Behind Today's CPS Referrals? UPDATED

I was sent a very interesting email today by a reader regarding today referral of the hacking files to the CPS

I *think* I may see the logic of today's CPS announcements re Op Sasha etc.

If identity guesses re Brooks, Amelia Hill, Patrick Foster etc are correct then these are the most recent offences so require less 'historical' digging around for evidence.

However also, todays CPS announcements also involve a very wide BREADTH of offences committed.

I *think* they are testing the waters, in terms of range of OFFENCES, in order to guage how courts might regard evidence. Having established these as precedents, it's then Game On for the main course of Weeting, Elvedon & Tuleta.

Today's cases seem (to me) to be pointing to specific testing of specific bits of legislation. I've cross-referred with CPS publication (also today!) of guidelines for prosecuting journalists. Specific offences are Annex 'A' here, p13 onwards

File 1 (Amelia Hill & unnamed cop, Weeting leak, Op Kilo) tests Misconduct in Public Office offence

File 2 (Brooks etc, Op Sacha) tests Perverting the Course of Justice offence

File 3 (Thurlbeck) tests Intimidating a Witness offence

File 4 ( Patrick Foster re Nightjack) tests Regulation, of Investigatory Powers (RIPA), Section 1 (2)

Choosing RIPA rather than Computer Misuse Act is highly significant. The 'wide' or 'narrow' interpretation of RIPA caused much of the problems over original Op Glade prosecutions of Goodman & Mulcaire - and Yates' one day review of same. I think it's highly likely then that police passing the CPS files today is a way of saying to Director of Public Prosecutions, and courts, to bloody well sort out RIPA interpretations and give CLEAR precedent!

Also, any RIPA prosecution REQUIRES DIrector of Public Prosecutions consent to proceed, Computer Misuse Act doesn't require DPP consent.

Overall, looks to me that police have asked for CPS decisions on these particular cases in order to establish some clarity on wide range of untested legislation, public interest defence criteria and so on. It's about establishing thresholds of evidence needed, quality of setting precedents for sentences etc etc

Indeed DPP Starmer almost confirms this in an interview today.

So, if these prosecutions collapse, so do Weeting, Elvedon, Tuleta....

High stakes for Starmer!

It should be pointed out the names linked to the different files are just theories at the moment, but there's some very good points made, but it does seem like it's something that would make sense under the current circumstances. Hopefully it won't be too long before we know which names are linked to which file.

UPDATE
I received another email about the same subject raising some other points that's worth a read:
I don't quite see how that all works as to needing to test the limits of the offences, or how that works in relationship to other cases.

Lets work through them backwards.

File 4 ( Patrick Foster re Nightjack) tests Regulation, of Investigatory Powers (RIPA), Section 1 (2)

I see how this would link to RIPA, but the hacking in that case appears unlike the rest of the hacking, as far as we know, so I don't know that testing that would teach the police anything that would help in deciding what and where to go next with their decision making process

File 3 (Thurlbeck) tests Intimidating a Witness offence

As far as we know, this is the only witness intimidation case that is running as part of this chain of investigation, so where is this going to take us? do we really need to check the perimeters of the laws application here? or are we suggesting the police should be prepared because they think more journalists will start threatening witnesses down the line?

File 2 (Brooks etc, Op Sacha) tests Perverting the Course of Justice offence

Try as I might, I just don't quite see how the legality needs testing in this case. No one sane would think that they might need to prepare for a Journalists freedom of speech argument, or we're a special case argument in Perverting the Course of Justice. If there's evidence there it seems fairly straightforward to me.

File 1 (Amelia Hill & unnamed cop, Weeting leak, Op Kilo) tests Misconduct in Public Office offence
This one I think actually might be necessary to test the limits of the offence. we may well have whistleblower defences, and a genuine public interest defence being tried here.

If the names are correct, and we have the cases correct, then it's more a case of sweeping up around the edges and getting the disconnected cases out the way before the meat of the hacking charges are dealt with to my way of thinking.
You can contact the author on Twitter @brown_moses or by email at brownmoses@gmail.com

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