Hackgate - "Newsdesk Here, Kelvin Speaking..."

The latest from my regular contributor.

The phone goes. Someone is ringing to offer the news desk of the Sun a very big story indeed.

Let's imagine this time the call came in the summer of 2007 shortly after the Crown Prosecution Service (CPS) had decided the evidence collected by Surrey Police (true) was not strong enough to charge Jimmy Savile with the sexual abuse of four young girls.

The voice on the end of the line says he's a legal clerk/Crown Prosecution solicitor/police officer outraged at the decision of the CPS not to prosecute.

They make a stunning offer; I will hand over the CPS file so your journalists can study the evidence and make your own inquiries. But there's a catch - they insist "this is dangerous for me, so if you publish anything I want £1,000 in cash.

So writes Kelvin Mackenzie, former Editor of The Sun, in the Huffington Post this week:  'How Catching Jimmy Savile Would Have Meant Breaking the Law'.  It didn't take long for other ex-News International executives to rally in support

Kelvin Mackenzie on Sun arrests and the threat to Press freedom. Put aside any red top prejudice and have a long think. huffingtonpost.co.uk/kelvin-mackenz…
— Neville Thurlbeck (@nthurlbeck) November 8, 2012

Tabloid veteran Kelvin Mackenzie hits out atarrests of 21 Sun Reporters under little-known law no-one had heard of huffingtonpost.co.uk/kelvin-mackenz…
— Neil Wallis (@neilwallis1) November 8, 2012

Nice 'moral maze' scenario, Kelvin - one we should definitely think about - and look a tad more closely at your journalistic dealings with an imaginary Surrey policeman.

Mackenzie protests at how ridiculous it is to think your average newsdesk journalist might have been aware of the relevant laws governing their trade.  Sounding more like Harry Enfield's Kevin than Kelvin ("It's so unfaaaaair..."), he simply fails to see that perhaps a senior Editor could (nay, should) have ensured appropriate training.  And in Kelvin's World, it would be unrealistic to expect that highly motivated, Press Complaints Code-aware newshounds would have the skills in research, investigative techniques, or curiosity necessary to find out what legal constraints they should abide by.

Ah, but it's that word 'constraints' that peeves you so - isn't it Kelvin.

His ire is particularly, but not exclusively, aimed at the 1906 Prevention of Corruption Act.  And - even more outrageous - the 1906 act has no public interest defence!  Fortunately, that hypothetical Surrey policeman would be well aware of the Prevention of Corruption Act to save Kelvin and his newshounds from their blissful state of ignorance.

1906?!  So old, so obscure.  Who knew...?!

But that's why newspapers employ top flight lawyers.  If in doubt, journalists can double-check with these in-house legal specialists.  Why, they even have to undertake annual Continuing Professional Development (CPD) training so that they keep up to date.  Their essential role in advising and protecting against reckless journalism is exemplified by Times legal eagle Alistair Brett's evidence to the Leveson Inquiry

"Mr Foster wanted to know if he had already broken the law and if there was a public interest defence on which he could rely... "
"... I knew there was a public interest defence under section 55 of the DPA. I told Mr Foster that he might have a public interest defence under the section... by accessing someone’s computer as I did not think it was a RIPA (Regulation of Investigatory Powers Act) situation...."

"Q: Had you heard of the Computer Misuse Act?

A: I hadn't at that stage."

(later) ".... I realised that Mr Foster’s accessing of NightJack’s computer was far more serious than I initially thought as there was no public interest defence to Section 1 of the Computer Misuse Act."

There's a Computer Misuse Act?!  So recent, so new-fangled.  Who knew?!

Never mind, at least another News International title had some legal expertise on hand to keep it out of trouble.  Tom Crone's evidence to Leveson  (pp 36-39) showed how News of the World was on top of its game and well advised by him:

Q. The question you were posed related to the legality of paying public servants, including police constables, for information either in cash or in kind.... on such occasions, can you assist us, please, as to what your advice was?
A. Consistently that it would be a criminal offence to pay someone in public office for information which they shouldn't have been passing out.
Q. Was that advice ever put in writing?
A. Not that I'm aware of, no.

Well, that's clear then. And here's hoping that somebody at News Int is up to speed with the 1906 Prevention of Corruption Act provisions for CORPORATE level charges, the Bribery Act 2010 and even, say, the U.S. Foreign Corrupt Practices Act. (Telegraph)

It's not fair - there's just too much law to keep up with isn't there, Kelvin.

Who knows, there may even be laws which are supportive of others - whistleblowers or those pressured to become conduits for illegal payments. Or to prevent newspapers gaining future leverage over public officials compromised by accepting payment, or who have private indiscretions they don't want exposed.  I don't know - and clearly you are no legal expert either.

But, Kelvin, you say you know exactly what the newsdesk would have done when that hypothetical Surrey policeman phoned in asking for "a few bob":

The news editor/editor would have agreed to the bargain in a shot. And, with the newspaper bar set a good deal lower than the judicial one, reporters would have used that leaked information to go back to the victims, heard their harrowing story, weighed the evidence and, I am sure, decided to adopt the old adage; publish and be damned.

Oh, Kelvin, Kelvin, Kelvin - where do we start?

• Use illegally leaked information to locate and harass victims? 
• Hear their harrowing stories - under pressure from hacks to tell all?
• Consider offering them money too? Thereby scuppering prosecutions by paying potential witnesses? 
• Weigh the evidence?  Who made you the best judge?
• Mightn't this have compromised any subsequent investigation whilst Savile was alive? 
• Even if your hypothetical leak happened after Savile's death, would it not prejudice other investigations into Savile's enablers and colluders?  Such as current Savile investigation, Operation Yewtree?
• And what about the effect on Savile's vulnerable victims? Brave enough to come forward, safe in the knowledge they could trust the police not to leak intimate details of their ordeals to the red tops? 

Would you not stop and give that any thought, Kelvin?  And yet you're so CERTAIN any news editor would have published a story on Jimmy Savile from a CPS file leaked by a hypothetical Surrey policeman? Really, Kelvin?  Really?

Or do you know something the rest of us don't?

You really ought to think through the implications of your imaginary scenario, Kelvin. Hypothetically, your Surrey policeman could have been arrested for leaking that Savile information for "a few bob".  In absolute horror, we would now be waiting to see Operation Yewtree in slow motion collision with Operation Elvedon - with fallout more spectacular than the Large Hadron Collider cranked up to maximum.

Consider that scenario, Neville and Neil. Think it through, Kelvin.  Because THAT would be, in your words,  "A very big story indeed".

Hypothetically.

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You can contact the author on Twitter @brown_moses or by email at brownmoses@gmail.com

Hackgate - Ten To Watch For

The latest piece from My Regular Contributor, looking at ten things to watch for in the ongoing Hackgate saga

1  Hole-in-the-Wall:  Steve Coogan told the Leveson Inquiry how the minutiae of his life was intruded on by Glenn Mulcaire.  Coogan was shown Mulcaire's notes (p14):

I saw a redacted copy, which had information about money I'd withdrawn from a cash machine,...the precise amount of money I'd withdrawn from a cash machine, which would suggest someone was looking over my shoulder when I was doing it.

Shoulder-surfing is only one explanation. A case cited in the 2008 Serious Organised Crime Agency report ('The Rogue Element of the Private Investigation Industry') is clearly Glenn Mulcaire. Following a description of his modus operandi, is this curiosity (p5, SOCA 2008):

The investigator also managed to intercept the landline of an Automated Telling Machine at a local shop to distance himself from his calls to the voicemail boxes.

Mulcaire is known as a former footballer, not telecomms technician.  Did he have that expertise himself?  Or was technical expertise recruited from amongst a wider private investigator network?  What kinds of ATM info interception were feasible?

2  Tracking: UK parent company of News International, News Group Newspapers (NGN), does not dispute that it commissioned Derek Webb to do surveillance on targets for stories.  Ex-policeman Webb was variously designated as private investigator / freelance journalist depending on when it was considered politic for him to hold an NUJ card.  But NGN has also admitted (p8 para 31, Admission of Facts) that information, unlawfully obtained by its own journalists from Mulcaire, was used to enable un-named "private investigators employed by News of the World to monitor, locate and track individuals to place them under surveillance."  It will be interesting to know what tracking and surveillance technology was deployed, and by whom.

3  Safety First: And on the subject of security technology, this small nugget from Mary-Ellen Field's evidence to Leveson is intriguing - the last time she ever spoke to celebrity client Elle McPherson after acrimoniously parting company:

I received a call out-of-the-blue from Elle asking me who the security people were who checked her house, office and car.  Elle did not explain why she wanted this information -- however I provided it to her.  It occurs to me now that it is likely that she needed that information following contact from the police in relation to phone hacking, having arrested Mulcaire.  I know now that Clive Goodman's column in the NOTW was cancelled the previous week.

If accurate, it is interesting to note police interest in how celebrities are willing to pay elite private security companies to safeguard their privacy.  For example, one such specialist company - Brookmans International - were very supportive in providing protection and security technology to Kerry Katona. Sadly, their best efforts did not prevent stories about Katona's private life appearing in newspapers.

4  Still on the topic of technology:  Operation Tuleta will soon be back in the news as awaited charging decisions are due.  The ongoing Operation Tuleta investigation includes Operation Kalmyk, focusing on alleged computer hacking related to Northern Ireland.  Outgoing MET DAC Sue Akers was asked about computer hacking at her final appearance before the Home Affairs Select Committee in early September

Q You mentioned computer hacking in the course of your remarks. What can you tell us about the progress of investigations on that, please?
Akers: It is difficult for me to go into any detail, obviously, because it is an ongoing investigation, but there are seven people who are on bail in relation to computer hacking.
Q  I know it is difficult for you but are you able to tell us generally what the nature of the allegation is in those cases, the general character?
Akers: You will have seen, maybe, the Panorama programme. There are inquiries in connection with that. It is difficult for me to go into much more detail.
Q  Are you able to say anything about the characteristics of the seven people who are under investigation, what category they might fall into?
Akers: I suppose the general category you would say is private investigator, some of them ex-police.
Q  Are there files with the CPS in relation to those matters or not?
Akers: Yes.

5  Weeting: There are still charging decisions outstanding under Operation Weeting.  Eight have already been charged:  Rebekah Brooks, Andrew Coulson, Stuart Kuttner, Glenn Mulcaire, Greg Miskiw, Ian Edmondson, Neville Thurlbeck and James Weatherup.  However the Crown Prosecution Service (CPS) Principal Legal Advisor announced at the same time that three others arrested would have no further action taken and

There are two suspects in relation to whom the police have asked me to defer making a decision whilst further enquiries are made. For this reason I do not intend to give their names or say anything further about them at this stage.

6  Andy Coulson - is still waiting for his Appeal over News Group Newspapers refusal to pay his legal fees.  In essence, Coulson argues NGN are contractually obliged tp pay his legal costs accrued as a result of his time in employment at NGN, whilst they argue their contractual obligation does not apply to illegal acts he may have undertaken. At the time of his unsuccessful hearing in December 2011, Coulson had been arrested by both Operation Weeting and Operation Elvedon.  Since then he has additionally been arrested once more (Operation Rubicon) and charged twice (Operation Rubicon and Operation Weeting).  Coulson is therefore clocking up massive legal fees for which he is, pending Appeal, personally liable.  The Appeal Hearing should be instructive.

7  DCI April Casburn - suspended from her MET job in Counter Terrorism Command (Specialist Operations), is due back in court, at the Old Bailey on November 2nd.  She is charged with offences which include an alleged offer to supply News International with insider information on Operation Varec - a sub-investigation of Operation Weeting.  Arguably the most significant aspect of Casburn's Old Bailey appearance is that she "must enter a plea to the charge"  - the first defendant to do so since the News of the World scandal erupted.

8 ICO:  There may be more charges to come, but this time by the Information Commissioner's Office (ICO).  Asked about the future sequence of events which might, in time, signal the closing stages of Hackgate, DAC Akers told the Home Affairs Select Committee that it would be necessary to involve the ICO in charges to be laid.  The ICO has its own powers to take action in relation to the Data Protection Act, in addition to any police/CPS prosecutions -

the Information Commissioner must get involved where there is not quite such serious criminality but, nonetheless, there are breaches of privacy.

Given the criticism of the ICO's failure to achieve convictions under Operation Motorman, they would doubtless be glad of the opportunity to take action on data protection offences.  And who is to say that potential prosecutions might not result, belatedly, from Operation Motorman itself?

9  Will Hackgate spread further?  Possibly

Home Affairs Select Committee  Q49 Mr Winnick: In your evidence to the Leveson inquiry, you said that Trinity Mirror, News International and Express Newspapers were being investigated for corrupt payments to officials. That is what you said?
Sue Akers: Yes.
Q50 Mr Winnick: Are there other organisations now involved in the investigation, apart from those?
Sue Akers: Those are the organisations that I have said publicly, and I think I should not go any further than what is in the public domain.
Q51 Mr Winnick: When you say you do not want to go any further, I do not want to press you when you consider that it would be inappropriate, Deputy Assistant Commissioner, but you have mentioned companies already to the Leveson inquiry. You are saying, in effect, if I understand you, that there are other companies but for some reason you do not want to mention them today.
Sue Akers: I am certainly not ready to say anything in the way that I did about the Mirror Group and the Express Group because our investigation is still continuing.
Mr Winnick: If that is the position, I will not press you further. Thank you.

10  Sue Akers' replacement - is MET Deputy Assistant Commissioner Steve Kavanagh, so his name will become familiar to Hackgate watchers.  His face may already be familiar from his press conferences during the London riots in 2011.  There is already one Hackgate gig awaiting him at the Leveson Inquiry. In addressing Future Directions, Leveson said

As I have just made clear to DAC Akers, it is important that my report is based on what is then the most up to date information about the progress of the criminal investigation.... I make clear that I will issue another request under s. 21 of the Inquiries Act 2005... Notice of a hearing will be provided in good time to all core participants to Modules 1 and 2 

Unless Lord Justice Leveson decides to accept a substitute written statement, Steve Kavanagh could be back in front of the cameras soon in Court 73.

So, plenty still to watch out for....

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You can contact the author on Twitter @brown_moses or by email at brownmoses@gmail.com

Hackgate - Dear Surrey Police

Another article from my regular contributor.

Dear Surrey Police,
There are eight senior, Deputy and Chief Constables in England currently under investigation.  Count them - EIGHT - for a variety of allegations: using undue influence, corruption, misuse of public funds, gross misconduct, even lying to the Independent Police Complaints Commission.

Well okay,  I grant you, one is appealing being sacked for gross misconduct, the first since 1977.

True, that has attracted press coverage.  But only because of its rarity value.  We're much more used to senior officers being allowed to quietly retire on full pension to avoid disciplinary action - like this one, or these.

Sometimes though, you get things right. You did interview Jimmy Savile about alleged sexual offences.  And when you decided there was enough evidence, you were prepared to follow that up with a referral to Crown Prosecution Service.  Sadly, the CPS decided insufficient evidence so no charge could be brought. There were others though who didn't voice their suspicions and have attracted criticism for their inaction - such as this tweet:

No, sorry, Janet. Sorry Esther. I don't buy it. If you knew and you did nothing, you're part of the problem you condemn.
— Louis Barfe (@LFBarfe) October 4, 2012

So credit where it's due - you did investigate.

Because who doesn't loathe such hateful crimes against children, doubly victimised by crass abuse of power and smothered by walls of silence?  Who would not feel like weeping for their powerlessness?  Unless it were Milly Dowler and you knew about that phone hacking.

And you knew.  It's not even in dispute.  The News of the World "admitted to Surrey Police in April 2002... (it) had unlawfully accessed Milly Dowler's voicemail messages."  News International has conceded that to victims taking civil action.  It is the main foundation of the criminal prosecutions too, of course - conspiracy unlawfully to intercept communications.  Those charged in relation to Milly Dowler are Rebekah Brooks, Andy Coulson, Stuart Kuttner, Greg Miskiw, Glenn Mulcaire and Neville Thurlbeck.  Are you seriously hoping no-one will notice?  Do you really think no-one will wonder who in Surrey Police was told?  Can you honestly believe nobody will ask why nothing was done to prevent phone hacking continuing? The next victims after Milly herself were her family - and maybe you could have prevented it.

Granted, you did invite the Independent Police Complaints Commission to investigate.

And that's the last we heard of that.  Doubtless the IPCC will kick the can further down the road, and we'll be told it can't report till the News of the World prosecutions conclude - when might that be? 2014? 2015?  But why?  By that time, we will have guessed that no charges will be made.  And we will definitely have clocked if anyone were to be allowed to quietly retire with a full pension and avoid disciplinary action.

No, sorry, Surrey.  Sorry IPCC.   I don't buy it. If you knew and you did nothing, you're part of the problem you condemn.

There are Questions Still Unanswered, and continuing Discrepancies and Delays.

The Leveson Inquiry has acted like a searchlight. Regardless of its outcomes, it's served the public well, giving the opportunity to watch the process.  Whatever its Report recommends, the open scrutiny is necessary if the battered and bruised public confidence in policing is ever to start healing.  Two Prime Ministers spelled out the 'Dowler Test'.  David Cameron said,  "... bear in mind who we're doing this for, why we're here in the first place, and that's the real test. If the families like the Dowlers feel this has really changed the way they would have been treated, we would have done our job properly."

Gordon Brown said

...the question (is) that the Dowlers put to us: how can we defend the privacy of a family who at their moment of greatest grief and at a time when they're at their most vulnerable have their privacy invaded by the press in a way that splits the family apart and makes everybody in that family suspicious of each other, and particularly so since it's been done by unlawful means, which include telephone tapping.... I think Lord Justice Leveson put it: 'who will guard the guardians?' was a question which he wanted to address. I will say: who will defend the defenceless?

Who guards the guardians?  We do.  All of us.  The private citizens, public servants, our MPs, the bloggers, investigative journalists, the armchair Leveson viewers, Hacked Off and the pissed off - asking our questions and putting your integrity under our spotlight.

And we are watching what you do next.

Yours Faithfully,

Mr Reg Contributor

c/o Brown Moses

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You can contact the author on Twitter @brown_moses or by email at brownmoses@gmail.com