Thursday 21 February 2013

Hackgate - Elveden - Murdoch's Catch 22

From my regular contributor.

A new investigative strand has opened up in Operation Weeting. Charging decisions from the Crown Prosecution Service (CPS) are beginning to roll in Operation Elveden.

It's an opportune time to take stock, reflect on what may be happening with Hackgate, and posit some emerging patterns.

Weeting (phone hacking) arrests and charges have a tendency to be linked in marked clusters. Groups of those arrested or charged tend towards a cluster of accused, with alleged illegalities enabling and functioning around a single 'private investigator'. Three examples - 
  • Operation Weeting charges (July 2012
  • Operation Sacha (sub-investigation of Weeting) charges of conspiracy/perverting the course of justice (May 2012
  • Operation Weeting arrests (February 2013), the new investigatory strand. Significantly this cluster - NOTW Features rather than News- may relate to a different and as yet unidentified 'private investigator' 
Each relates to alleged offences at the News of the World (NOTW) - even where those identified previously or subsequently worked at other titles.

But Operation Elvedon is very different.
  • It is the only hackgate Metropolitan Police (MET) operation supervised by the Independent Police Complaints Commission (IPPC). An operation 'supervised' by the IPCC is not freestanding or completely independent. Neither is it 'managed' closely by the IPCC. It is lower level and pretty much hands-off - where the investigation is "carried out by police Professional Standards Departments under their own direction and control. The IPCC will set the terms of reference and receive the investigation report when it is complete." (IPCC
  • Elveden arrests and charges, as yet, do not cluster in the same way as Weeting. Its charateristic pattern tends to a single police/prison service/ public official allegedly leaking confidential information to one or more press contacts - whether for money or not. Here are two examples where it is accepted no payment was involved: one conviction, and one recent arrest
  • Elveden charges of police/public officials are to date 'Misconduct in Public Office' or conspiracy to same. The issue at the heart of a misconduct offence is the public trust - NOT whether payment was offered, paid or accepted. There is however a whistleblower-type, public interest defence on motivation if the accused can demonstrate they had 'reasonable excuse or justification' (Misconduct in Public Office). Misconduct offences can carry more severe penalties than Weeting conspiracy to intercept voicemails, up to and including life imprisonment. 
  • Elveden arrests and charges also include instances where payment IS alleged. For example, £6450 specified (here), £3350 (here), and £1750 (here). We don't know if these are selective, specimen charges and whether, hypothetically, there are other instances to remain unprosecuted where sensitive confidential information was leaked. Now then, now then - speculation is neither use nor ornament. 
  • Weeting largely Involves the defunct NOTW but Operation Elveden applies mainly (but not exclusively) to the Sun. With the exception of a selected senior few, arrested NOTW employees are getting no support from News International for legal defence. Conversely, arrested Sun employees are having their legal costs paid by News Int. 
The very specific amounts noted in some charges are enlightening. They indicate MET/CPS/IPCC confidence in their evidence that must therefore include specific audit trail. In each case, the information leading to arrest is acknowledged to have come from News Corporation's contraversial Management and Standards Committee. Much of that evidence provided by the MSC comprises the mammoth Datapool 3 email archive. Despite court order, News International were forced to make "limited admission” that senior managers tried to conceal the voice-mail interception scandal from police by destroying e-mail searches that could reveal more damaging evidence before a trial... "They are to be treated as deliberate destroyers of evidence,” Vos J said of London-based News International at the hearing." Further "secret e-mails were disclosed in December by Paul Cheesbrough, News International’s chief information officer since 2010...The names of the people who sent and received the messages are secret because of the ongoing police probe....News International spokeswoman Daisy Dunlop declined to comment on the computer searches."

Paul Cheesbrough was later promoted from News Int to a more senior role working for News Corp, as was Daisy Dunlop, and MSC member Will Lewis - so some key News Int personnel being defensively withdrawn from Wapping stateside to News Corp. 

From the sustained efforts put into its attempted destruction, it seems clear the Datapool 3 emails (see here) are the ticking 'bombs under the newsroom floor'.  Most of the Elveden case-building is reliant on Datapool 3 as admissible evidence.  If one case falls then the others may fall over like dominoes - it could be argued the stakes are far higher in defending Elveden than Weeting.  Paying legal costs for arrested Sun journalists may be an altruistic drain on News Int's bottom line, but it does mean accusations of 'conflict of interest' have been levelled: 'Arrested Sun journalists are between a rock and a hard place'.  What Rupert Murdoch fears most is both UK and US authorities making further inroads into prosecuting corporate charges (Telegraph).

UK corporate charges were first announced as a possibility by Sue Akers in evidence to the Leveson Inquiry.  Home Secretary Theresa May also confirmed US investigations in her evidence (Exhibit TM-1):
FBI Department of Justice - (are) conducting an investigation into allegations that News Corporation tried to hack into mobile phones of 9/11 victims and claims that Murdoch publications paid inducements to police officers and others.  News Corporation, a US company which trades in the US stock exchange as a parent company, can be liable for the acts of foreign subsidiary companies (News International/News of the World etc).
The MSC has proved very, very expensive to the parent company, News Corp.  However, the MSC is necessary for News Corp to demonstrate voluntary cooperation with police investigations.  The only way for Rupert Murdoch to mitigate possible US offences under (FCPA) Foreign Corrupt Practices Act or (RICO) Racketeer Influenced and Corrupt Organizations Act is to be seen to be cooperating with investigations - hence the MSC.  Yet there are clear signals of a sea change in MSC cooperation from May 2012 (see here).  In addition, News Int is pulling up the drawbridge on its out-of-court settlement scheme for victims. It will cease on April 8th.

The logical imperative for News Int is to defend Elveden aggressively through pre-trial legal argument, objections on admissibility of evidence, case and plea management strategies and so on.  Each and every trial holds the prospect of more and more evidence emerging of illegal modus operandi.  For News Corp the priority is the necessity of continuing a gesture of voluntary cooperation. Murdoch has to orchestrate a delicate game of keeping everyone on side and playing conflicting loyalties - police, courts, US authorities, plus employees who may be under pressure to implicate senior executives.

The upshot is the internecine spectacle of News international paying millions to defend against evidence provided by News Corporation - with Sun journalists as mere collateral damage.

Related Articles
Hackgate - "Snakes And Ladders" At The Met
Hackgate - April Casburn's Conviction - Myths And Misconceptions
Hackgate - Varec Revisited - Dissent In The Ranks
Hackgate - Sue Akers' Swansong
Hackgate - "Newsdesk Here, Kelvin Speaking..."
Hackgate - Andre Baker - A Hackgate Footnote?
Hackgate - Ten To Watch For

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