Sunday 11 December 2011

2202 Leveson Inquiry 9 The failure of the office of the Information Commission to prosecute Journalists

Evidence before the Leveson Inquiry is reaching the stage when it is possible to make some preliminary Judgements although it is important to stress that the Inquiry is being given access to a vast quantity of documentation not available to the public. There is a site heading of Evidence but with no documents appearing to-date. I therefore rely on the statement of evidences and transcript together with watching the interactions live. From my one experience it is in the original documentation that truth is often buried although again what people record of what they and others say, unless the recording is audio and visual, has also to be treated with caution unless there is substantial confirmatory documentation and statements

Appointing a Judge with criminal law and trial experience appears to have influenced the format with the case for the Prosecution- the victims and the public, so to speak, over the first three weeks, and is now moving to the Defence, the tabloid media, provided the opportunity to put their perspective. On the evidence of Friday December 9th it is appears that the approach to the victims and to the academics and other neural contributors will be different to that which the Newsprint managements and to the senior police and the politicians and other institutional leaders will face in subsequent modules.

On Friday the former Information Commissioner, Richard Thomas, was treated to six hours of vigorous questioning by Counsel and by Counsel for News International (News of the World and Sun) and for Associated Newspapers (Mail and Mail on Sunday). For the greater part Mr Thomas passed through with flying colours although I believe we came closer to understanding why individual journalists and their managers were not formally interviewed and where appropriate prosecuted.

It is also important to preface each writing with the reminder that the purpose of part one of the Inquiry concerned with the ethics and the culture of “News”print and not their magazines or magazine in general, or visual and audio news broadcasting and with their regulation. Before the form of regulation can be determined, the Inquiry needs to establish what the problem has been and what the problem is now.

So what preliminary judgements can be made?

The Inquiry had established that the problem has been the use of unethical practices with a range of illegal activities commissioned by newspapers corporately and their agents with who knew what and when left to part two after the police investigations and anything criminal prosecutions have ended.

We know that their principal agents were Stephen Whittamore who was convicted of a minor offence despite known to have undertaken thousands of investigations conspiring with corrupt police and DVLA officials but without of the 400 or so journalists or their newspapers being prosecuted; and by Glen Mulcaire who according to a police statement last night was responsible for at least 800 illegal listening of telephone message and for gaining information on several thousands other individuals for a similar and other purposes. He went to prison for one offence with a small number taken into consideration, together with one specialist journalist also going to prison and where for several years the newspaper corporately, the Metropolitan Police and others such as the Press Complaints Commission covered up, misrepresented and downright lied about the present position.

The challenge facing the ongoing police investigation and the Criminal Justice system is whether the victims will not get justice. We have the experience when the full force of the law was quickly brought to bear on individual member of the public who rioted, threatened and took lives but who in the main stole property, while it appears that it will take years to consider whether charges can be brought on all those responsible for stealing precious personal information and which has involved wrecking lives and committing acts of terrorism. The media often refers to the court of public opinion so let those involved now be judged. As I have said before I will shed no tears if individuals journalists, their managers and proprietors go to prison or for “innocent” journalists who lose their jobs but I fear that as with the Bankers and financial manipulators they will continue to draw their high salaries and bonuses while it is the rest of us to find ourselves out of work, losing businesses, losing homes, breaking up families, having negotiated contracts on employment, on pensions on wage agreements broken and having our standards of living significantly reduced so they can continue their life style

What I suspect Leveson will reveal is that alongside the tabloids, senior police officers and senior politicians as well as other police officers and politicians have been part of the conspiracy, most unwittingly, perpetrated on the general public and the individual victims of industrial scale unlawful activity.

It is also important to underline the warning of Richard Thomas the former Information Commissioner yesterday that the Whittamore research revealed that a range of other interests were also commissioning information which in the case of Whittamore was obtained illegally- local authorities, financial institutions- debt collectors and insurance companies, and lawyers, in circumstances where it was not evident that lawful authority to institute secret surveillance and personal information gathering had been obtained. He mentioned that as I assume the present Information Commissioner will subsequently confirm, that while complaints regarding the newsprint have significantly reduced, those by other bodies has not,
We have learned that the range of unethical or illegal activities by newsprint includes surveillance of individuals where there is no public interest defence and where the behaviour of the paparazzi- the hard end is not only criminal but conducted by criminals; securing information on addresses and telephone numbers where individuals have not made these public, unauthorised vehicle registration searches, unauthorised medical, educational, financial and court record searches including criminal convictions. It is this latter group which Whittamore provided for payment. The Mulcaire documentation covered listening to mobile phone messages and out of this information has also come listening to landline and mobile phone conversations, emails through computers and internet phones and other Internet illegal searchers. (Outside the scope of the inquiry is the extent to which the security services, the police and other designated agencies may use private investigators to obtain information permitted under current legislation in an approved manner.)

So far we have had three contributions from the Office of the Information Commissioner. The former Commissioner and his Deputy and the Chief Investigator who dealt with the information arising from Operation Motorman. It is understood that the present Commissioner will also contribute on the present position and that since he was appointed in 2009.

As previously reported in March 2003 the Office of the Commissioner gained information which immediately revealed that 400 journalists from the tabloids and other newspapers had commissioned and obtained stolen and illegal personal and confidential from private investigators who in turn corrupted police and DVLA officials for the information.

The principal investigator who uncovered and analysed the information alleged that the management of the Office was afraid to take on the media because of their power and that he was ordered not to interview the journalists and their editors with a view to prosecuting for breaches of the law on the confidentiality of information separately from the police investigation which primarily involved the corruption of police and DVLA public officials.

The former Commissioner Richard Thomas, in charge 2002 to 2009, denied that he had personally given any such orders or personally instituted any policy which amounted to hands off the Owners, Editors and journalists despite evidence supported by internal and external legal evaluation of wrongdoing which merited prosecution. Mr Thomas went on to explain why they failed to pursue even one prosecution directly and that action instead had been taken to stop the practices by persuasion which he believed has been successful for the greater part except for the introduction of a prison sentence for law breakers in addition to fines, to act as a deterrent.

One other key issue is that Mr Thomas confirmed that he had met with Mr Owens and his supervisor shortly after taking up the appointment when Mr Owens arrived with boxful(s) of was described as a treasure trove. He could not remember if his deputy had been present and no official note had been made of this meeting and which I find extraordinary given the significance of the meeting. The Inquiry did not raise this aspect.

Before giving his memory of this event Mr Thomas explained that previously in the mid 1990’s the office had taken action against a private investigator for supplying protected information to the media. He was aware of the Guardian report in September 2002 indicating a data black market and that a private detective agency had sold information to the News of the World, the Daily Mirror and the Sunday Mirror. The Sunday Telegraph reported in December 2002 that private detectives routinely tapped private telephone calls for the tabloid press with some agencies doing the bulk of their income from such work and such clients. The Times in January 2003 reported that the Inland Revenue human resources director admitted there was evidence that some employees had sold confidential information to outside agencies and House of Commons Select Committee was looking into these matters. This committee concluded that there was a depressing catalogue of deplorable practices
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Mr Owens explained that a diary note suggested that he had been made aware of the Mr Owens’s raid on Whittamore before it had taken place and that the note indicated he needed to talk to the deputy Commissioner about the media and the law before the meeting with Mr Owens was arranged, He remembered that at the meeting there was reference to a spider’s web and a treasure of information on an industrial scale with the help of a diagram.

Mr Thomas recalls congratulating Mr Owens and his team on a job well done. He had not given any directive about the way the work should proceed because that was not his role and while appreciating its significance it was one of several serious matters under his consideration and would have assumed the work would have progressed and appropriate action taken. Mr Thomas did agree that on the basis of information then available Journalists and their employers were implicated in the illegal activity and that as the legal papers provided the Inquiry showed they were keeping alive the option of prosecuting journalists throughout the rest of 2003, 2004 and even into 2005. I shall return to what happened over the next months and year. I have to make the point that it is extraordinary that there was no official note of the meeting. I ask who advised Mr Owens in advance of the raid and who arranged the “informal” briefing.
Mr Thomas confirmed that according to the structure Mr Owens and the investigation team worked to Ms Jean Locket who worked to the Deputy Commissioner. While there has been no reference to Ms Lockett or why she has not been called to give evidence (perhaps in the Inquiry part two) he did confirm the impression which the Deputy Commissioner gave of himself that at the time he had worked for the organisation for 18 years and had reached retirement but continued for further two years in his work on policy on data protection matters in the UK and in Europe. While he did not have hands on operational engagement and was disengaged he was not excluded altogether. He had had a falling out with Mr Owens one to two year before and it was no secret in the office of the bad feeling between the two.
I underline that it is interesting that the immediate supervisor for Mr Owens and his investigation team, Ms Jean Lockett has not been called as she should be able to settle key factual issues. However as his Lordship reminds from time to time he is not involved in determining matters of factual dispute in this first part of the Inquiry.

Mir Thomas explained that while as head to the agency he assumed that the investigation would take whatever course the evidence indicated along side those matters being directly investigated by the police, he had not given personal consideration to the issues involved.

He explained that the development took place within two months of his appointment and that a major debate about Identity cards had just been initiated. He was seeking to reorganise the central office with establishing offices in Belfast, Edinburgh and Cardiff, The was the development of Freedom of Information Act and a big programme to simplify the approach to data protection. A new employment code of practice was being heavily criticised in the press and elsewhere. There was a major problem with bogus agencies purporting act for the Commissioner and take money from other organisations. They had an IT system which was causing trouble which was being installed. They had major row with the audit commission about the way they were carrying out their functions. In September Ms Lockett had attended the meeting of the senior management team to up date in what was happening in relation to Operation Motorman and on the publicity which could be expected.

Mr Jay for the Inquiry posed the issue in the form of a question: May I try to sum up the position in this way? Given two facts which we know Mr Thomas- the first fact is that journalists were never interviewed by your office and the second fact that in such an interview would be sinequa non to a prosecution, out of fairness to the journalists on the one hand, in order to obtain further evidence- does it not follow that either there was a policy decision not to pursue that course, or alternatively, there were operational failures or decisions by the investigators not to carry out an elementary step, namely to interview?

Mr Thomas said he did not think it was like that. If there was a policy it was not one he had a hand in it, “one which I knew about which I made or was told about“. Mr Jay persisted That’s not quite an answer to the question. Does it not follow either one or two and then I will allow you to say what you wish. Mr Thomas said he was not sure that it completely follows if there could have been interviews of journalists closer to the time to the actual prosecution, then is not that a third option? Mr Jay said he did not follow this. If it is not either then formulate a third option. Mr Thomas agreed that if there was to be a prosecution of a journalist he would have to be interviewed in advance but was not convinced this had to happened in the period March October before the discussion with an external lawyer “Counsel” took place.

Mr Jay again posed the question either there was a policy or incompetence in your investigation officers on the other Mr Thomas said that if it was put in those terms then the had to say the latter, but he wanted to make it clear that everything he had dome right through 2005 to 2007 that he had not thought or anybody else had said Back off the Journalists.

Mr Jay moved on to other matters at this point but had this been a determination of fact he should have pressed Mr Thomas further. How do you know no one else took the decision and are you saying that Mr Owens lied to the Commission about being told not to interview the journalists. I go back to my previous question where is Ms Lockett in all this?

Later Mr Jay said to Mr Thomas you had hundreds of journalists, probably up to 400 in your crosshairs but you weren’t taking any positive steps to enforce rigorously against them at this stage? The reply is odd given that he had just accused the team of incompetence he said: As far as I am aware my team were doing just that. We had team briefings probably once a month and I would have been kept very generally in the picture that the case was proceeding.

My Jay then went to the meeting Birmingham in October 2003 attended by an in house lawyer, Mr Owens and an investigator. The note of meeting revealed that the Metropolitan police were looking to prosecute Whittamore and three others for the prosecution of a public official. The police were not at that point contemplating prosecuting any journalist. Previously Mr Thomas mentioned that he was aware the police had interviewed four journalists. Mr Thomas admitted that he had not given thought to the fact that no journalist were under consideration for prosecution.

It is at this point that the note of the meeting stated that “with regards the prosecution of the press although there is evidence to support a prosecution, a prosecution would not be considered favourable because of the financial aspect.” Mr Jay said either this was the Counsel view which would have been unusual or it Counsel was reiterating the instructions he had been given. Mr Thomas said he thought the Counsel had said this although Mr Jay drew attention that this was a policy matter for his office.

Mr Thomas replied that it was not his or the organisation’s stated policy but the sheer cost and logistical challenge of going against the press which meant the Commissioner should concentrate on the investigators.

Mr Jay pressed Mr Thomas on the issue of whether there had been a policy from the outset not to prosecute journalists. Counsel obeys instructions he added Counsel does not know what your resources are. Is not merely reflecting what he has been told. Mr Thomas said he did not see it that way, He did not know who could have given him that instruction. It did not come from him or anyone that he had personal awareness (which again begs the question) Justice Leveson intervened Then it be wrong? Mr Thomas explained that the Counsel was one which the Office had used regularly and knew their situation. Mr Jay pointed out that they could have cherry picked the most promising cases, the one or two national police computer cases-the family and friends cases. We might interview the journalists in those cases we might interview the editors. My Jay wanted to know who had put the idea into Counsel’s head. Before breaking Mr Jay summed up the position at this point

Your concern was Look if we pursue powerful people, namely media groups and journalists. It is going to cost us a lot of money. It’s risky. It is a better course to involve the Press Complaints Council, politically or more generally, rather than go under section 55. That was you think, wasn’t by this stage?

Mr Thomas then read out the relevant section of his letter to then chairman of the Commission following the October statement of the Counsel.

“I am considering whether to take action under data protection Act against individual journalists and /or newspapers. My provisional conclusion however, is that it would be appropriate first to give the Press Complaints Commission and its code committee the prior opportunity to deal with this issue in a way which will put an end to these unacceptable practices as whole. This would involve subject to suitable safeguards, providing you with some of the evidence that our investigations have revealed, Following your review of such material, It anticipate this would led to a revision of the code. The approach I have in mind is consistent with the Select Committee which were addressed to our respective organisations and could provide a more satisfactory outcome than legal proceedings; I believe that this approach would also be consistent with the expressed wish to demonstrate the PCC effectiveness.”

There was then a short morning break

Mr Richard Thomas CBE provided six statements and a time line of his involvement. He qualified as a solicitor in 1973 and had experience working full time for the Citizens Advice Bureau. In 1979 he became legal adviser and then head of public Affairs for the National Consumer Council, In 1986 he was appointed director of consumer affairs for the Office of Fair Trading. He was Information Commissioner from 2002 to 2009.

He is presently part time Chairman of the Administrative Justice and Tribunals Council three days a week and he holds a number of other positions Deputy Chairman of Which, a Think tank on Information Policy Leadership and a member of the Board of the International Privacy Professionals.

The first issues covered in the morning were of the legal position and process. The first question was whether the relevant legislation covers both the newsprint officers who commission and the agent or the person to obtains the information. The key issue posed by the Inquiry is that does this section include the position of a journalist who purchasers requested information from an agent and then receives the information from the agent. Mr Thomas said he could not recall being party to a discussion within the Office about this point. Lord Justice Leveson commented “normal principles of aiding and abetting would probably work, in that he is also obtaining it. Mr Thomas said that he assumed that the section did cover the situation where someone got someone else to obtain the information but this had not been tested by the Commission. The law allows for the Defence of Public Interest.

Mr Thomas agreed that the Defence could not be used to justify a fishing expedition, Mr Thomas said that he had advised that for such a defence to be valid the Journalist needed to record his reasoning at the time i.e. before publication, to get advice from legal advisers and authority from editor/immediate superior. Mr Thomas repeated the point that each case had to be judge on its merits added that getting hold of an address and telephone number so a journalist could talk to someone would be a difficult to sustain on its own.

There was then a substantial period when Mr Thomas was questioned closely about the law and which he appeared to have at his finger tips despite the period that has elapsed since he was the Commissioner. I picked out that a fine is limited if a prosecution takes place at a magistrates’ court but unlimited on indictment and the ability to enter and inspect requires a warrant from a district judge. There were three other interview sessions with Mr Thomas during the day which I hope to report shortly.

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