After a short break of six minutes during the morning of December 9th the former Information Commissioner Richard Thomas CBE was further probed at the Leveson Inquiry on the decision not to prosecute any of the 400 journalists or their editors for the flagrant breaches of the law on the protection of personal and confidential information through the purchase of information acquired by unethical and at times illegal means by inquiry agents who in turn had corrupted police officers and officers of the Driving Licence and Vehicle Registration Centre.
The key issue remained the decision of the Information office not to prosecute the Journalists and the revealing evidence is introduced by Lord Leveson who quotes the Judge at the trial of Whittamore and three colleagues, asking why are the journalists not here?
However the importance of going over the details of what was said at the inquiry is in relation to the present situation where over a dozen individuals have been arrested but none charged to date and where it can be assumed that the Crown Prosecution service will face the same issues as they faced before as will the present Information Commissioner. This explains to me why the Inquiry is being held in two parts with the first part being held now when it would normally only following police inquiries and prosecutions and then start with what happened and why and then deal with the future. In effect the Inquiry is doing what Mr Thomas decided do which is to concentrate on Prevention because the expectation is that the prosecution process will be long and thwart with difficulties and where the outcome may indeed prove perverse, to quote something Mr Thomas stated in evidence during the morning.
Mr Thomas confirmed that by the time of the second external opinion of Counsel on 22 December 2003 there was no question of prosecuting the journalists. He also confirmed that this was not because the case against them was not strong, but because of the logistical, evidential and likely legal challenges and their cost for an Office with limited resources. Mr Thomas backed up his judgements made at that time with the comment someone made to him in 2007 that thank God they had not prosecuted because they would have gone all the way to the European court at Strasbourg, the Court of Human Rights with Article 10 applying.
After these points the Inquiry moved forward to the holding by the Commissioner’s Office of a further meeting with the outside Counsel, Bernard Thorogood, in January 2005, who had been in communication with the Counsel for the case being conducted by the Metropolitan Police and Crown Prosecution Service (Operation Glade, where it was mentioned that journalists had been interviewed (earlier Mr Owens said four) and were reported to be “tricky, well armed and well briefed, effectively a barrel of monkeys.”
As I as am unfamiliar with this expression I looked it up and appears to mean the situation getting out of hand, farcical.
For the Inquiry Mr Jay nevertheless pointed out that even if the Commissioner had limited his prosecution evidence to the acquiring of the list of family and friends of the victims that had the journalist claimed Public Interest, a court would have found this risible.
Mr Thomas said that he did take the view that presenting two reports to Parliament and going to the Press Complaints Commission was the right course of action rather than being bogged down in years of litigation. He added that that he believed that every incident of hacking into databases predated 2006 was an indication that the newsprint media are presently behaving themselves. This was confirmed by the present Commissioner saying to Parliament in October 2011. Prosecution was not the only way to deal with the problem.
Lord Justice Leveson commented “That must be right.”
Paragraph 10 of the Counsel’s report reads “RT confirmed that that was his gut instinct(namely that they would be a barrel of monkeys, presumably and Mr Thomas confirmed that he felt if we had seriously thought of prosecuting the media we would face enormous difficulties.”
Mr Thomas then argued that this did not mean they were not still considering prosecution but that in his own words at the time “Lets leave that for a later stage” Mr Jay made the point that the truth was that pursing the journalists had become theoretical. Mr Jay reminded that Mr Thomas has used these words himself, you refer to the remaining possibility as however theoretical of prosecuting journalists. Mr Thomas persisted saying he had decided to wait to see what happened with the police case, seeing where that led to and then taking stock at that time. He added the significant words “But events proved otherwise. Events turned out otherwise. He also reminded that he had said to Counsel in January 2005 were they prejudicing their position by delaying and the reply had been “No you are not. You can come back to this at a later stage.” Mr Thomas added that he had continued to use the threat of prosecution as a means of getting a new Code of Practice from the Press Complaints Commission. Mr Jay then got Mr Thomas to agree that this was something of an empty threat as prosecution was only a theoretical possibly Mr Thomas said it was not a dead possibility. Mr Jay responded that it was as dead as it could possibly be Mr Thomas. Mr Thomas disagreed.
Mr Jay said because by that stage Operation Glade had hit an enormous Iceberg in that all four of the accused were given a conditional discharge. A policy decision was taken by the Information Commissioner and his colleagues to discontinue with Operation Motorman. It was then not legally in the Public Interest for the Information Commissioner to continue. Mr Jay said that in fact the policy decision had previously been taken. Mr Thomas admitted only that this was a slight overstatement but wanted to underline that the result of the effective collapse of the police led prosecution meant they could not go ahead with any prosecutions. Mr Thomas said they were not primarily a prosecuting authority and their main function was to promote good practice and that in the next two to three years he concentrated on preventing a similar situation arising in the future. He emphasised the potential limited consequence of prosecution for as with Operation Glade the outcome was very perverse.
The Inquiry then asked if despite the circumstances his Office has considered the separate charge against those who had commissioned them to do so. If there was evidence the journalists had paid these people to access databases illegally they themselves would be breaking the law. “Did you investigate this?” In a further exchange Mr Thomas explained that the response did not mean they had investigated in the sense of the interviewing journalists but they had considered the issue given the evidence available to them through Operation Motorman.
There was then an interesting exchange regarding something which the Inquiry Counsel said would be looked at later viz that Mr Whitamore had in fact pleaded guilty to an offence under section 55 of the Data Protection act but not guilty to the corruption charge. (My understanding is that he paid someone else to get the information and then charged the press in such a way as to make a profit for himself).
Mr Thomas said that the Motorman provided hard evidence of procuring- prima facie. Mr Jay said you were advised that to proceed was not in the Public Interest, Why should it not be in the Public Interest?
Mr Thomas said it would have a waste of time and effort for his organisation but also if we were to go to the Courts, it would be back to the magistrates courts and bring prosecutions. We would have to decide which of the journalists to prosecute. Should we go for the whole lot or some? And the strong advice from our Counsel was that we should not and could not proceed with such prosecutions. It would be attracting severe criticism within the court system if we were to go any further. Mr Jay pointed out that this after the April 2005 meeting and the written advice of May 2005. Mr Thomas had been very concerned and questioned the advice.
Lord Justice Leveson then intervened to ask Mr Thomas. Did you know the Judge at the trial asked where the Journalists were? Mr Thomas admitted that he did not know this until a month ago when he read the transcript of the trial. Lord Leveson corrected Mr Thomas that it was not the transcript but a note made by a lawyer at the Information Commissioner’s office that the Judge was told that a number of journalists were interviewed in the context of an indictment with corruption conspiracy but the indictment was later amended. Mr Thomas said that he was aware that the case had been one of conspiracy but had been amended to the Data Protection charge. Mr Thomas passed the observation that their lawyer had gained the impression that the case had not been well made by the Crown Prosecution service.
Mr Jay explained that his understanding is that two of the accused pleased guilty to the original indictment but for the two who did not, the additional charges under the Data Protection Act were added and they pleased guilty to these. So it did involve part Data Protection but remained focussed on the corruption Indictment. I am still not clear what officially happened at the trial and presume this will be covered in the Module involving the Police.
I suggest it is important to weigh up the significance of what has been said today during this morning with the former Information Commissioner.
In terms of the process of what would be a criminal trial it is not proven that Mr Thomas instituted any policy or gave any directions that the Journalists should not be interviewed with a view to prosecution until several months after the seizure of the documentation and that he then based his approach on Counsel’s opinion. However he did admit on oath that his organisation had been negligent in not doing so although he attempted to argue there had been a third way to await the outcome of the Police and Crown Prosecution action against four individuals, none journalists.
He was later criticised for attempting to put the blame on Crown Prosecution Service for in effect making a mess of the Corruption Indictment against Whittamore and three others. Nor is there evidence that the Deputy Commissioner gave the order not to interview the Journalists and their editors. He was described as being disengaged and involved in European matters as well as having reached retirement age.
Mr Owens a former senior police officer of 30 years experience clearly thought the evidence was there for a prosecution and was emphatic that he was told not to interview the journalists, something we heard the Commission had done in an earlier instance we were to hear from a Counsel representing News International, Mr Davies, later in the afternoon session. Mr Davies reminded Mr Thomas that a junior investigator to Mr Owens had summoned a journalist to the office of the Commissioner to be interviewed under caution on 11th December 2002 that is less than a month after Mr Thomas took up his appointment. The interviewed concerned Lord Levy and Lord Ashcroft. The paper had replied that the journalist would not be interviewed under caution. Mr Davies was making the point that the only reason the letter to the journalist was sent because two powerful people had complained about the inquiries of the Journalist who was investigating something at the forefront of public interest.
Now as this matter was only raised at the end of the day and Mr Jay did not cross examine there was no opportunity for the Inquiry to pursue whether it was this experience which led someone in the management of the paper or their legal department to tell the Investigators not interview the journalists which if they had and brought prosecutions on those issues not covered by Operation Glade, then the course of events may not have become “perverse“ as Mr Thomas was to record.
While the Inquiry in this part is not determining factual disputes it seems unlikely to me that the report published on this Part will not make reference to the significance, for good or ill of the decision of the Information Commissioner(corporately) not to interview let alone bring prosecutions against journalists and where the most that could be done would be fines. If the Information Office had prosecuted directly the journalists would not have been sent to prison but a clear message would have been sent to them in a public way, stop or else.
Counsel for the Inquiry then referred to the gross figures which had been reported to Parliament, and not those which Mr Owens had suggested were more accurate. There had been 13343 transactions of 5025 were actively investigated and positive known to have constituted breaches of the Data Protection Act. It is my understanding of the evidence of Mr Owens is that a transaction may have covered information requests for more than one individual hence saying that the total number of requests covered by the transactions was over 17500. Mr Thomas gave a long answer in which he explained how the figures were collated and presented in general terms but was unable to be specific about the composition of the 5000 breaches of the DPA.
Counsel for the Inquiry said that if you just added the commissions for Friends and Family requests and for those with the Police National Computer they appeared to total hundreds and not thousands. Mr Thomas said that the 6330 list included occupant searches thought to come from the telephone companies and are likely breaches of the DPA but the nature of these was not fully understood and are therefore only considered probable illicit transactions. Mr Thomas explained that by the time this information was presented there was a new team of investigators who with the in house team of lawyers had divided the information into three categories Definite, Probable and outside the DPA. Mr Thomas also explained that his office was not saying that every one of the transactions was commissioned by a journalist.
Journalists were significant but not the only customers of information obtained illegally in terms of the DPA. A large number of journalists were buying a large amount of information which could only have been obtained by breaching the DPA. The Office is saying that Journalists were driving the market.
Their only defence was one of Public Interest and Whittamore did not plead public interest at his trial. Mr Thomas added that it would have been possible for journalists to have argued that they did not know the information was obtained in breach of the Act and to establish guilt each case would have to have been examined individually and tested in court.
Lord Chief Justice Leveson said that if someone asked for a Family and Friends list the Journalist could not plead not knowing and Mr Thomas agreed but made the point that only a court could confirm the judgement, or otherwise. Lord Leveson added that he understood the point and Mr Thomas added” And that there may have been an offence in each particular case.”
In support for the issue of illegality Mr Thomas reminded that £500 was being charged for a Criminal record search £150-£200 for the DVLA check £750 for telephone call records and £65 and £75 for an Ex Directory number. My Jay also raised the point that if someone tried to locate someone on foot it would cost more than the £17.50 occupancy search via a breach of the DPA. The implication was it was cheaper to break the law than do proper journalist investigation work.
Mr Thomas said that newspaper organisations were estimated to have paid between £300000 and £547000 for the required information. Mr Thomas explained that because of an input error they had had to reduced the number of Sunday Times transactions to four and increase those of the News of the World to 228. They had apologised at the time change the published figures.
Mr Thomas went on to point out that no one had questioned the figures or requested a breakdown at the time and that in conversations it was admitted “ You’ve found people out, you’ve brought to the surface that which people either knew or had a broad awareness of what was going on.” Lord Leveson asked if he had conversations directly with Editors and when he said no Lord Leveson intervened to pint out that he had met Paul Dacre and Les Hinton of the Code Committee for the PCC. Mr Thomas said he thought they were proprietors which brought laughter. Lord Justice Leveson said I don’t think so. Mr Dacre might be pleased to be the proprietor of Associated Newspapers but I don’t think he is.
It was at this point that the decision was taken to proceed before the lunch break with the Information Commissioners dealing with the Press Complaints Commission. This is also an appropriate point to end this report.
The key issue remained the decision of the Information office not to prosecute the Journalists and the revealing evidence is introduced by Lord Leveson who quotes the Judge at the trial of Whittamore and three colleagues, asking why are the journalists not here?
However the importance of going over the details of what was said at the inquiry is in relation to the present situation where over a dozen individuals have been arrested but none charged to date and where it can be assumed that the Crown Prosecution service will face the same issues as they faced before as will the present Information Commissioner. This explains to me why the Inquiry is being held in two parts with the first part being held now when it would normally only following police inquiries and prosecutions and then start with what happened and why and then deal with the future. In effect the Inquiry is doing what Mr Thomas decided do which is to concentrate on Prevention because the expectation is that the prosecution process will be long and thwart with difficulties and where the outcome may indeed prove perverse, to quote something Mr Thomas stated in evidence during the morning.
Mr Thomas confirmed that by the time of the second external opinion of Counsel on 22 December 2003 there was no question of prosecuting the journalists. He also confirmed that this was not because the case against them was not strong, but because of the logistical, evidential and likely legal challenges and their cost for an Office with limited resources. Mr Thomas backed up his judgements made at that time with the comment someone made to him in 2007 that thank God they had not prosecuted because they would have gone all the way to the European court at Strasbourg, the Court of Human Rights with Article 10 applying.
After these points the Inquiry moved forward to the holding by the Commissioner’s Office of a further meeting with the outside Counsel, Bernard Thorogood, in January 2005, who had been in communication with the Counsel for the case being conducted by the Metropolitan Police and Crown Prosecution Service (Operation Glade, where it was mentioned that journalists had been interviewed (earlier Mr Owens said four) and were reported to be “tricky, well armed and well briefed, effectively a barrel of monkeys.”
As I as am unfamiliar with this expression I looked it up and appears to mean the situation getting out of hand, farcical.
For the Inquiry Mr Jay nevertheless pointed out that even if the Commissioner had limited his prosecution evidence to the acquiring of the list of family and friends of the victims that had the journalist claimed Public Interest, a court would have found this risible.
Mr Thomas said that he did take the view that presenting two reports to Parliament and going to the Press Complaints Commission was the right course of action rather than being bogged down in years of litigation. He added that that he believed that every incident of hacking into databases predated 2006 was an indication that the newsprint media are presently behaving themselves. This was confirmed by the present Commissioner saying to Parliament in October 2011. Prosecution was not the only way to deal with the problem.
Lord Justice Leveson commented “That must be right.”
Paragraph 10 of the Counsel’s report reads “RT confirmed that that was his gut instinct(namely that they would be a barrel of monkeys, presumably and Mr Thomas confirmed that he felt if we had seriously thought of prosecuting the media we would face enormous difficulties.”
Mr Thomas then argued that this did not mean they were not still considering prosecution but that in his own words at the time “Lets leave that for a later stage” Mr Jay made the point that the truth was that pursing the journalists had become theoretical. Mr Jay reminded that Mr Thomas has used these words himself, you refer to the remaining possibility as however theoretical of prosecuting journalists. Mr Thomas persisted saying he had decided to wait to see what happened with the police case, seeing where that led to and then taking stock at that time. He added the significant words “But events proved otherwise. Events turned out otherwise. He also reminded that he had said to Counsel in January 2005 were they prejudicing their position by delaying and the reply had been “No you are not. You can come back to this at a later stage.” Mr Thomas added that he had continued to use the threat of prosecution as a means of getting a new Code of Practice from the Press Complaints Commission. Mr Jay then got Mr Thomas to agree that this was something of an empty threat as prosecution was only a theoretical possibly Mr Thomas said it was not a dead possibility. Mr Jay responded that it was as dead as it could possibly be Mr Thomas. Mr Thomas disagreed.
Mr Jay said because by that stage Operation Glade had hit an enormous Iceberg in that all four of the accused were given a conditional discharge. A policy decision was taken by the Information Commissioner and his colleagues to discontinue with Operation Motorman. It was then not legally in the Public Interest for the Information Commissioner to continue. Mr Jay said that in fact the policy decision had previously been taken. Mr Thomas admitted only that this was a slight overstatement but wanted to underline that the result of the effective collapse of the police led prosecution meant they could not go ahead with any prosecutions. Mr Thomas said they were not primarily a prosecuting authority and their main function was to promote good practice and that in the next two to three years he concentrated on preventing a similar situation arising in the future. He emphasised the potential limited consequence of prosecution for as with Operation Glade the outcome was very perverse.
The Inquiry then asked if despite the circumstances his Office has considered the separate charge against those who had commissioned them to do so. If there was evidence the journalists had paid these people to access databases illegally they themselves would be breaking the law. “Did you investigate this?” In a further exchange Mr Thomas explained that the response did not mean they had investigated in the sense of the interviewing journalists but they had considered the issue given the evidence available to them through Operation Motorman.
There was then an interesting exchange regarding something which the Inquiry Counsel said would be looked at later viz that Mr Whitamore had in fact pleaded guilty to an offence under section 55 of the Data Protection act but not guilty to the corruption charge. (My understanding is that he paid someone else to get the information and then charged the press in such a way as to make a profit for himself).
Mr Thomas said that the Motorman provided hard evidence of procuring- prima facie. Mr Jay said you were advised that to proceed was not in the Public Interest, Why should it not be in the Public Interest?
Mr Thomas said it would have a waste of time and effort for his organisation but also if we were to go to the Courts, it would be back to the magistrates courts and bring prosecutions. We would have to decide which of the journalists to prosecute. Should we go for the whole lot or some? And the strong advice from our Counsel was that we should not and could not proceed with such prosecutions. It would be attracting severe criticism within the court system if we were to go any further. Mr Jay pointed out that this after the April 2005 meeting and the written advice of May 2005. Mr Thomas had been very concerned and questioned the advice.
Lord Justice Leveson then intervened to ask Mr Thomas. Did you know the Judge at the trial asked where the Journalists were? Mr Thomas admitted that he did not know this until a month ago when he read the transcript of the trial. Lord Leveson corrected Mr Thomas that it was not the transcript but a note made by a lawyer at the Information Commissioner’s office that the Judge was told that a number of journalists were interviewed in the context of an indictment with corruption conspiracy but the indictment was later amended. Mr Thomas said that he was aware that the case had been one of conspiracy but had been amended to the Data Protection charge. Mr Thomas passed the observation that their lawyer had gained the impression that the case had not been well made by the Crown Prosecution service.
Mr Jay explained that his understanding is that two of the accused pleased guilty to the original indictment but for the two who did not, the additional charges under the Data Protection Act were added and they pleased guilty to these. So it did involve part Data Protection but remained focussed on the corruption Indictment. I am still not clear what officially happened at the trial and presume this will be covered in the Module involving the Police.
I suggest it is important to weigh up the significance of what has been said today during this morning with the former Information Commissioner.
In terms of the process of what would be a criminal trial it is not proven that Mr Thomas instituted any policy or gave any directions that the Journalists should not be interviewed with a view to prosecution until several months after the seizure of the documentation and that he then based his approach on Counsel’s opinion. However he did admit on oath that his organisation had been negligent in not doing so although he attempted to argue there had been a third way to await the outcome of the Police and Crown Prosecution action against four individuals, none journalists.
He was later criticised for attempting to put the blame on Crown Prosecution Service for in effect making a mess of the Corruption Indictment against Whittamore and three others. Nor is there evidence that the Deputy Commissioner gave the order not to interview the Journalists and their editors. He was described as being disengaged and involved in European matters as well as having reached retirement age.
Mr Owens a former senior police officer of 30 years experience clearly thought the evidence was there for a prosecution and was emphatic that he was told not to interview the journalists, something we heard the Commission had done in an earlier instance we were to hear from a Counsel representing News International, Mr Davies, later in the afternoon session. Mr Davies reminded Mr Thomas that a junior investigator to Mr Owens had summoned a journalist to the office of the Commissioner to be interviewed under caution on 11th December 2002 that is less than a month after Mr Thomas took up his appointment. The interviewed concerned Lord Levy and Lord Ashcroft. The paper had replied that the journalist would not be interviewed under caution. Mr Davies was making the point that the only reason the letter to the journalist was sent because two powerful people had complained about the inquiries of the Journalist who was investigating something at the forefront of public interest.
Now as this matter was only raised at the end of the day and Mr Jay did not cross examine there was no opportunity for the Inquiry to pursue whether it was this experience which led someone in the management of the paper or their legal department to tell the Investigators not interview the journalists which if they had and brought prosecutions on those issues not covered by Operation Glade, then the course of events may not have become “perverse“ as Mr Thomas was to record.
While the Inquiry in this part is not determining factual disputes it seems unlikely to me that the report published on this Part will not make reference to the significance, for good or ill of the decision of the Information Commissioner(corporately) not to interview let alone bring prosecutions against journalists and where the most that could be done would be fines. If the Information Office had prosecuted directly the journalists would not have been sent to prison but a clear message would have been sent to them in a public way, stop or else.
Counsel for the Inquiry then referred to the gross figures which had been reported to Parliament, and not those which Mr Owens had suggested were more accurate. There had been 13343 transactions of 5025 were actively investigated and positive known to have constituted breaches of the Data Protection Act. It is my understanding of the evidence of Mr Owens is that a transaction may have covered information requests for more than one individual hence saying that the total number of requests covered by the transactions was over 17500. Mr Thomas gave a long answer in which he explained how the figures were collated and presented in general terms but was unable to be specific about the composition of the 5000 breaches of the DPA.
Counsel for the Inquiry said that if you just added the commissions for Friends and Family requests and for those with the Police National Computer they appeared to total hundreds and not thousands. Mr Thomas said that the 6330 list included occupant searches thought to come from the telephone companies and are likely breaches of the DPA but the nature of these was not fully understood and are therefore only considered probable illicit transactions. Mr Thomas explained that by the time this information was presented there was a new team of investigators who with the in house team of lawyers had divided the information into three categories Definite, Probable and outside the DPA. Mr Thomas also explained that his office was not saying that every one of the transactions was commissioned by a journalist.
Journalists were significant but not the only customers of information obtained illegally in terms of the DPA. A large number of journalists were buying a large amount of information which could only have been obtained by breaching the DPA. The Office is saying that Journalists were driving the market.
Their only defence was one of Public Interest and Whittamore did not plead public interest at his trial. Mr Thomas added that it would have been possible for journalists to have argued that they did not know the information was obtained in breach of the Act and to establish guilt each case would have to have been examined individually and tested in court.
Lord Chief Justice Leveson said that if someone asked for a Family and Friends list the Journalist could not plead not knowing and Mr Thomas agreed but made the point that only a court could confirm the judgement, or otherwise. Lord Leveson added that he understood the point and Mr Thomas added” And that there may have been an offence in each particular case.”
In support for the issue of illegality Mr Thomas reminded that £500 was being charged for a Criminal record search £150-£200 for the DVLA check £750 for telephone call records and £65 and £75 for an Ex Directory number. My Jay also raised the point that if someone tried to locate someone on foot it would cost more than the £17.50 occupancy search via a breach of the DPA. The implication was it was cheaper to break the law than do proper journalist investigation work.
Mr Thomas said that newspaper organisations were estimated to have paid between £300000 and £547000 for the required information. Mr Thomas explained that because of an input error they had had to reduced the number of Sunday Times transactions to four and increase those of the News of the World to 228. They had apologised at the time change the published figures.
Mr Thomas went on to point out that no one had questioned the figures or requested a breakdown at the time and that in conversations it was admitted “ You’ve found people out, you’ve brought to the surface that which people either knew or had a broad awareness of what was going on.” Lord Leveson asked if he had conversations directly with Editors and when he said no Lord Leveson intervened to pint out that he had met Paul Dacre and Les Hinton of the Code Committee for the PCC. Mr Thomas said he thought they were proprietors which brought laughter. Lord Justice Leveson said I don’t think so. Mr Dacre might be pleased to be the proprietor of Associated Newspapers but I don’t think he is.
It was at this point that the decision was taken to proceed before the lunch break with the Information Commissioners dealing with the Press Complaints Commission. This is also an appropriate point to end this report.
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