(10.00 am)
LORD JUSTICE LEVESON
Yes, Mr Jay.
MR JAY
May it please you, sir, I'm going to recall Mr Owens. What has been organised is that the core participants will have relevant evidence on their screens, which was provided to them under usual conditions of confidentiality on Friday. However, members of the public will not be able to see what are on our screens, and indeed the room has been cleared of all members of public and the press they're in the marquee save for Mr Owens and Mr Aldhouse, because we've taken the view that
LORD JUSTICE LEVESON
Entirely. Could I just say that I intend to promulgate in writing the judgment that I gave on Friday. Revising it over the weekend, it occurred to me that I had not made it clear that copying details would not be appropriate and that the idea at the end of the Inquiry is that everything should be returned to the Inquiry.
MR JAY
Yes.
LORD JUSTICE LEVESON
But I will promulgate that revised ruling during the course, I hope, of today.
MR JAY
So may I therefore recall Mr Alec Owens, please.
LORD JUSTICE LEVESON
Thank you. MR ALEXANDER OWENS (on former oath) Questions from MR JAY
MR JAY
You gave an affirmation or oath on Friday. You're still under that.
A. Yes.
Q. I'm going to ask for the various files by way of icons, if they could be put up on the screen, please. TECHNICIAN: You should have them, Mr Jay.
MR JAY
They're not on mine. Is there a button we need to press?
LORD JUSTICE LEVESON
Have you turned the screen on?
MR JAY
Have they come up on your screen?
A. No.
MR JAY
Are they on anybody's screens?
MULTIPLE SPEAKERS
Yes.
LORD JUSTICE LEVESON
And mine. Have you turned it on?
MR JAY
Yes.
LORD JUSTICE LEVESON
The possibility is that you are governed by the same
MR JAY
Ah, thank you.
LORD JUSTICE LEVESON
I'm very grateful. Thank you.
MR JAY
The next thing is whether I can operate it from my mouse, which I think I can.
A. I'm still blank, sir.
MR JAY
We're not okay.
A. No, sir.
MR JAY
Success?
A. Nothing.
LORD JUSTICE LEVESON
Let's get somebody with technical expertise to sort it out. I'll rise for a moment while that happens. Sitting here probably doesn't help anybody. So let's just get out and get somebody to sort it out. Thank you. (10.06 am) (A short break) (10.11 am)
LORD JUSTICE LEVESON
Very good.
MR JAY
Mr Owens
LORD JUSTICE LEVESON
Can Mr Aldhouse see a screen? Well
MR JAY
Mr Owens, when you gave evidence on Wednesday, you explained that original data in hard copy form seized following a search on 8 March 2003 was, over the course of time, put by you and your team onto various Excel spreadsheets.
A. Yes.
Q. Are we looking now at about 12 icons which constitute those spreadsheets and similar materials?
A. Yes.
Q. Can we just identify the nature of the material we are looking at? The icons entitled Green Book, Red Book, Blue Book and Yellow Book, are they the Excel spreadsheets of data extracted from different coloured notebooks which were seized?
A. Yes.
Q. And these are the notebooks which I now have in front of me?
A. Yes.
Q. If you look then at the files described compendiously as RP9, RP15, et cetera, are those the invoices sent by Mr Whittamore, trading as JJ Services, to various newspapers?
A. Part of those are, yes.
Q. And then the JJ Services invoices 1 and 2 spreadsheets, are they the invoices or remittances paid by the newspapers to Mr Whittamore, trading as JJ Services?
A. They are, sir, yes.
Q. Then to open one of the books at random maybe the Blue Book. Let's hope that
A. Just double click on it.
Q. What I'm going to do is just identify the columns without asking you to comment further. I'm not going to ask you to name any newspapers since I'm just doing this for illustrative purposes. Column A is the newspaper group?
A. It is.
Q. B is the newspaper within the group. C and D are the journalist's name, first name and last name.
A. Yes.
Q. Column E is the service requested. You told us quite a lot about this last time, Mr Owens, but we can see there various types of service. There's the area search, where you're identifying where someone lives within a particular area
A. That's correct, yes.
Q. Then the occupancy search. You're identifying who lives at a particular address; is that right?
A. Like a voter search, yes.
Q. The vehicle registration well, that one is self-explanatory. The "XD", of course, is ex-directory. Mobile conversion is deriving an address from a mobile number?
A. Yes.
Q. Conversion, or "conv", is an address from a landline?
A. That's correct.
Q. "F and F" is friends and family and "DIR" we don't see any of those on this screen but I've seen some is a directors search?
A. That's correct, sir, yes.
Q. If we scroll further to the right, you see the information getter's name, which is H and I.
A. Yes.
Q. I think we can name the first of these because I don't think it's his real name. Taff Jones. Do you see that?
A. Yes.
Q. You mentioned him on Wednesday. Is he the blagger that Mr Whittamore used in relation to British Telecommunications?
A. He was very professional obtaining their telephone numbers from the various telephone companies.
Q. Was that limited to BT?
A. No, it was across the board, many companies.
Q. Okay. I'll ask you a bit more about him later on?
A. If it assists you, sir, that next name is actually Data Research Limited, which has been named.
Q. Okay. Now, the subject names I'm going to be very careful with these because some or all of these are confidential. The subject, of course, is the target, isn't it?
A. It is, yes, sir.
Q. And to see how these play through I'm having difficulty getting it to scroll to the right, but I think I'm going to manage. If you look at row 15, that's a vehicle registration search?
A. It is, yes.
Q. You get the fruits of the search f that is the right way of describing it, under O to
Q.
A. Yes, that would be the VRM, the colour and the make.
Q. I'm having difficulty getting this to work. I think it's fallen to sleep. Just hold on.
A. If I can suggest, sir, if you just click onto one of the names and then use the arrows at the bottom to go up and down and across, it makes it a lot easier.
Q. It's working now. You can see the details: the registration mark and the colour of the vehicle. It's probably all the information you can obtain. There are also various comments, in particular AA.
A. You've gone past that.
Q. I know I have.
A. Yes.
Q. Where are these comments derived from?
A. They were from the original books.
Q. From the original books?
A. Yes.
Q. Thank you. I'm going to alight on three entries in the Blue Book. First of all, row 693. Just bear with me, Mr Owens. If I use the right-hand scrolling function, I will lose control. This is just for purposes of illustration. You can see there this was a particular search. 693 is a vehicle registration search?
A. It is, yes.
Q. There's also a phone number there. If one goes to the book itself it's not so clear, really, from the document, but the corresponding entry in the book relates to a telephone number in Glasgow and then it says: "Specific calls from another phone number." The area code is 01382. I'm not going to read out the whole number. The request was for specific calls from that phone number between 6 and 7 in the evening, the date requested is not clear and the price was ?300 to ?400. Do you know how you would obtain that sort of information?
A. I can only guess and I think it's an educated guess they've actually got the whole of the subscriber's telephone bill, the subscriber's list, what calls they've made during that evening or during those times, and that would only be possible from the phone company.
Q. That's the inference
A. Yes, that's the way I would look at it.
Q. I'm looking now at row 711. We can see the surname under
A. 71 oh, yes.
Q. I'm not going to ask you to tell us what it is unless I'm told that I can refer to it.
A. Yes, that's fine.
Q. It's for Mr Sherborne to tell me whether he as an objection. No? Okay, I'm not going to refer to the name. You can see the first name is under L. Do you see that?
A. Yes.
Q. No need to read them out. Can you help us a little bit more about the request. What was being sought here?
A. Right. Certainly the orange-coloured one would be an earlier search trying to find out where that named person or those named people which area they lived in.
Q. Yes.
A. The blue ones underneath, they would relate to the actual address, voter's check of the same people.
Q. Thank you. So that's the coding you're using on this
A. That's the colour-coding as the it was done.
Q. Okay.
A. If we go down, I think, just below that, you'll see ex-directory numbers for the two of those.
Q. There are two ex-directory numbers as well, are there?
A. Just underneath them, the blue coding.
Q. Let's see if we can find those.
A. There they are. They're the yellow ones. That's the ex-directory numbers for the addresses as listed above.
Q. We're looking at
A. There's yeah.
Q. It's the yellow, is it?
A. Yes, if you just go further along, you'll see a name there at the beginning. That's the no, the other way.
Q. Okay, my apologies.
A. That's the name of another private detective that actually obtained them, and they are the two ex-directory numbers for those addresses.
Q. Thank you very much. If we go finally in this book to row 1014, we will see that it's a criminal record check. I'm not going to spend further time on it.
LORD JUSTICE LEVESON
Just try once more, Mr Jay.
MR JAY
I'm getting slightly frustrated with it.
LORD JUSTICE LEVESON
I understand that. Try and move up the bar.
MR JAY
All right.
LORD JUSTICE LEVESON
There you are. You've done it.
MR JAY
Right.
A. Yes.
Q. We'll have to scroll further along, won't we? What is the green code?
A. The green code is CRO, criminal records check.
Q. We will see that in the narrative. I saw that, of course, over the weekend. We can see that in column E. And the targets
A. Are named, first names and surname.
Q. Yes, and it cost ?500?
A. On that particular line, it's got "successful", ?500.
Q. Yes. I'm going to close this file and go to the Green Book. The methodology is exactly the same, isn't it, Mr Owens?
A. Yes.
Q. I want to find row 880. I'll be told whether there's a difficulty with the name here. There may not be on this occasion. Maybe it would be quicker if the technician were to do this for me. I want to scroll to the left. Exactly, thank you very much. Back to the left, please. That's lovely. Right, if you stop there. It's one of the witnesses who gave evidence. Mr Sherborne will tell us whether there's a problem, but what this shows is an occupancy search and two ex-directory searches.
A. Can I just ask, whatever the technician's done, he's altered the colour so I can only see the first entry.
Q. It should be a light blue.
A. Yes, that's an occupancy search.
Q. Also I think there are two ex-directory searches in the yellow?
A. Yes.
Q. At 881 and 882.
A. Yes.
Q. Then there's an associated individual
A. Yes.
Q. at 803.
A. That's an occupancy search followed by ex-directory search, telephone number.
Q. Thank you. That cross-references with some evidence that we heard. But to be clear, the ex-directory searches were for landlines, not mobile phones?
A. You'd have to go back and let me have a look.
Q. We saw there ex-directory
A. That's all ex-directory (inaudible), but if you go back to
Q. So we have to go all the way to the left to see the phone numbers?
A. I'll tell you whether it's a landline or a mobile. Yes, they're landlines.
Q. We can see the part of the country. Okay, now the Yellow Book. Towards the end of the book, we have members of our national team. Not necessary to say which but it will be fairly obvious. 2002, a whole load of ex-directory searches. There's one interesting line at 5798, again, without identifying the paper. I don't know whether you can help me to get to row 5798.
A. That's it.
Q. If we go to the far right, column AA hold on. 5798. The request is: "Phone bill for June 2001." And the price was ?800?
A. That's what it's got on there, yes.
Q. But without knowing more about what the purpose was behind this request, we can't take it further, can we?
A. The only thing I can say about that one is Whittamore did that himself, because that is a blag, as we put it, wherever it's white. I think could I ask you to go to the far end? There might be some reference where Whittamore's actually phoned up the telephone company himself and got it. If you could go right to the end.
LORD JUSTICE LEVESON
The far right or far left?
A. The far right as you're looking at the screen and just go back a bit. Little bit more.
MR JAY
There's the information-getter column, isn't there, which we saw. I think it's a bit further to the left.
A. If it's white, Whittamore's done it himself, but he hasn't he normally puts down "such-and-such a blag" along the line, but he hasn't on that one.
Q. Okay. As I said, we can't begin to take that further
A. No.
Q. without knowing more about what the purpose was behind it. Can we look, please, at row 6593. Thank you. This starts off as being a mobile conversion search and an occupancy search.
A. Can you go right over to the left, because you go up to row F here. I need to go to row C.
Q. Okay, so we can scroll
A. That's it.
Q. We take 6593 and 65949 together. 6593 is the mobile conversion?
A. Yes.
Q. And 6594 is the occupancy, but there's a mobile number there?
A. Yes.
Q. If one looks at the entry in the Yellow Book itself, it reads "Mob Conv", then a telephone number, then underneath that "Occ". Then it says: "Cancelled by charged." An address is given in brackets. Do you know what "cancelled but charged" means or why it might have been included here?
A. No.
Q. If we can go a little bit further down, however, to row 6603, where we have a number of
A. Family and friends.
Q. Is that the magenta or a violet?
A. Yeah. That's the colour-coding for family and friends.
Q. It's clear from the original book that there was a landline number. It then says: "F F on T-P." Presumably that's telephone?
A. Telephone, yes.
Q. Then you can see ten family and friends' numbers
A. Can you scroll up a bit, please?
Q. which we with see under column G.
A. I can only see four. You'll have to scroll up a little bit more. No, scroll up, please. That's it. Keep going. That's it.
Q. We can see them all there. The mobile number under F is the mobile number which had already been obtained?
A. In fact, you can still see it above there, where it's been obtained, and then it's obviously appeared on the list of family and friends of whoever that number would be, the main number belongs to.
Q. That's correct, and there's also a 0041 number, which may be Switzerland. It doesn't really matter. To the right, it says: "Charge ?500." And then: "?100 for Taff agreed." It's unclear for that whether the ?500 is for all ten numbers or for each number, but it may well be for all ten numbers.
A. It could be. We can't be
LORD JUSTICE LEVESON
A name and then a price?
MR JAY
That's right. You can't help us under column AB, above the because the inference you drew at the time, if you look at columns AA and AB, is that it was ?500 for each family and friend.
A. That's what it looked like when it came out on this disk, but actually it's just one entry, ?500, and it's "?100 agreed for Taff", so we can't say whether it's ?500 or ?5,000. 10 at ?500, I mean.
Q. Although we do know that British telecommunications allow you 10 family and friends' numbers. It's been their policy for as long as I can remember.
A. Yes.
Q. Under column AB, we see a 20 and a 22. We don't know what those are. They might or might not be the ages of the individuals concerned. As it happens, if they are, the ages are not quite right, according to my research. That's probably as far as we could take that one. Sorry, I've missed out one point. If we could go back to the yellow and row 146 to 156. 146, sorry. Go right up. Thank you. 146 concerns a newspaper which isn't in this jurisdiction. There's certainly one CRO search there, isn't there?
A. Yes.
Q. Then there's an area search and occupancy search?
A. Yes.
Q. But if you look further down at 152 to 153, there's a mobile conversion?
A. Yes.
Q. And then between 156 and 165 there are a series of searches?
A. Yes.
Q. Ex-directories, occupancies?
A. All in the same name, yes.
Q. And all in the same name. Okay. We'll move now to the Red Book. Go straight to row 1281. The reason why I'm doing this is it cross-references with evidence we have heard. Nearly there. Right. Can we scroll to the right, please? We see some names under N.
A. Yes.
Q. Is there a problem mentioning these? I'm told there is no problem mentioning these. The surnames or last names are Grant and Hurley.
A. Correct.
Q. I have the original open in front of me. There was an area search for both Grant and Hurley?
A. Yes.
Q. South of the river, if I can put it in those terms. Then there's a vehicle registration search. Could you tell us a little bit about that because I know you investigated that?
A. Yes. Basically we went to see Mr Grant at his offices because a number a VRM, vehicle registration mark, comes up against his name. As it turned out, he couldn't recall it and possibly thought he may have been seen in it may be a friend's car he's been seen in or was talking to somebody standing by that car, but he personally couldn't remember the car itself.
Q. Yes, fair enough. Were there any telephone numbers, including mobile numbers, relating to Mr Grant?
A. I I'd have to check the books but I don't think so. There may have been.
Q. There are none I've been able to see.
A. Okay.
Q. To close this file and move now to RP9 and RP15. These are the invoices out to the newspapers?
A. Yes, yes.
Q. They're put together in a fairly similar way, if not quite the same way, as
A. If you could scroll to the left so I can thank you.
Q. the books themselves.
A. Right, yes.
Q. We can see the methodology. The newspapers, the person who is to be invoiced within the newspaper, the service requested well, H is the date of the work, which we haven't covered before. The service requested is I. "Confidential enquiries", we see. Could you help us a bit about those?
A. Not really. They were that's what they were, confidential enquiries. That's all we we got some hints off the comments mark in some of them. But no, in the main it was just "confidential enquiries".
LORD JUSTICE LEVESON
That's the words written in the book? "Confidential enquiries"?
A. Yes. Obviously we'd he wouldn't tell us and we never got an opportunity to ask any members of the press what they might have been.
MR JAY
If one goes to column AE, the "Additional comments", one can see this in relation to some confidential enquiries quite a lot further down.
A. I think you've gone past it.
Q. I thought it was 1813. We see a series of confidential those are the 49
A. I think if you go back to where you were, sir, the confidential enquiries.
Q. I think my note may be incorrect. It was quite a lot higher up, wasn't it, Mr Owens? Let me keep column AE in sight.
A. Okay.
Q. Right. And just scroll up.
A. Where you are at the moment is actually referring to all the ex-directory numbers that were obtained. There we go. That's it.
Q. These are some annotations. We see reference to some blags.
A. Yes, where his company (inaudible) individuals. But most of the comments are contained in invoices, too. There's an awful lot of references to comments there which you could possibly associate with a story that was in the press.
Q. We get some idea of the costs of each service from column AG.
A. Yes.
Q. See if we can summarise this, since I've looked at this carefully. The price for an occupancy search appears to be ?17.50
A. That's correct, yes.
Q. in general. The price of an area search is ?30?
A. Yes.
Q. The price for an ex-directory search varies a bit, but it's around ?75?
A. That's correct.
Q. Confidential enquiries usually have a special price?
A. They can be anything.
Q. The mobile conversion is ?75?
A. Correct.
Q. The vehicle registration search costs anything in between ?150 to ?200.
A. It went up. It was ?150 to Whittamore. It went up to 200 when, shall we say, the DVLA source was neutralised, because somebody else was doing it then.
Q. Thank you. From row 1070, we have a series of searches which are all described as "occupancy" under column I, but were charged out at ?40.
A. Yes, this was
Q. You heard me say that the occupancy was ?17.50. Here we are. We can see them now. What do you think or what do you know those to be?
A. I know they're all ex-directory numbers. They were bundles of what I'd call documents he was going to hand in to his accountant for tax purposes, so he couldn't exactly put "XD" next to each one, so he just put "occupancy" there. If you go right to the other end, you'll see it's our friend Taff Jones, the expert in phone work, getting phone numbers, that he was paying it to, but they were more or less tax forms that he was
Q. Okay. Looks as if one's getting a discount for quantity because it's down from the ?75.
A. No, that's what he paid to Taff.
Q. Pardon me.
A. Then he would charge the press ?75.
Q. Thank you, Mr Owens.
A. So he'd make ?35 on every transaction.
Q. Now the JJ Services invoice number 2 there's a mass of data on this. I'd quite like to scroll so I can see the columns. Here we go. It's fairly similar, isn't it, Mr Owens
A. Yes, very similar.
Q. to the previous
A. When you were saying before about comments, this particular document has most of the comments that you would associate with a newspaper story.
Q. Yes. Let's see whether that is borne out. I think it will be. I imagine I might have noted my papers in the wrong place. Let's have a look at row 1813 and just see whether there are any interesting comments there. Yes, we are seeing some, I think. There's quite an interesting one at 1816.
A. B&B Sex Party.
Q. Just gives us a flavour. Of course, we have no idea whether any of this ever found its way into stories. So a veritable treasure trove of information in all these files. What I've done over the weekend, Mr Owens, is check the electronic Excel files for the green, red, blue and yellow books respectively against the originals of the books, and the spreadsheets are borne out by it would be wrong to say an analysis of every entry in the books, but certainly dipping into numerous entries.
A. Yes, sir.
Q. What I haven't been able to do is cross-reference entirely or really significantly the audit trail through from, say, the Blue Book back into the RP19 and RP15 files and then into the JJ invoices 1 and 2 files.
A. We managed to do that, but over much more than a weekend.
Q. Yes, okay. Thank you, Mr Owens. I'm going to ask you now, please, if you can bring to hand a file which contains various legal advice.
LORD JUSTICE LEVESON
Has that concluded the work in relation to this schedule?
MR JAY
It does.
LORD JUSTICE LEVESON
Is there any reason why we shouldn't now open up the proceedings so that those who are not in this room can see any document that is exhibited?
MR JAY
There is no reason unless a core participant wishes matters to be explored as a result of the evidence I've adduced from Mr Owens. I've received no notification that there are
LORD JUSTICE LEVESON
Well, does anybody want to raise any question which will require us to look again at these books which contain extremely confidential information?
MR JAY
Well, the question I'm asked to put can be posed when the public is back in this room.
LORD JUSTICE LEVESON
All right.
MR JAY
I think we can therefore close these files, please, and perhaps pause for a minute or two to see whether there are people waiting outside.
LORD JUSTICE LEVESON
Yes. I'm keen to admit the public to this room and to open up the document screens to the other room as soon as possible. Is that going to take a couple of minutes? TECHNICIAN: It will, sir. We'll have to have technicians to do it.
LORD JUSTICE LEVESON
Right. I think we'll do that so that we've kept people out of the full detail for as limited a period of time as possible. I'll rise a moment while that is done. Thank you. (10.51 am) (A short break) (10.56 am)
LORD JUSTICE LEVESON
Mr Jay, before you carry on, it perhaps is worthwhile just summarising that which you've just done, which for those who didn't have access to the data on screen must have been extremely difficult to follow. It's abundantly clear, looking at the electronic records, which you've checked against the actual documents, that Mr Whittamore had collected together a vast amount of personal data. The documents identify the names of titles and specific journalists at the titles apparently or inferentially making the request. It identifies the names of people from a wide range of public life and in the public eye, and provides addresses, telephone numbers, mobile telephone numbers and charging details for that information. It's not necessary to go into the identity of the individuals, save and except as you did in relation to Mr Grant, because of course a question was asked of him which created some doubt as to whether he had been shown information from this particular investigation it's clear that he was but it's not necessary otherwise to identify titles or names and certainly not necessary to identify the persons who were the targets of enquiry. In relation to some of them, it is absolutely right that there may well be a public interest justification in the enquiry. In relation to others, however, it is difficult, if not impossible, to see what public interest justification there could be.
MR JAY
Thank you, sir.
LORD JUSTICE LEVESON
Do you dissent from that summary?
MR JAY
No.
LORD JUSTICE LEVESON
Thank you.
MR JAY
Mr Owens, I'm asked to pose this question to you: do you know how far back in time the books go?
A. I think the earliest entry we found in the documents would be about 1997, but it's my guessing that the books stretch from about the end of 2000 to the start of 2003.
Q. Mr Owens, do you recall going to see counsel in Birmingham on 3 October
A. I did, yes. Down in Birmingham, yes.
Q. We have an attendance note of that conference. The last five numbers are 48710.
A. I'm sorry, could you tell me what the tab is?
Q. It might be tab 2 in front of you, but it's going to be put on the screen and you'll see it.
A. Oh, yes, okay. Yes, that's correct.
Q. I'm going to read out salient parts. It's a conference to discuss Operation Motorman and the instructions to counsel which have been sent. Can we look at Taff Jones, which is at the very bottom: "With regard to Taff Jones, he obtains BT ex-directory definitely numbers." Is that information you obtained, Mr Owens?
A. Yes. That was found amongst the papers and later confirmed by Taff Jones himself.
Q. Did you interview him?
A. Yes.
Q. "He explained that Taff Jones is a biker and an ex-soldier. The method he uses is by ringing from mobile phone numbers, which he changes every three months or so. There is one phone number with telephone billing contacting Whittamore and billing in reverse, Whittamore to Jones." So taking that in stages, who is he ringing from his mobile phone numbers?
A. He's using the he normally BT or whichever phone company, purporting to be an engineer and getting the information he wants. And then, after he's got the information, he would ring Whittamore and pass him the details that he's asked for.
Q. Thank you?
A. So it's between the telephone companies and Whittamore, those particular phones.
Q. If we go to the next page, which is 48711, we'll learn some more at the top of the page: "It is clear, however, that he uses EIN numbers (an EIN number is a number given to a BT employee and has an 8 as the prefix) So it's a form of password; is that right?
A. Yes.
Q. in order to pretend to be an engineer to provide this EIN number on which there are no checks made."
A. That's correct, yes.
Q. Again, did you deduce that from the papers you seized
A. Correct, yes.
Q. and interviewing Mr Jones?
A. Yes, sir.
Q. Then it carries on: "Data Research Limited were the subject of the search warrant executed by Devon and Cornwall Police on which [you] attended on behalf of the Information Commissioner. As part of the documentation to which there is an assertion the privilege, another document found was a blaggers manual."
A. Yes.
Q. "The use of EIN numbers, a method of obtaining information links, was in it. Currently there is no evidence to link Jones to particular mobile phones, although Roy is able to say that he has phoned him on one of the numbers."
A. Yes, that's correct.
Q. We can look then under the heading "Gunning". We can see further information in relation to area searches, but let's look at what counsel advised under his name with regard to the prosecution of the press. This is what he said: "Although there is evidence to support a prosecution, a prosecution would not be considered favourable because of the financial aspect."
A. Yes.
Q. Put in other terms, what was he saying there?
A. Basically said it would be too expensive.
Q. Yes. Then counsel asked if there was any way in which friends and family details could be lawfully obtained and there is not?
A. No.
Q. Had you carried out any enquiries to ascertain that?
A. Well, obviously we'd spoken to BT and asked them and they've said, "Not unless you know the people or you're one of the friends or family who might know them", but trying to get that sort of information had to be illegal.
Q. Yes. Did you make similar enquiries of DVLA at Swansea?
A. Well, yes, obviously we dealt with Swansea quite a bit. But there are legal ways of getting numbers or person the owner's details from Swansea, but that's conditional. It's you write in, pay a fee, but it has to be on one of their special reasons.
Q. Yes. We've done some research on that and can submit a note together with policy advice from Swansea, which supports what you're saying.
A. Yes.
LORD JUSTICE LEVESON
In other words, if you've had an accident with car that's driven off and you've got the registration number, then that would be a reason to get
A. I've done it myself when my daughter had an accident. Well, a car hit her when she was on the a nightclub car park, and the police couldn't help because it wasn't on the road. So that would be a legitimate request.
MR JAY
Yes. That's clear. I'm going to ask you, please, to look at counsel's written advice, which is under tab 4, which privilege has been waived by the ICO. It bears the number 48716.
A. Yes.
Q. This is advice that counsel gave, I think, on 22 December 2003, which was now nine months after the research, wasn't it, Mr Owens?
A. December would be nine months, yes.
LORD JUSTICE LEVESON
So just let's understand this. This is a barrister who has been instructed by solicitors acting for the Information Commissioner to advise on the material that you've obtained in relation to a potential prosecution?
A. Yes, sir.
LORD JUSTICE LEVESON
So his opinion is his opinion and there's a value for that purpose but none other. It's to help the Information Commissioner make a decision?
A. That's it, yes.
LORD JUSTICE LEVESON
Right.
MR JAY
In paragraphs 2 to 4 of the advice, if I can summarise it, he was saying effectively there's enough evidence to allege a conspiracy to contravene Section 55 of the Data Protection Act and the parties to the conspiracy, at least at that stage, were going to be Messrs Whittamore and Dewes, although we know subsequently that four individuals were on the charge or on the indictment relating to that conspiracy. I really want to turn to the second page, under the heading "Journalists". This is 48717. This is what counsel says: "Having regard to the sustained and serious nature of the journalistic involvement in the overall picture, there can be little doubt that many, perhaps all, of the journalists involved have committed offences."
A. Yes.
Q. I don't think he should be interpreted as saying that in relation to each and every request, each and every journalist will necessarily have committed an offence. He's not going that far?
A. No.
Q. Then he says and it's true it's only counsel's inference from his reading of the papers: "The inference, overwhelming, it seems to me, is that several editors must have been well aware of what their staff were up to and therefore party to it." Really, I'm introducing this for the next paragraph: "I understand that policy considerations [it should say] have led to their view [it should be 'the view'] that enforcement of some sort rather than prosecution is the way forward in respect of the journalists/newspapers."
A. That's what it says, yes.
Q. That sentence may well be consistent with what you were telling us on Wednesday, Mr Owens, but apart from the meeting you say took place in mid-March 2003, is there any further light you can throw on that sentence?
A. The meeting which took place in mid-March?
Q. This is the meeting which you told us took place involving Mr Thomas and Mr Aldhouse. Do you remember that? A week or so after the raid, which was on 8 March.
A. Oh yes. Nothing, really, apart from basically what I've already said, the fact that I it was my suggestion that we go up and down, right the way to the top and right the way to the bottom, and the evidence was there, when Mr Aldhouse said made those comments that he did, that they're too big for us to take on.
Q. Whatever conclusions can be drawn from that sentence, we can draw them. What counsel goes on to say: "I understand and sympathise with that approach. This is, I believe, the first occasion upon which the scale of the problem has come to light and it may not be unreasonable to give the Press Complaints Commission the chance to put their house in order."
A. That's what he's put. That's Mr Thorogood, I think.
Q. We'll see whether that's reflected on Friday by documentation which has already been made available. Then counsel says: "However, the evidence of involvement [it should read 'is significant'] and often unpleasant offending is, in my opinion, clear enough in very many cases. You would be appropriate to caution identified journalists and their editors. I doubt whether a formal caution would be accepted as such but informal cautioning by letter with a suitable selection of (heavily edited) evidence attached should achieve the aim." Of course, by that point no journalist had been interviewed.
A. No, this if you're talking about this being in December, we were stopped from interviewing them in April/early May at the very latest.
Q. Yes then his final shot: "Those defending in the prosecution might seek to make capital from the fact that the journalists are not being prosecuted. The judge might also comment on the basis that the journalists are the ones (it seems) who created the demand for this offending. With this in mind, it is a sensible precaution to equip me at some point before trial with the detail of the reasoning not to prosecute. I may need to explain or even defend the decision to the judge."
A. That's what it says there, yes.
Q. Yes. Okay, I'm not going to comment further on that. It speaks for itself. Mr Owens, is there anything else you would like to say? You have expanded on the evidence you've given on Wednesday, we've cross-referenced some of that evidence with documents which are available, we've seen the underlying material now, and can draw the appropriate conclusions. Is there anything else
A. No, I think everything's been covered, sir.
MR JAY
Thank you very much.
LORD JUSTICE LEVESON
Thank you very much for coming back, Mr Owens.
A. Thank you.
MR JAY
I'm moving on now to Mr Aldhouse.
LORD LEVESON
Very good.
A. Do you want me to move these?
LORD JUSTICE LEVESON
Probably just leave them there and we'll see.
MR JAY
Mr Aldhouse, if I could invite you to come forward, please. MR FRANCIS GEORGE BODEN ALDHOUSE (sworn) Questions from MR JAY
MR JAY
Mr Aldhouse, I invite you to make yourself comfortable and then to provide us with your full name.
A. I'm Francis George Boden Aldhouse.
Q. You've provided us, Mr Aldhouse, with a short witness statement which is dated 16 November this year. Is that right?
A. That's right.
Q. You've signed the statement and verified its truth. Is this your evidence?
A. Yes, it is.
Q. Can I ask you, please, about yourself, first of all, Mr Aldhouse. You are a solicitor by training; is that correct?
A. That's right.
Q. And you, in December 1984, became the deputy to the first data protection registrar; is that right?
A. That's right.
Q. Is the data protection registrar more or less the forerunner or the then incarnation of the Information Commissioner under the 1984 Act?
A. The then incarnation I suppose is the right way of putting it because it's the same office. They just changed the name by statute.
Q. Right, and what happened was the Data Protection Act 1998 came into force on 1 March 2002 to bring domestic law in line with the European directive and at that point you became the deputy is this correct to the Information Commissioner?
A. That's right.
Q. And you stayed as such until your retirement is this correct on 13 January 2006?
A. That's correct.
Q. Can I ask you a general question, please, about the criminal law before the Data Protection Act 1998 comes into force. We know what Section 55 says, but is this right, that the first criminal offence was introduced in 1994 by way of amendment into the Data Protection Act 1984?
A. Yes, that's correct. There were other sort of administrative criminal offences, but so far as this sort of activity is concerned, it was the 1994 Act that made the difference.
Q. Can I ask you, please, a question on Section 55 of the Data Protection Act 1998. I don't know whether you have that to hand, but you probably know it off by heart.
A. Not by heart.
Q. This creates the offence of unlawfully obtaining a sector of personal data. Under subsection 1: "A person must not knowingly or recklessly There are two limbs there and "recklessly" will be a subjective test of any criminal statute, won't it, Mr Aldhouse? without the consent of the "
LORD JUSTICE LEVESON
I think there's some objectively there as well.
MR JAY
Yes. One would draw inferences, most definitely. I'm just interested about (a) and (b), because there may be a difference of view about this. Under subparagraph (a): obtain or disclose data or the information contained in personal data, or (b) procure the disclosure to another person of the information contained in personal data." Now, if we're looking at the position of a journalist or it can be an insurance company or anybody else does that fall within subparagraph (a), subparagraph (b) or both?
A. I'm if you'll forgive me, my voice is going. I think I'm inclined to the view that it could fall within both. I think the fact that you use an intermediary to obtain the information doesn't mean that you have not yourself obtained it.
Q. Yes.
A. So and similarly, it could be said that you have procured the disclosure. I think it could be an offence under either A or B.
Q. On reflection, if it helps, that's also my view. I might have said indeed, I did say in opening the case that a journalist would only fall within Section 55(1)(b). Thinking about it over the weekend, I would respectfully agree with you. It probably falls within both. We know from other evidence that on 8 March 2003, admittedly some time ago, there was the initial execution of a search warrant for a search which led to Operation Motorman. Did you get to learn about it at the time, Mr Aldhouse?
A. I cannot recall when I first heard about Motorman. You'll forgive me, but it's eight and a half years ago and memory fades and of course there were other things going on. No, I couldn't tell you exactly when I first heard about the operation.
Q. In terms of your responsibilities at that time, Mr Aldhouse, was it part of your role as the deputy to provide direction to the head of investigations?
A. Yes. What had happened was the previous head of operations and second deputy had retired in 2001, and the head of investigations then reported to me. I don't think it would be right to say that I directed investigations in any way, but I supervised the person who ran the investigations department.
Q. We heard who that person was on Wednesday, but could you confirm her identity?
A. Yes. At the time we're talking about, it was Jean Lockett.
Q. Yes. Were you head of operations?
A. No. No. Indeed, I think, as I say in my statement, the focus of my work, certainly by that stage and in continuing years, was on policy work.
Q. The evidence Mr Owens gave us on Wednesday is that a few days after the search so we are now in mid-March of 2003 there was an informal meeting involving you and Mr Thomas where Mr Owens gave an explanation of what he found. First of all, do you have any recollection of any such meeting?
A. I cannot recall such a meeting. I wondered whether this was just because, you know, time passes and my memory had faded, so I took the opportunity of consulting my old or the print-outs from my old electronic diary, which I've kept, and I cannot find any such meeting in March 2003, or indeed in April.
Q. Is it your evidence that you simply cannot remember whether there was such a meeting or is it your evidence that you are fairly sure that there wasn't such a meeting?
A. I think my evidence is that if there was a meeting, it would have been a very casual one and a very short one, and certainly not scope for a full briefing. If it had been a carefully arranged, lengthy meeting, it would have been recorded. I don't recall any such meeting and I have no record of it.
Q. So that I put to you what Mr Owens' version is and we heard his evidence on Wednesday his clear evidence to the Inquiry was that it was you, Mr Thomas and he. He had carried out a cursory analysis of the material and was able to demonstrate an audit trail, as he put it, from the newspaper through the journalist to Mr Whittamore. The blagger was involved, the charging element was established, the invoices were sent out and the invoices were paid, so there was a complete picture which he wished to demonstrate to you and did. Do you remember anything about that at all?
A. No. And indeed, the information I have heard and seen this morning is new to me. I had not had that set out in that way to me before.
Q. Have you seen these books before, the red, yellow, green and blue books?
A. I've certainly not seen the content. I can't say I've never seen the books because it's just possible if I was visiting Jean Lockett's office or something, someone might have said, "Oh, that's the Motorman books", but no, other than that, I have not seen those books before.
Q. Was there anything in your office at the time which was as big or as important as Operation Motorman?
A. From an operational investigations point of view, that was probably the largest investigation.
Q. Were there discussions over the months between you and Mr Thomas regarding strategic decisions and policy decisions which would bear upon the future conduct of the investigation and the prosecutions?
A. I don't recall any discussions. I do recall that Richard Thomas decided that he wanted to pursue the route of going to the Press Complaints Commission and writing to Sir Christopher Meyer, but I have to say I think that was Richard Thomas' decision rather than the result of some discussion.
Q. I'm not suggesting, Mr Aldhouse, that you were party to any decision but were you aware, therefore, that a policy decision or a strategic decision was taken whereby the matter would be taken up through the PCC rather than criminal prosecution of the journalists?
A. I certainly knew that Richard Thomas wanted to go to the PCC as a strategic approach. I don't think I knew that he had completely ruled out prosecution.
LORD JUSTICE LEVESON
Would you expect to be involved in this sort of discussion when you're the deputy? This was a very substantial investigation. It was obviously taking up some time and really did hit some very important buttons, on the face of it.
A. Yes, it did, but I was otherwise engaged. Half of my time I was in Brussels on article 29 working party business or the third joint advisory authority business, so it might well be that I mean, no, it was the fact that things just have to happen in my absence.
LORD JUSTICE LEVESON
Oh, I'm sure, yes.
MR JAY
You were there for half the time, though, weren't you, Mr Aldhouse?
A. I can't remember the amount of time, but I was there some the time, yes.
Q. I think the point I was driving at has already been made, but isn't it a bit strange, Mr Aldhouse, that with the policy ramifications that this might throw up and the potential cost implications for your office, that you weren't at least involved quite closely in discussions with Mr Thomas regarding the strategic direction of Operation Motorman?
A. What can I say? It's for the Commissioner to decide how he runs the office. If and it is worth bearing in mind, of course, that it is that the Commissioner is a one-man band and if the Commissioner decides to take a route, so be it.
Q. Yes. So is it your evidence that the Commissioner decided to take a route and he'll tell us about that on Friday but you weren't involved really in any significant way in the discussions bearing upon the direction he might take?
A. I certainly don't recall that, no, and I don't just think that's failing memory.
Q. Had you been asked for a view by anyone, in particular Mr Thomas, what would your view have been in 2003?
A. I think my view in 2003 would have been certainly if I'd seen the information, had it laid out before me as it's been laid out before you this morning, I think my view would have been: we really ought to find a way of pursuing this, this is a major exercise, I'm not at all sure that it's something that could be handled by just two people, an exercise that requires some sensitive handling because I think if you simply approach journalists, they are likely to say, "Why should we respond is to you at all?" So there would need to be some careful construction of the case and the investigation. I'm not quite sure whether we could have put together the resource to handle such an investigation. Not having been put in the position of taking the decision, I can't say how I would have handled it but I do think that yes, I do think there was a case for taking the involvement of journalists and newspapers further.
Q. You weren't party, therefore, to a timorous approach which was dictated by two considerations: first, a concern that it would be rather expensive and you would be at risk as to the cost, of course, if the newspapers obtain their own legal advice, and secondly, that the journalists might put up difficulties in the way of further investigation? You weren't party to that sort of policy, were you, Mr Aldhouse?
A. No, and if I might comment on the expense of prosecution, the practice of the office would be if faced with a very expensive investigation or prosecution, would be to approach the sponsoring department, the Home Office, then LCD, Ministry of Justice, and say, "Look, we might be at risk of considerable expense here. Will you stand behind this with grant in aid if necessary?"
LORD JUSTICE LEVESON
Hang on. At this time, 2003, we're talking about the Home Office, are we?
A. I think we are.
LORD JUSTICE LEVESON
Because the Ministry of Justice doesn't come on the scene until 2008.
A. I can't remember when responsibility transferred from the Home Office to Lord Chancellor's Department, but whichever sponsoring department it was.
MR JAY
Did you apply your mind to these issues at all, Mr Aldhouse?
A. In connection with this case?
Q. Yes.
A. No.
LORD JUSTICE LEVESON
Is that right, Mr Aldhouse? You say in paragraph 8 of your statement, in relation to the suggestion "We can't take the press on": "I don't believe I ever said anything remotely corresponding to this quotation. It does not represent my view then
A. or now."
LORD JUSTICE LEVESON
That suggests that you did reach that view then.
A. I'm sorry, I was responding to the question about expense.
LORD JUSTICE LEVESON
I see.
A. Had I applied to my mind to the costs of a Motorman prosecution? No, I was never asked to. But the question about "the press are too big to take on", simply not my view. Certainly not the sort of language I would have used, and I think I would point to the experience that Elizabeth France and I had in discussions with the media in 1996, that we were quite happy to stand up to the media and try to negotiate with them. I wish I still had the copies of the press gazette articles roundly attacking Elizabeth France and myself. So I don't fear the media, but there are always other considerations.
MR JAY
Did you see counsel's advice, the one I referred to, 22 December 2003, at the time?
A. The first time I've seen it was this morning.
Q. We know you were involved at some later stage. There was a conference with counsel on 27 May 2005, which is our document 48808.
A. Do I have that?
Q. I don't know whether it is in those files but we'll provide you with a note of that advice. It's under our tab 25. We'll provide you with it now.
LORD JUSTICE LEVESON
Tab 25?
MR JAY
Sorry, of the extra bundle of attendance notes
LORD JUSTICE LEVESON
Yes, but I'm not sure that Mr Aldhouse was at that conference.
MR JAY
No, but there's something at the bottom of the page I want to refer him to.
LORD JUSTICE LEVESON
Right. So be it.
MR JAY
Thank you. (Handed) Not a conference you attended, Mr Aldhouse. This is a conference which followed the hearing at Blackfriars Crown Court in April 2005. So that you have your bearings in time, you obviously learnt of that very disappointing outcome at the time, didn't you?
A. Yes.
Q. Is it right to say that there was at the very least a measure of frustration and irritation within your office, probably quite understandably?
A. I think that's right.
Q. And is that a feeling or sentiment which you shared?
A. Yes.
Q. Were there discussions about it with Mr Thomas and the way forward?
A. Well, there was certainly some discussion, the detail of which frankly I can't recall, but you rightly express the view held in the office, and that would have been the subject of discussion. But as I say, the detail of it I'm afraid I don't recall.
Q. At the bottom of page 48808: "JW [who is someone within your office] stated that the view of Richard Thomas and Francis Aldhouse was that if the only problem this case faced was the Blackfriars verdict or other sentence, then the view of the office would be to continue with the prosecution as it still would be within the public interest to proceed as regards the criminality of the remaining defendants." If this note is right, it indicates that you were involved, at least at this stage, in part of the strategic thinking regarding the future conduct of the Operation Motorman prosecutions; that's right, isn't it?
A. Yes, but I say I don't recall the discussions but it might well be that Richard and I had talked about it. There was certainly discussion about the Blackfriars verdict, how disappointing it was, what way should we go, but I'm afraid I can't add to that.
LORD JUSTICE LEVESON
Who is Janet Witkowski(?)?
A. Oh dear. I'm afraid I cannot recall.
LORD JUSTICE LEVESON
Sorry.
MR JAY
I think all I'm gently suggesting, Mr Aldhouse, is this and it's probably fairly obvious now: we have possibly the most important investigation involving your office, Operation Motorman. It has very serious ramifications. It was clearly being ramped up at this stage. Mr Thomas had it in mind to make a report to Parliament shortly afterwards and he did. Surely you were involved, even in informal discussions with Mr Thomas, as to the direction your office was taking, weren't you?
A. Well, I think they would only have been casual ones. Certainly, I have no recollection of I have no recollection of, for example, full briefing material on the basis of which one could take decisions. I simply was not involved to that depth. It might well be that Richard Thomas would have casually said, "We're thinking of going this way, does it make sense?" But I'm sorry, I was involved to a deeper extent than that.
Q. In terms of important strategic decisions and there would be quite a few over the course of the working year of an Information Commissioner was it Mr Thomas' practice to involve you, at least informally, in such decisions?
A. You mean over the whole range of activities of the office? It would depend. Activities were divided. I think I said I spent most of my time by that stage on policy matters, particularly European ones, and I had quite a considerable degree of independence within that area. I think that was probably the way we tended to operate.
Q. So you don't think it's right that Mr Thomas discussed with you back in 2003 the right strategic approach to Operation Motorman, in particular whether it was correct or appropriate bring criminal proceedings against the journalists?
A. I have no recollection of being asked did I think we should bring proceedings against journalists, and if I had been asked, I suppose I would have taken it in two steps. First of all, I would want to know that we had investigated sufficiently thoroughly to justify that, and then well, prosecution was normally left to the legal advisers to the Commissioner. I wasn't the Commissioner's legal adviser. I but I don't recall any discussion about should we investigate further. I no, I think any comment I made after would now be coloured by retrospection.
Q. We know that the legal team, including counsel, were under the direction of a policy decision counsel's advice refers to policy considerations which amounted to this: that the journalists would not be prosecuted, indeed the journalists would not be investigated. Are you sure that doesn't chime with your thinking at the time, Mr Aldhouse?
A. It certainly wasn't my thinking, and indeed, I would have no, if I'd been asked, I would have said we ought to look further. I'm sorry, you will have to ask the Commissioner or the former Commissioner for his views.
Q. So in terms of Mr Owens' evidence, which we heard on Wednesday, what he attributes to you at the meeting of mid-March 2003, you don't remember saying anything along these lines: "We simply can't take on the journalists, they're too big for us", words to that effect?
A. I have not only do I have no recollection of saying that; it is simply the sort of thing I would say and, as I say, it does not reflect my views of or indeed my previous practice of dealing with the media.
MR JAY
Okay. Thank you very much, Mr Aldhouse.
LORD JUSTICE LEVESON
Could I just ask about that? You've mentioned something in 1996. I don't really know what that's about. I appreciate it's going back in time, but could you just paint it in for me?
A. Yes. In the framework directive '95/46/EC was adopted in October 1995, and it contains in article 9 a provision permitting member states to adopt exemptions necessary to protect journalism and similar freedom of expression. We, the Commissioner and I, set about talking to media representatives to see if we could develop a consensus view about how that might be implemented in what became the Data Protection Act 1998. I spoke to oh, I no, there was an individual who is well known for representing the public affairs media I won't mention her name and to a number of the representative bodies, the periodical publishers and the national newspaper press associations and to groups of to groups of particularly media lawyers, and as I say, we the Commissioner and I were quite roundly attacked, not in the public print but in the UK Press Gazette, and it was very difficult to get the media to engage with the fact that here was a directive which said that it was, at least in part, to protect the rights to privacy and there were exemptions and how should though exemptions be how should they be deployed, how should they be enacted, and there was I recall quite clearly one occasion, a meeting of media lawyers at DJ Freeman when they still had a big media practice. One lawyer stood up perhaps I ought not to name the newspaper he represented and said that I was simply wasting my time, that it really wouldn't matter, that the newspaper proprietors would ensure that the legislation was enacted to suit them. So I yes, those things do stick in my mind.
LORD JUSTICE LEVESON
That's rather interesting, isn't it, because they were joining battle with you.
A. Yes.
LORD JUSTICE LEVESON
The legislation was then passed.
A. Yes.
LORD JUSTICE LEVESON
And here, within five years, you had on your desk perhaps not you personally, but the Commissioner's office had on their desk monumental potential breach. I'm just trying to think how that chimes with your memory. This was precisely what you'd been talking about seven years before, the problems that the European directive would generate. It was being ignored.
A. Let me see. I there are two elements to the legislation. There's the enforcement powers of the Commissioner and they are hedged around with lots of complex procedure to make it very well, actually to make it rather difficult for the Commissioner to take enforcement action against the media. But I think yes, you are right that the sort of information that was exposed this morning certainly indicates the what should I say? conflicts between media practice and classic data protection, yes.
LORD JUSTICE LEVESON
Was Mr Thomas the Commissioner at the time?
A. Oh yes. Sorry, not in 1996, no. That was Elizabeth France. Elizabeth France retired in 2002. Richard Thomas became the Commissioner in late 2002.
LORD JUSTICE LEVESON
But does it not chime some memory with you and I appreciate it's a long time ago that here was something which had happened which actually you'd gone through the mill with those years before, and here it was coming back to demonstrate the accuracy of the perception that you then had?
A. I think that's why I said to Mr Jay that had I been asked at the time, my view would have been we should at least have pursued investigation of journalists.
LORD JUSTICE LEVESON
I mean, how big is the office of the Information Commissioner? There's the Commissioner, there's you.
A. Yes.
LORD JUSTICE LEVESON
There's the number two
A. Well, there are, of course, two deputies.
LORD JUSTICE LEVESON
Yes.
A. Well, the total staff now, of course, is about 300.
LORD JUSTICE LEVESON
But what was the senior staff then?
A. Myself and another deputy. One, two, three, can't remember, four assistant commissioners. Several then the what are we talking about? A management team of I'm trying to think. It would have been the possibly 10 or a dozen very senior people.
LORD JUSTICE LEVESON
Okay. You've now seen this material laid out.
A. Yes.
LORD JUSTICE LEVESON
You've seen the detail that it contains and the names and all the material that was documented at the time. Are you surprised you weren't asked and there wasn't a management discussion about this?
A. Am I surprised? I'm disappointed. Not necessarily surprised. I know that there was, because it's in my diary, a what must have been a fairly substantial briefing session in August 2003.
LORD JUSTICE LEVESON
Yes.
A. And I was on leave that week. My diary shows it. I well, yes, I'm sure in retrospect it would have been one could well say: wasn't this big enough for the whole of the management team to be involved?
LORD JUSTICE LEVESON
Not least because you'd gone through the battle those few years before, so you knew the history.
A. I certainly had views, anyway, yes.
LORD JUSTICE LEVESON
I'm sure, yes. Thank you.
MR JAY
May I ask a few more?
LORD JUSTICE LEVESON
Yes. That's the process of inquisitorial proceedings, Mr Jay.
MR JAY
Paragraphs 9 and 10 of your witness statement. Let's just get a clue what your thinking might have been. We need to throw ourselves back, don't we, to 2003 and ignore your thinking today. If you look at paragraph 9, you use the present tense: "My approach to taking formal action against the media is as follows." Can I just clarify your use of the tense. Are you saying that's your approach in November 2011 or was that your approach at all material times when you were the deputy? It's the latter, isn't it?
A. I so far as I can tell, it is an approach I would have taken at the time, it's the approach I've taken for a long time, but memory plays tricks, so you will forgive me if I'm being cautious. But it is certainly perhaps because of my dealings with the European institutions, this sort of approach is one which I have held for a long time.
Q. You say then in the next sentence: "The Commissioner has strong powers, which should be used in relation to the media with particular discretion."
A. Yes.
Q. You refer to Article 8, et cetera, et cetera, and at the end of this paragraph you say: "The pursuit of individual journalists could have a chilling effect on those rights."
A. Yes.
Q. Aren't you telling us there that that would militate in favour of not pursuing journalists, or at least being very careful about doing so?
A. Certainly about being very careful. I yes, this is a rather short statement and rather compressed. I don't wish I don't wish to speak up for or be seen to be speaking up for the practices that have already been exposed to the Inquiry, but I suppose I am concerned that if one talks about the press and journalism generally, that you shouldn't catch up the innocent along with the guilty. I have a particular concern because of meetings I've attended and things that have been said to me about consequences for local newspapers. I mean, if I have an anxiety, and the effect the problem of a chilling effect, it's for the Gloucester Citizen, the Oxford Mail, the Farnham Herald and the Nutsford Guardian, not the Sun and the Daily Mail.
LORD JUSTICE LEVESON
But that wouldn't be to permit them to breach Section 55, would it?
A. Um
LORD JUSTICE LEVESON
What you're concerned about is the viability of local newspapers providing a local service for the local communities, I assume?
A. Yes. But local newspapers have been concerned about the way that, for example, defamation has been used to put them in some financial difficulty, and I wouldn't want I wouldn't want a data protection legislation to simply be another rod to beat their backs with.
LORD JUSTICE LEVESON
I'm sorry, Mr Jay. Has any local newspaper ever suggested to you that they were concerned that Section 55 of the Data Protection Act was going to cause them difficulty?
A. Not in so no, because the time my discussions predate that. I'm thinking back to my discussions in 1996 on how one might implement article 9 of the directive, and certainly concerns were expressed to me then about I have a particular meeting in mind and certainly concerns were expressed about the fragility of local newspapers and the legal threats they felt they were under.
MR JAY
Operation Motorman wasn't involved or concerned with local newspapers, was it?
A. No, absolutely not.
Q. Can I look at the practical issues you raise in paragraph 10, please. You set out what the section provides. In the second sentence: "There are practical challenges in the investigation of the involvement of individual journalists in such cases in demonstrating Then you make three points: first the degree of knowledge on the part of the individual journalist That you can find out just by interviewing them, can't you?
A. I think that takes me to the third point.
Q. Which is what?
A. Which is: why should a journalist respond to our request for interview? The Commissioner has no power of arrest, has no power to compel people to speak to him. These we would be seeking to interview journalists presumably as prospective defendants to a criminal action. They would have to be cautioned. A well-advised journalist would simply say nothing.
Q. Let's explore that, Mr Aldhouse. Just cherry-pick, as a starting point, the very best cases: the CRO cases, of which there aren't very many, but you could take a sample, and the family and friends cases. The Information Commissioner's office would then make a request to interview the individual journalists and possibly the individual editors, having pointed out, as must be obvious, that there's a strong prima facie case which needs to be rebutted. Are you saying that practical obstacles would have been put in your way which were so great that your investigations might have been thwarted?
A. Well, the investigations might have been thwarted but I think the tenor of your questions is: shouldn't you at least try? I think I agree with that.
LORD JUSTICE LEVESON
But actually, they wouldn't necessarily be thwarted because if you have a paper trail that takes you from the journalist on the one hand to Mr Whittamore on the other and all the material, as you've now seen, which you've explained you hadn't seen before, if he says nothing, then the prima facie case there stands unrebutted.
A. Um I wonder whether well, let me accept that the paper trail is sufficient and complete. In that case, you would be right, and then it's a question of: is there a public interest defence? Now, I think I heard some remarks from you, sir, earlier that how could this possibly be a public interest defence in these cases? I think it's worth bearing in mind that we're talking about 2003, and I certainly remember discussions between senior staff and the lawyers in 2002 saying how can I choose my words correctly? The remarks of the Lord Chief Justice in A v B, the Garry Flitcroft case, were not helpful in now, admittedly we're talking about a case that could be distinguished. It was a civil case, it was interim relief, but remarks which suggested that there was a public interest there was there was a public interest in having economically viable newspapers, and for that they had to sell they had to print things that the public were interested in, even if it was tittle-tattle. Now, I know that in the Court of Appeal six months later, a different Court of Appeal slightly modified those used, but nonetheless it did rather discourage people like ourselves, senior staff in the Commissioner's office, from thinking there's a good you know, there's a possibility of prosecutions in this sort of case because we thought: well, the journalists have got a fairly easy route to establishing a public interest defence. The world has moved on, of course, and maybe the courts won't see it that way.
MR JAY
But all this is demonstrating is that there may well have been a policy decision not to pursue the journalists because you're expressing views which are entirely consistent with the existence of such a policy decision. Isn't that right?
A. There might well have been, but I didn't take it. I'm sorry, you will have to ask the former Commissioner, Richard Thomas.
MR JAY
Well, I will.
LORD JUSTICE LEVESON
Yes. I don't know whether, when you were looking at the screen, you could see some of the entries of persons, because if you'd seen the names of the people who were the subject of these enquiries friends and families, for example if you were going to say there's a public interest in looking at those, you might as well then say that data protection doesn't run to journalists.
A. First of all, I don't say that there's a public interest defence. I'm merely trying to put myself back in how we reacted to certain legal decisions in 2002, 2003. And, well, there are those who think that the legislation was constructed to achieve just what you are saying.
LORD JUSTICE LEVESON
Well, maybe I'll have to re-look at A v B. All right.
MR JAY
I think that's as far as we can take it, isn't it, Mr Aldhouse? Thank you very much.
LORD JUSTICE LEVESON
Thank you very much for coming.
A. Thank you.
LORD JUSTICE LEVESON
We'll have a few minutes' break. (11.58 am) (A short break) (12.O2 pm)
MR JAY
The witness who was lined up for today is now going to be called tomorrow, so there is a small gap. Mr Burden will take a bit of time, but he's not available at the moment. There's one redaction, in any event, to his statement, which will be required, which we will organise over the next few minutes or so, but may we hear his evidence at 2 o'clock?
LORD JUSTICE LEVESON
I think that's probably sensible. Representations have been made to me that it is in the public interest that statements be published before the witnesses come to the Inquiry, and that therefore I should discharge the order that I made last Monday, which imposed a restriction on the publication of those statements. I will, of course, consider those submissions carefully and provide a reasoned response to them, but my immediate reaction is that if statements are released in advance, then the debate about that statement will start then, and far from having the effect of encouraging an appropriate and orderly pursuit of the Inquiry, it will mean that the debate will move through various stages before the witness ever gets anywhere near the Inquiry.
MR JAY
Yes.
LORD JUSTICE LEVESON
That's my immediate reaction, and indeed I was persuaded of that view by Mr Caplan. My immediate reaction when we'd learned that Mr Campbell's statement had been put into the public domain, was to say: right, let it go, and he made submissions to like effect to that which I've just summarised. I'm keen to know I appreciate nobody's had notice of this if anybody has any particular views on this topic or whether they want to speak up for removing the restriction or for supporting it? Mr Garnham.
MR GARNHAM
Sir, we would certainly support your provisional stance.
LORD JUSTICE LEVESON
It's certainly my present stance, because it's the order from last Monday.
MR GARNHAM
Yes. We would encourage you, sir, to remain of that view. The orderly management of this Inquiry is something that affects the core participants as well as your team. It's inevitable that some statements come out quite late because the process is a rapidly moving one, and if we are to give any consideration to the potential effect of that so that we can make a decision as to whether representations need to be made, we need at least the time between the publication of the statement to core participants and the calling of the witness. If it's going to be released publicly earlier than that, that makes that task impossibly difficult. I would add, sir, that you are entirely right, if I may say so respectfully, that if you allow the publication of statements before the witness gets to that witness table, the matter will be debated in the press long before the evidence is tested here, and that ought not to be so.
LORD JUSTICE LEVESON
Thank you. Does anybody have any other view?
MR DAVIES
It's not another view, but I was hoping to echo what Mr Garnham says about timing. I could see an argument for another view, but it would require that the core participants had plenty of time to see the statement before it was made public, which would then be before the witness gave evidence, and the speed at which things are going at the moment simply doesn't allow that much time.
LORD JUSTICE LEVESON
I understand that.
MR SHERBORNE
Sir, I was simply going to endorse the approach that you're taking currently. As you know, in the past we've wanted all the statements to be ready as soon as witnesses were giving evidence. I know logistical difficulties have made that not necessarily possible in every case, but
LORD JUSTICE LEVESON
I hope it's got better, Mr Sherborne.
MR SHERBORNE
It's got better. Unfortunately, it's slightly too late for my witnesses, but I'm not going to carp. In terms of the approach from now on, we certainly would endorse the principle, sir, that you've adopted.
LORD JUSTICE LEVESON
Right, thank you. Mr Caplan, this was your submission last Monday, so I suppose you will maintain it?
MR CAPLAN
Yes, please.
LORD JUSTICE LEVESON
Thank you very much. Anybody else want to say anything on the topic? Well, I shall consider the submissions carefully and I shall respond appropriately. Thank you all very much for your assistance. Let's wait until 2 o'clock. Thank you. (12.08 pm)
