(2.00 pm)
LORD JUSTICE LEVESON
Two things before we start. First of all, I understand that the web streaming has failed, in the sense that it is not available contemporaneously with the evidence. Having regard to the pressure of time, we will carry on. I am assured, first of all, that the problem will be corrected, secondly that the evidence is being recorded, and thirdly that it will be up and running quickly. Certainly I have no doubt that all the evidence will be available for those who want to see it at the end of the day. The second issue that I'll mention now is that I understand an error was made in relation to tomorrow morning, suggesting that we were starting at 9.30. Whereas I am entirely comfortable with that as a proposition, that's not the intention and we shall start as usual at 10 o'clock. Right.
MR JAY
Just a short point, Mr Williams. You gave evidence to a Parliamentary Select Committee sitting next to Mr Yates on 2 September 2009. Do you recall that occasion?
A. Yes.
Q. Mr Yates said and if you need to see it, I can show it to you: "The collective belief is that there were then and there remain now insufficient grounds for evidence to arrest or interview anyone else." Ignoring what the position might have been in 2009, but going back to 2006, was that your view?
A. Yes.
Q. Insufficient grounds to arrest or interview anyone else?
A. Yes.
Q. Are you sure about that?
A. Yes, because I would have wanted to have done more work to reach that position.
LORD JUSTICE LEVESON
With great respect, that doesn't answer the question. I'm sorry, Mr Williams. You may very well want to do more work
A. I believed I'm sorry, sir.
LORD JUSTICE LEVESON
That's not the issue. The issue was: was there prima facie evidence upon which you could reasonably conclude that an offence had been committed by someone whom you could reasonably identify?
A. I didn't believe there was enough grounds to arrest.
MR JAY
Move forward to 2009. The article in the Guardian was 8 July 2009, and on 9 July, at the instance of the then Commissioner, Sir Paul Stephenson, Mr Yates, then Assistant Commissioner, was asked to do a review. There's debate as to what exactly it was. Can I ask you, please, how long did that exercise take before Mr Yates gave his statement that afternoon?
A. I believe he started in the morning, early in the morning, and I understand he gave that statement late in the afternoon, about 5 o'clock, so throughout the day.
Q. Can I ask you, please, what role you took in relation to that exercise? Did you speak with him that day?
A. I did.
Q. For how long?
A. I think on and off. I was with him for most of the day, starting in the morning, giving him an explanation of what we had done in the investigation.
Q. Did you show Mr Yates any documents?
A. The documents that were produced I showed him my informing potential victim strategy, I showed him a copy of the indictment, and that was it, because we didn't have any other documents on that date. Sorry, there was another short briefing document.
Q. On the basis of that, Mr Yates said that there was no new evidence which would justify reopening the investigation; is that correct?
A. That's correct.
Q. Were you seeking to persuade him that that was the position?
A. I just gave an explanation of exactly what we'd done and the position we had reached. I was just explaining to him exactly what we had done.
Q. But in a very succinct and editorialised way, you were giving him a snapshot picture of what your investigation had established, and he then put that in the public domain at about 5.00 in the afternoon; is that right?
A. Yes.
Q. Can I ask you, please, to look at file 4 of this bundle, tab 160, which is 03914, which is a briefing that you prepared for Mr Yates in relation to Operation Caryatid. Do you recall that?
A. Yes.
Q. It was you and Mr Surtees who prepared it. It's dated 12 July, which was a Sunday.
A. That's correct.
Q. But Mr Yates had given his statement already at 5 pm on 9 July, so by definition Mr Yates didn't have the benefit of this document, did he?
A. No.
Q. What was the point of preparing the document at all?
A. Because I had provided a verbal briefing of what had happened, and I wanted over the weekend to document in writing, so that he had the benefit of exactly what the case had been about.
Q. So does this contain in the same detail as your oral briefing to Mr Yates that which you told him on 9 July, or does it provide further and additional details?
A. It may well include additional detail, particularly when it goes into quoting figures, because then we had retrieved the investigative documents from storage and so I would have been able to do that. On the day, I would of 9 July, I would have been doing it to the best of my ability of my memory.
Q. Can I ask you, please, just a couple of points on this document, now I understand the purpose of it. Paragraph 15, which is the third page of the document, page 1000 on the internal numbering. Maybe we can start with the last sentence of 14: "On some there are names which probably relate to journalists and cash sums." This is a reference to the corner names, isn't it?
A. Yes. I seem to can you just read that out. It's slightly different. Are you reading from paragraph 15?
Q. It's the last sentence of paragraph 14.
A. Oh sorry, yes. Forgive me.
Q. Is that a reference to the corner names, what we're now calling the corner names?
A. Yes, yes.
Q. I should probably read out, in fairness, the previous sentence: "In many there is simply the name of a celebrity or well-known figure, in others there is more detail with names, addresses, dates of birth, telephone numbers, DDNs, passwords, PIN numbers and scribblings of private information." So that was the picture you were giving Mr Yates. Then paragraph 15: "It should be noted that no evidence existed to suggest that those possible journalists detailed on these sheets had knowledge of the illegal methods undertaken to supply these stories. However, it should be pointed out that in one of the recordings recovered from Mulcaire it is clear Mulcaire is giving instruction to an unknown person (possibly a journalist) on the telephone So in this document the corner names are probably relating to journalists, is that right?
A. Yes.
Q. Aren't you putting it far too low when you say in paragraph 15 "no evidence existed to suggest that those possible journalists detailed on these sheets had knowledge of the illegal methods undertaken to supply these stories"?
A. I don't believe so. I don't believe that I had any evidence which would show that they actually knew what was going on.
LORD JUSTICE LEVESON
Oh, Mr Williams, come on. The Mulcaire document was replete with tons of data.
A. In terms of those journalists, those names, whoever they were, in terms of me approaching them as an investigator, where is the evidence, I'm asking myself, to show that they knew exactly what he was doing? Yes, my supposition is they're tasking him with information and he may well be giving it back, but I didn't have evidence of what he was being tasked with and what he was giving back. That's what I believed.
MR JAY
But just putting that together or reassembling it, Mr Mulcaire's whole modus operandi was hacking into voicemails, wasn't it?
A. Largely, yes, but at the time I was open to he could be doing any number of other things. I know now, as a result of everything, everyone shows that, but
Q. But in relation to this notebook and the 11,000 pages, it's all part of a completely coherent picture that this is a man who is hacking into voicemails. This is his sole way of being, his industrial activity. That's what he lives for, to hack into voicemails, isn't it?
A. I know we know that now. At the time my genuine belief was yes he's doing that, definitely, but he may well be doing a raft of other things.
Q. But isn't it likely, Mr Williams, that Mr Mulcaire, whoever the person is he's speaking to, who's organised this, tells that person, "I've listened to celebrity X's voicemail and this is what I can tell you is on the voicemail." Isn't that at least a plausible picture?
A. It is a plausible picture, but I have no evidence of that to put before a court.
LORD JUSTICE LEVESON
Well, it depends how you define circumstantial evidence, doesn't it? Because you acknowledge that there is circumstantial evidence, or somebody acknowledged, as recorded by Mr Crone, that there was circumstantial evidence, and you and I both know that many, many criminal cases are pursued solely on the basis of circumstantial evidence, which, taken together, can be extremely strong, and indeed stronger than some direct evidence. You said to me before lunch that if you were going to investigate further, you would have wanted to do a lot more work. Here you're saying there's no point in doing any other work because there's no evidence to suggest that anything else has gone wrong. Now I ask you whether that's really your evidence.
A. I believed what I've written here is my genuine belief, that I would have needed a lot more to be able to take that case forward. I'm not trying in any way to hide anything from Mr Yates or distort the truth.
MR JAY
There's another document which was probably prepared for the same sort of purpose, tab 168, which is 03938, this time dated 16 July. I'll give you time to look at it.
A. Yes.
Q. But again, was this a designed, as it were, after the event for Mr Yates to consider?
A. Yes. Mr Yates is being asked a whole series of questions, and he's asking me to articulate in writing some of the thinking behind the investigation.
Q. Thank you. On the second page of this document, the fourth bullet point, you say: "All of the above was not a decision that I made in isolation. Throughout, this investigation had the highest oversight at all times." Is that a reference to Mr Clarke or to anybody else?
A. It's all my senior management, and yes, up to Mr Clarke, and obviously when the investigation became public, I know those briefings went higher in my organisation.
Q. To Mr Hayman; is that right?
A. Yes, he was briefed.
Q. Was he briefed earlier than 8 August 2006?
A. I don't know.
Q. "The potential breadth/scale of what may or may not be out there was fully discussed together with what resources might have been required to even begin exploring that. There was no appetite to expand the investigation What is that a reference to?
A. I believe this is purely that decision around resources, because of the conflicting operations.
LORD JUSTICE LEVESON
But you've gone further, because you don't think there's an evidential basis to expand it.
A. It may be my lacking, sir, and I apologise, but I
LORD JUSTICE LEVESON
No, don't apologise.
A. Well, I personally this is my personal belief as an investigator, and maybe others will judge my threshold is too high, but given my experience of investigations and presenting a case before a court, I obviously have a personal higher threshold than others as to what I believe in terms of the right thing to do in terms of reasonable ground before I start depriving other people of their liberty. I do understand that you are arguing to me that there is a lower threshold and I could have arrested and interviewed.
LORD JUSTICE LEVESON
No, or you could have investigated. You could go back to do that which you said you would have wanted to do had you had the time and it was appropriate use of resource. But what you're now presenting is a decision that there's nothing else to do. Actually, what you were saying to me before lunch was there was a great deal you could have done, but for very understandable reasons, and I'm not challenging that reasoning, but for very understandable reasons, you didn't feel it was appropriate to go there. I'm really trying to understand.
A. No, I see what you're saying. I've written this at a time I'm writing this in the point of view I'm thinking of it in my head as the evidence I didn't have in my mind of what I would have needed to take that investigation forward, and if I've created the wrong impression, I've created the wrong impression. It was not done intentionally. I'm trying to provide a briefing to my senior officer as genuinely as possible as to what we did and what we didn't do then. I'm saying I haven't made these decisions I accept I'm responsible, I was the SIO, no question about that, but I haven't done it in isolation, I have briefed and talked to a whole range of people and I always do that for the purpose of taking advice and talking things through. Ultimately my decision as SIO where we go with that in the parameters I've been given with the investigation. I understand what you're saying, but I was not doing anything here to mislead or create a false impression.
LORD JUSTICE LEVESON
Before you wrote this briefing for Mr Yates, had you read the material that the Guardian had published?
A. I'd seen what they'd written in the original investigation, yes, and it was material that we, the police, had all released in terms of Mr Taylor's private prosecution, and again, maybe it's the wrong perception, my feeling was that they were very much saying we were trying to hide something, so my that's my impression from the coverage, and I'm trying to say there was absolutely no intention to hide anything. And this is what I'm trying to articulate to Mr Yates.
MR JAY
Mr Yates gave a statement on 9 July, it's the one I referred to given about 5 pm.
A. Yes.
Q. Did you have any hand in the preparation of that statement?
A. I did see it. We'd all contributed in terms of the background to that statement. He would have prepared that in conjunction with our department of DPA.
Q. The statement says: "Their potential targets Obviously Goodman and Mulcaire?
A. Yes.
Q. may have run into hundreds of people [this is tab 94 and the 418] but our enquiries showed that they only used the tactic against a far smaller number of individuals." Was that a correct statement?
A. It was from my perspective of what would constitute an interception. I totally understand that there is a different view on that now.
Q. Can I just take that in stages? If one includes everyone whose phone had been accessed, regardless of whether or not it was before the intended recipient had listened to the message
A. Yes.
Q. was that a correct statement?
A. I believed it was a correct statement, because in my mindset it's about the people I'm thinking about the people that had been intercepted in terms of our prosecution. I understand in my victim strategy that I was looking to inform a wider pool of people, and potentially unknown group of people.
Q. Because it's a positive statement here: "Our enquiries showed that they only used the tactic against a far smaller number of individuals." In fact it's not quite the right way of putting it, that had you done further enquiries, it might have shown or demonstrated that the tactic had been used far more widely.
A. Yes.
Q. Do you see that?
A. Yes. And there is a completely unknown. We actually don't know who has actually suffered from this at all.
LORD JUSTICE LEVESON
But go back to my bank robbery analogy again. We do know that there were many, many more who were the victims of a conspiracy to intercept their messages. Whether it's a RIPA conspiracy or merely a Computer Misuse Act conspiracy. We're not talking now about sentence, you're not prosecuting anybody. We're simply talking about criminality.
A. Yes, and I understand that, and you're asking me about this document and why I wrote it, and you're picking on, yes, particular expressions that I've used. What I'm trying to explain, I've written this from the memory yes, and from the reviewing over the case, but from the mindset of my case and what I was trying to do, and I know now quietly there's a different perspective on what a victim would be and that it's far more wide-reaching. I understand that.
MR JAY
Then the statement carries on: "Where there was clear evidence that people had potentially been the subject of tapping, they were all contacted by the police." Was that accurate or not?
A. Well, it's not not all people, because of course I believe strictly speaking it's not accurate because actually we did a particular group of people, the police, as I've outlined, and as I believed, the other people were being dealt with by the mobile phone companies.
Q. Because the group you took it upon yourself to contact were those in the four categories, the MPs.
A. Yes.
Q. And only those where you had evidence that their phones had in fact been intercepted and not, therefore, those who had been potentially the subject of tapping. Do you see the difference?
A. I do see the difference. Yes, I do.
Q. Mr Yates told Parliament, I think in April 2011 we'll look at the document with him tomorrow that 36 people in that category were contacted by the police. Is that about right?
A. I think if you're talking the period 2005 to 2006?
Q. Yes.
A. I believe it's 28.
Q. Sorry, you're right, it's 28 plus 8 equals 36, and the 8 may not be in those four categories, okay.
A. Okay.
Q. But that's more than the far smaller number of individuals, is it, that you're referring to earlier? Because you say "our enquiries show that they used the tactic against a far smaller number of individuals". Were you intending to refer just to 28 or what number were you intending to refer to?
A. Do you mind if I have a look at that document?
Q. Yes, of course. Let me hand this to you. I printed it off the Internet. It's the one I've highlighted. (Handed).
A. Thank you very much. (Pause). My intention to convey to him is there may be many hundreds of people here, potential people, as we've said here. That is unknown. In terms of my investigation, our enquiry to the tactics, yes, okay, I see the word "tactics". Now we're reanalysing the words.
LORD JUSTICE LEVESON
I'm afraid we only read words, Mr Williams.
A. No, you're absolutely right. I can see the interpretation. I'm thinking the actual from the point of view of actual intercept, as I would have thought about it, was a far smaller group than many hundreds, in which case I would have had in mind that smaller group.
MR JAY
Okay.
A. I understand now what you're saying, yes.
MR JAY
Those are all the questions I have for you, Mr Williams. There are other witnesses who will fill in other pieces of evidence as we proceed this afternoon.
LORD JUSTICE LEVESON
Mr Williams, I don't want you to misunderstand me. I am not suggesting that you have been involved in some inappropriate relationship which has caused you personally to backtrack on an investigation. But I am sure you will understand the concern that decisions taken in the heat of the terrible events of 2006 and I'm not now talking about the arrest with which we've been concerned, but the other work of your department are very readily understandable. But it's quite difficult to translate some of those perfectly legitimate decisions into a construct where we now know the facts from the documents I'm not talking about what Ms Akers and Weeting have produced and say that, well, there was nothing there at all. The risk is not that I'm challenging you about words, and I take your point, but that people might perceive that your reaction to these issues and I'm talking about your collective reaction, I'm not talking to you personally
A. Yes, I understand.
LORD JUSTICE LEVESON
encourages inappropriate inferences to be drawn. Do you understand what I'm saying?
A. I do, sir.
LORD JUSTICE LEVESON
So it's that that is the concern that I have to address, because it is critical that the public have confidence in the police. I know that as much as if not more than anybody. But, of course, the consequence of an approach that may be justified for one reason and then justified again for a slightly different reason is that if it becomes unpicked, you have to start from scratch, which of course is exactly what's had to happen.
A. Yes.
LORD JUSTICE LEVESON
And that itself has public interest consequences.
A. Absolutely. Can I make a comment, sir?
LORD JUSTICE LEVESON
That's precisely what I was prepared to invite you to do.
A. Thank you, sir. What I'd like to say, and I know we talked about for lunch, I really would like to assure you sir that that original investigation with my team, and we were working with our senior management, and yes, Mr Clarke from my perspective was that threshold, we absolutely put a lot of effort into that investigation, with the best of intentions, and we were absolutely not influenced by any of the things that have been suggested and what your Inquiry is about, which I think is entirely right and proper. When it comes to 2009, and I've thought about this, is with Mr Yates, he from my perspective was in the invidious position and I've had an insight into the role of Assistant Commissioner now he is basically inheriting, if you like, an investigation that he had nothing to do with. It was a hugely complex investigation, as you've seen. I know a lot about it. And I am trying to get him to understand the ins and outs of that investigation, and he is trying to take all that on board. These briefing documents were part of that process. Again, in my workings with him, I've not worked with him directly before, but I saw nothing or heard nothing that made me think that we that there was anything wrong going on here, that we were looking to hide anything. He was looking at an investigation that was four years old. I briefed him and over the period I believe he was genuinely seeking to understand what had happened and make proportionate decisions. I just want to assure you that I've seen nothing that makes me think that there is anything other than a genuine desire to do a proper investigation and to keep the public informed about what's going on.
LORD JUSTICE LEVESON
Do you think that your reaction in 2009 the police reaction, I'm not talking about you
A. Yes.
LORD JUSTICE LEVESON
was just too quick? That rather more ought to have been done, so that a far broader analysis of the nuanced position which you had from your decision logs, it's all there before Mr Yates went out snap?
A. I agree in hindsight
LORD JUSTICE LEVESON
I'm not so sure that necessarily should be in hindsight, but anyway
A. Well, no, from a position now I can see, and I think Mr Yates has said it, at the time what it felt like was that everybody was saying that this was a conspiracy and we'd hidden it, and actually I believe what we were trying to say: that's absolutely not the case here. But in doing that, I agree with you, perhaps we could have just paused for a moment and thought: is it just that? Because we in a sense to me it felt we were reacting to the fact that someone was saying we'd hidden something and I knew we had absolutely not hidden anything, and in hindsight, yes, if we had paused, maybe there would have been a different approach. We all learn.
LORD JUSTICE LEVESON
Because the consequence of going out as you did go out is to feed and fuel the concern that you have hidden something which only now is all coming out. That's the consequence. I'm not saying you intended to do that, but I just felt it was important to give you the opportunity to comment upon that.
A. I believe I have, and I thank you, sir, for that opportunity.
LORD JUSTICE LEVESON
Thank you very much.
MR JAY
Thank you, Mr Williams.
A. Thank you, Mr Jay.
MR JAY
We'll move on now to our next witness, who is Mr Surtees, please. MR KEITH SURTEES (sworn) Questions by MR JAY
MR JAY
Mr Surtees, your full name for the Inquiry.
A. My name is Keith Surtees.
Q. Thank you. I hope you're going to be able to find easily a bundle with witness statements, and under tab 5 of that bundle you'll see a statement which you gave in the judicial review proceedings on 30 September 2011.
A. Yes, I have that.
Q. You've signed that statement under a standard statement of truth. You are in the current rank of Detective Chief Superintendent; is that right?
A. That's correct, yes, sir.
Q. Back in 2006, when you joined SO13, you were Detective Chief Inspector; is that right?
A. That's correct.
Q. And you became the investigating officer of Operation Caryatid on 18 April 2006, following a request, you say, which came from Detective Superintendent Williams. This is paragraph 7 of your statement. Just so we have it in a nutshell, the difference between the responsibilities of a senior investigating officer and an investigating officer?
A. Senior investigating officer essentially sets out the strategy of an investigation, makes sure the resource requirement, et cetera, is met. The investigating officer carries out that strategy, turns that into tactics, if you like, and delivers those tactics to deliver the strategy which has been set by the senior investigating officer.
Q. Thank you. At the same time you were performing the role of senior investigating officer for numerous priority terrorist investigations which were within SO13 at this very busy time. Is that correct?
A. Yes, that's correct. My primary role was as a senior investigating officer with a counter terrorism command or anti-terrorist branch as it was then known.
LORD JUSTICE LEVESON
You have to be a bit slower, Mr Surtees, because otherwise we don't pick it up.
MR JAY
Now, we're not going to cover all the points made in this statement, we're just going to alight on some key points, because we've had a lot of the evidence already from Mr Williams. But paragraph 14, please: "The only way to establish whether illegal access to voice messages was taking place was to obtain the incoming telephone data to the voicemail of the complainants, in other words a list of telephone numbers ringing into the voicemails of the victims." You say the way you went about doing that was to obtain account information under part 1 of RIPA, in relation to Mr Goodman's telephone. Is that correct?
A. Yes, that's correct. Mr Goodman became a suspect of this investigation pretty early in terms of the investigation, and I did obtain through RIPA legislation access to the call data, the outgoing call data of Mr Goodman's telephone to ascertain who he was calling at that particular time.
Q. So it goes without saying that these data would correlate with the phone numbers of the voicemails of your main victims, who at that stage were JLP and HA; is that correct?
A. That's precisely what I was looking for, yes.
Q. Put succinctly, was this a straightforward or difficult exercise?
A. Straightforward exercise in so much it did take some time to do. The paperwork isn't one piece of paper, it's a number of documents that need to be put together. It's an assessment that a superintendent would then do, forward it through. So it's a laborious process. In terms of the difficulty of the task, not particularly difficult. It needs to be proportionate and necessary, and we need to account for the fact that we're intruding into somebody's privacy, essentially.
Q. If we move forward in time so that we can understand this theme, post 8 August, where you have a list of victims whose phones had been potentially compromised, could you not carry out the same exercise in relation to a limited number of those victims to see who else may have been calling into their voicemails?
A. Yes.
Q. Had you done so, would that or might that have revealed whether other journalists were concerned?
A. Potentially, yes, eventually.
Q. Why eventually? Why not presumably straightforwardly?
A. If I work through the process of a victim first, what I would see is a multitude of data coming in to a victim of crime. So I'd see thousands of lines of data. If I do it the other way, ie I have a suspect in the form of Goodman or Mulcaire, I have what we call and what we termed within this investigation rogue telephone numbers. I have something to pinpoint. That rogue telephone number going into a victim precisely is easier to locate than simply looking at thousands of lines of data from a victim of incoming telephone calls and then potentially translating each one of those individual lines of data into a separate RIPA request to see who those particular lines of data belong to. Virtually impossible to do, I would suggest, under those circumstances. The way to do it is when you have a suspect in mind and you're looking at that suspect, to see whether that suspect particularly is accessing the voicemails or DDNs of particular victims.
Q. I'm going to just understand that, Mr Surtees. Imagine that you have one of our 418 victims and you have the unique voicemail number. Why don't you simply ascertain who is calling into that number? Are we agreed?
A. In terms of rogue telephone numbers, and in the case of Goodman and Mulcaire I had some rogue telephone numbers. Easy to do to see whether those telephone numbers have gone into any of those victims, accepted. In terms of anybody else, impossible to do unless you identify particular rogue telephone numbers you're looking for.
Q. I'm not sure that it's quite so difficult, Mr Surtees. You take one of the victims. You have a series of you might see a series of potentially rogue numbers. Why don't you go and speak to the victim, who will say, "I can tell you that these numbers are legitimate numbers"
A. Yes.
Q. "but I simply don't know who these other numbers are", so why don't you just focus on those other numbers?
A. Possibly a way to do it, yes.
Q. It's quite simple, isn't it?
A. It would be possible to hand over the data to those people who hold that telephone and say "Do you recognise any of these numbers?"
LORD JUSTICE LEVESON
Or to ask this question: "Do you ever access your voicemail remotely?" Because I would have thought most people would say no.
A. On the telephone bills of the victims we're actually talking about, the fact that the voicemails had been activated or accessed doesn't feature on those telephone bills. You don't receive a telephone bill that actually shows the fact that your voicemail has been activated.
LORD JUSTICE LEVESON
No, I think you misunderstand my suggestion and I think I have it right. If you ask somebody, "Do you ever access your voicemail remotely from another phone?", answer, "No", they don't need to know the numbers that have actually tried to do that, they don't need to know the fact that that's happened. You know that because you can get that information from their phone companies, can't you?
A. From the phone companies, going back to a victim, I can get the incoming call data into a victim's telephone, yes.
LORD JUSTICE LEVESON
Yes, that's the point. So I'm right, am I?
A. If I were to simply randomly pick a victim, you or anybody else, for instance, and simply look at that data of incoming call data, I'd see lots of lines of information. What I wouldn't see and identify really quickly is the fact that amongst that myriad of lines of data, ie telephone numbers, I would be able to pick out suspicious activity from those lines of data. I simply wouldn't be able to do that. What I would be able to do in terms of Mulcaire and Goodman, for instance, because I know those telephone numbers, I'd be able to pick those out.
LORD JUSTICE LEVESON
I understand that. My point was that the data would tell you which incoming calls were remote access to voicemail. Is that right?
A. No. Only the vampire data tells us that. The incoming call the vampire data shows us details of calls into voicemails.
LORD JUSTICE LEVESON
Yes.
A. The telephone companies don't the whole sort of problem at the beginning of our investigation was the fact that the telephone companies keep data information on the basis of what they can charge customers for. That's what they keep their data for. They can't and don't charge for this issue of access into voicemails. So it isn't as straightforward as simply looking at somebody's telephone bill or at incoming call data.
LORD JUSTICE LEVESON
No, no, I wasn't suggesting you would look at their bill. I was wondering what the telephone companies could do. Anyway, I've asked the question.
MR JAY
Of course you already had data which referred to the News of the World hub phone, didn't you?
A. Yes.
Q. And in those cases you didn't know whether or not that was Mr Goodman within the News of the World, or some other journalist within the News of the World; is that right?
A. It's a hub telephone number attributed at that particular point to nobody.
Q. As soon as you were outside that which was of interest to a royal correspondent, you were beginning to suspect that it wasn't Mr Goodman but some other journalist, weren't you?
A. Sorry, in terms of whether it spanned outside of the royal issues?
Q. Yes.
A. Yes.
Q. We'll come back to that. In paragraph 18 you identify the total of nine rogue numbers being used by your two suspects, who at that stage were Goodman and Mulcaire. Can I ask you about paragraph 24, where you're referring to the serious threat to life presented by terrorist threats. To what extent did those considerations impede the investigation before 8 August 2006?
A. They were in my mind throughout the time between April and the August period you mention inasmuch as in the first instance I was a senior investigating officer responsible for a number of those investigations. I think the term I think the number of 50 plus investigations at the beginning of this investigation moving through to somewhere close to 73 by the end of December 2006 I was absolutely cognisant of because as a senior investigating officer I was responsible for a number of those investigations during that period, and whilst undertaking those duties, I was also in and out of the country where those investigations took me. So in terms of my responsibilities as a senior investigating officer for terrorist investigations along with this investigation, this was part of my workload if you like as well as other terrorist investigations at that time.
Q. Was the position this: at the time Goodman and Mulcaire were arrested on 8 August, you had all the evidence in place which you believed to be necessary to effect those arrests; is that right?
A. Yes.
Q. And that was notwithstanding all the other pressures you were under, is that also right?
A. That's correct.
Q. Can I move forward, please? You explain the position, paragraphs 29 to 31, in relation to unifying the individual rogue numbers of Goodman and Mulcaire with your victims. In your own words, what did you need to do pursuant to that exercise to obtain evidence which in your view would satisfy the criminal standard of proof?
A. What I needed to show was the fact that in the case of Goodman and latterly Mulcaire they were in possession of some telephones, and from those telephones they were ringing up our victims, they were ringing up the unique voicemails or the direct telephone numbers, simple as that. Now, we undertook a process through I think May, June time which is the experimental process, if you like, to try to prove the sequencing of a voicemail message being left, a voicemail message being accessed by a rogue telephone number before it was opened by the intended recipient and who actually did that at the time. So the process we went through was obviously with Jamie Lowther-Pinkerton and Helen Asprey, and this was a test period of a number of weeks, to actually prove that sequencing, in terms of proving the unopened envelope, if you like. In terms of the process, the process we needed to do was to prove potentially that in the case of Goodman the home telephone number of Goodman was in Clive Goodman's hand at the time. It wasn't in Mrs Goodman's hand or it wasn't in Mr Smith's hand, who may well have happened to be at Mr Goodman's house at the time, because those are always the issues that I as an investigator would clearly look at, because through experience there was
Q. Through an abundance of caution. This is lines of defence some people raise, is it?
A. Absolutely.
LORD JUSTICE LEVESON
Yes, but you put together a circumstantial case which blows away the suggestion that this telephone was suddenly used by a guy who said, "Can I borrow your phone?" in the pub.
A. Absolutely right, yes. Yes.
MR JAY
I think, if I can cut to the quick, there are possibly two stages. In order to prove an interception of a voicemail, you have to prove that the phone number has been accessed for or been rung for sufficient period of time that the voicemail itself is being accessed. That's about 9 or 10 seconds, is that correct?
A. We took some advice with regard to this and Mr Bristow supplied some of that advice, as did the Crown Prosecution Service, who we spoke to throughout the investigation. To potentially prove the existence of a voicemail in the first instance, clearly we would need to say there was a voicemail in there. Secondly, to prove potentially the fact that somebody had gone into that voicemail and listened to it, actually opened the envelope, if you like, and listened to it, the expert was saying to us this was probably between the 10 to 14 seconds, and that simply was based on the fact that when you or I listen to our voicemail messages
Q. It takes that long to get in?
A. We get a blurb before that, before we actually listen to what I've actually tried to listen to in the first instance. That's just 10 to 14 seconds.
Q. I think we can agree, Mr Surtees, that you have to get to those 10 to 14 seconds before an offence is committed, but as soon as you go beyond the 10 to 14 seconds, the inference is that someone is listening to a voicemail rather than there being nothing in the mailbox. Would you agree?
A. Yes.
Q. Then there's the second point, which is the technical legal argument which we've already looked at, as to whether it's necessary to prove that the listening is occurring before the intended recipient is accessing, and that is something that you pursued along with Mr Bristow, who was your expert adviser; is that right?
A. Yes. Throughout the investigation, even up to August, September time, that advice remained the same from the Crown Prosecution Service.
Q. I've asked this question of Mr Williams, but I'll ask it of you. That's true of the direct offence under section 1 of RIPA, but for a conspiracy offence under the Criminal Law Act you wouldn't have to prove that, would you?
A. I don't think so. I think what we'd need to prove is some guilty mind and a guilty act.
Q. Thank you.
LORD JUSTICE LEVESON
Overt act to prove the substantive agreement, and if somebody's got hold of the PIN number of an owner of a voicemail, mobile telephone, then that's not an overt act.
A. There are various things I would rely on as an investigator to evidentially put to a suspect in that type of instance. I guess very straightforwardly I would need to prove that either somebody who was receiving information or instructing others to carry out activity on their behalf either knew when they received that information or gave that instruction what they were participating in was an illegal offence.
MR JAY
Thank you. Move forward to paragraph 35 of your statement which on the internal numbering is page 16. It starts at 04170. I'm not quite sure where paragraph 35 is going to be precisely, but I hope we'll be able to put it on the screen. 4185? It's the identification of customers who were outside the purview of the royal household. It's Mr Clifford and HJK. This was in May of 2006. At that point did you begin to suspect that these activities may be going beyond Mr Goodman?
A. Yes.
Q. Why was that?
A. I don't precisely know the timing of this. We were informed through our contacts within O2 and Vodafone of some potential or some suspicious activity with a guy who was ringing into O2 using the name Paul Williams and attempting to change PIN numbers. This was recordings that O2 had had to their various customer service centres that they thought was suspicious activity and that came about as a result of the conversations and the contacts that I and others within the investigation team were having with them at that point. I don't know precisely it will be in the documentation when I was informed of the Paul Williams position, but here we have an expansion, if you like, beyond the royal household. I was cognisant to the fact that we have a royal editor from the News of the World.
Q. Can you ask you this, Mr Surtees: did anybody carry out a study, if that's the right word, of the sort of pieces Mr Goodman was writing in the News of the World?
A. There was at a very early stage before I joined this investigation by Phil Williams, which I think started part of the investigation off, which was looking at some of the document or some of the stories that had been produced by Clive Goodman in the News of the World.
Q. Can I ask you to look at a briefing note which I think was probably for DAC Clarke's eyes. At tab 59 of the first file, which is 03028 you will have the first file. This is a briefing note that you prepared.
A. Sorry, what number?
Q. Tab 59. Because Mr Williams was away. By this point, you'd ascertained that Mr Williams and Mr Mulcaire were the same person. At the bottom of the page, various checks in the investigations are recommended, going to be carried out in relation to Mr Mulcaire. The inference you draw as to the conspiracy between Goodman and Mulcaire is the top of the next page, is that right, Mr Surtees?
A. Yes.
Q. And then other victims, Mr Clifford and HJK are mentioned. You say: "This investigation was undertaken by the ATB for the reasons outlined within this decision log. The physical risks to the Royal Family cannot be underestimated and as such anything other than a CT that's obviously counter terrorist?
A. Yes.
Q. investigation into the unlawful access would be unwise. The wider issue, however, is somewhat different, as the potential terrorist risk to private citizens does not fall into the counter terrorist portfolio. That does not mean that it shouldn't be investigated because each unlawful interception is a serious offence. I have briefed DAC Clarke and others into the widening aspect of this investigation with a suggestion that another investigative team should take the wider investigation. I await a response on this issue." Well, it goes without saying that your suggestion was rejected; is that right?
A. Yes.
Q. What reasons were given to you?
A. The parameters of the investigation were set by Mr Clarke at a very early stage. I was clear on those parameters and clearly pursued those parameters in the way in which I conducted this investigation. The issue of other victims coming into this investigation and the potential widening of it, looking back at "the potential terrorist risk to private citizens does not fall into the counter terrorist portfolio", clearly it does. I think what I was trying to get at here was here we have a switch in issues going on. The location potentially of senior members or junior members of the Royal Family is clearly a national issue in terms of national security, therefore it quite rightly fits within the confines of the anti-terrorist branch CT investigation. The tittle-tattle issue of other particular members of the public would potential fall out of the remit of the anti-terrorist branch and that's what I'm getting at there. I've suggested that at that particular point simply because we have a widening of the investigation at that point with the inclusion of Clifford, HJK, and I've had those discussions, and in terms of that, the suggestion I made, I think on 31 May that is dated?
Q. It is.
A. Has been considered and a decision has been made not to accept that at that point.
Q. It might be said it's a bit difficult to disentangle the narrow investigation into the royal household and any wider investigation that if there is going to be a wider investigation, it should be kept in the same place, as it were, rather than have two investigations going on concurrently. Is that a fair observation or not?
A. Yes, it's a fair observation, I accept that.
Q. There might be a reason why it was kept within SO13.
A. Yes.
Q. We can ask Mr Clarke tomorrow.
A. Absolutely.
Q. Can I ask you to look forward to tab 79.
LORD JUSTICE LEVESON
We're just passing tab 60. It doesn't matter, but it does say: "Itemised billing on the suspect numbers would show calls into the relevant retrieval number including dates, times and durations." All right, tab what?
MR JAY
Tab 77 first, which is 03104. You have a cabinet minister whose phone has been accessed, and what you're saying here is this is a reason for accelerating what you call executive action, namely arresting Goodman and Mulcaire; is that right?
A. Yes. I think I refer back in my decision log around this challenge, if you like, between extending this investigation and prolonging the investigation to include the widening aspects of it, and I talk about the actual challenge that that presents to the investigation inasmuch as it would continue to expose potential victims to continued interception. My primary concern at that particular point is the continued exposure of both Royal Family, cabinet ministers, because of the national security implications of that, and the fact that we now have, as well as the Royal Family and I appreciate the vast majority of the Royal Family issues or access is servicing news stories the fact that we now have a cabinet minister causes me more concern with regard to this national security aspect. I need to be able to stop this. Because if I allow this to continue for a number of weeks whilst trying to widen any investigation, I continue the exposure potentially to cabinet ministers and others.
Q. So to be clear, Mr Surtees, the widening of the investigation would obviously have embraced widening the victim pool, but might also have embraced widening the group of conspirators, but your primary concern was to move this to a conclusion to halt the exposure of individuals in high office to voicemail interception. Do I have it right?
A. Yes, you have, and I think there are two separate issues in terms of widening it in terms of a victim pool and widening it in terms of a suspect pool. The widening in terms of a victim pool, we would have a point at which, in terms of two defendants going before the court, we have a point at which we saturate, if you like, an indictment against them. Whether that's 100 victims within a pool that have been targeted by two suspects or whether it's in the instance seven or eight, which I think is how the indictment ended up, really matters little. I think, in terms of widening the suspect pool, that is a protracted piece of work, because we'd have to go through the whole process again of trying to identify, et cetera.
Q. Thank you. To move the story forward, I'm not hoping to duplicate evidence we've already heard, but just one piece of evidence which we haven't yet heard. At tab 81, 03109, this is seven pages within that tab, there's an email from the CPS copied in to you on 7 August 2006 on the internal numbering at page 200. It refers to a meeting, or rather speaking to counsel. You believe that was leading counsel; is that right?
A. Yes.
Q. Four lines down: "The meeting was very useful. We concluded that in essence the alleged criminal activity alleged against the suspect does give rise to the offences I have outlined. We have briefly discussed before the possibility of arguing that what we have termed our Computer Misuse Act offences might fall to be considered as RIPA offences but the issue had not definitively been argued." Is that a reference to bringing this matter within RIPA or to the technical argument about the timing of the interception?
A. The latter, the technical argument about the opening.
LORD JUSTICE LEVESON
It's the same point.
MR JAY
It's the same point.
LORD JUSTICE LEVESON
Because it brings it into RIPA if you have to open the envelope, that's only for RIPA purposes, it's not for the Computer Misuse Act purposes.
MR JAY
Because the Computer Misuse Act would be infringed even
LORD JUSTICE LEVESON
In any event.
MR JAY
In any event. The CPS continues: "I was reticent about arguing the point in this case. However, having considered the matter with counsel, we have concluded that we could properly argue the point, and in any event nothing would be lost as we already have the four main clear RIPA offences (if not more I hear!)" Do you know what that's a reference to?
A. I don't. I can suspect it's because of the ongoing material that has been supplied to us by the telephone companies through August, September, October, et cetera.
Q. So that might have been a reference to the possibility, at least, of additional co-conspirators; is that correct?
A. I think it's more with regard to the fact that we've got more information/evidence coming from the telephone companies to talk about access to DDNs and the sequencing which we're concentrating on as opposed to more suspects.
Q. I move forward to tab 83, which is 03121, which again I think is your document; is that right?
A. It is the search strategy.
Q. We see that strategy explained at the bottom of the first page: "There's an issue with the searching of Clive Goodman's office desk area within News International and that a section 8 warrant excludes the application of said warrant if it's likely that journalistic material would be found during the search. I have decided that a section 8 warrant will be sought to allow entry and search of the finance office within News International that would hold details of documents relating to payments by News Corporation International to Glenn Mulcaire. We do not seek nor do I anticipate finding journalistic material during this search. "Whilst I accept the entire finance and resource department of News International is likely to be outsourced and not located within Virginia Street, there must be an accountancy financial clearing house within the building that would receive correspondence." So what you were doing there was in order to avoid difficulties with journalistic material, focus the search on non-journalistic material; is that correct?
A. In the first instance I've set a very comprehensive search strategy. I think over 13 premises and vehicles were searched as a result of the search strategy I set prior to August 8. The second part specifically deals with the challenges around searching of News International. If we refer back to 82, which is the document from Carmen Dowd, I think from memory she actually talks about the search legislation. Whilst I'm producing my search strategy, clearly I'm aware of the limitations of the Police and Criminal Evidence Act with regard to what we can search for and where we're likely to find either journalistic or other protected material. Section 8 specifically precludes actually applying for the section 8 warrant where we're likely to find journalistic material within that search. RIPA, the offences for which we were investigating, does not carry a power of search. Thereafter, my only route left beyond section 8 is section 18, section 18(2) and (5). The reason I sought advice is because clearly I wanted the view of the Crown Prosecution Service for this. I wanted very much to get into News International, because I wanted to search the desk, I wanted to search the financial areas, I wanted to find evidence around who was involved in this illegal activity. The advice given back was that section 8 was very difficult and it was unlikely to succeed and we may well be breaching at that point where we were likely to find journalistic material. I saw that advice and I justified obtaining the section 8 warrant on the basis of what I put into my decision log on the basis that I thought I'm likely to find not journalistic material in the areas that I'm going to search; I'm going to find financial material. So despite suggestions that it would be difficult under section 8 and potentially not possible, I thought there was a way for us to do that and I sought that route and obtained the section 8 warrant.
Q. In the event, owing to what happened on the day, is this right, the search was limited to the desk only and did not cover that which was the subject of the warrant as set out in tab 83; is that correct?
A. There was some real difficulty in conducting the search at News International. There were I think four of my officers who actually got into the premises before News International barred the rest of my officers from going into News International. We got to the desk of Goodman, we seized some material from the desk of Goodman. There was a safe on his desk, which was unopened. My officers were confronted with photographers, who were summonsed from other parts of News International, and they were taking photographs of the officers. A number of night or news editors challenged the officers around the illegality of their entry into News International. They were asked to go to a conference room until lawyers could arrive to challenge the illegality of the section 18(1) and 18(5) and section 8 PACE authorities, and it was described to me as a tense stand-off by the officer leading that search. The officer tried to get our forensic management team, our search officers into the building. They were refused entry, they were left outside. Our officers were effectively surrounded and photographed and not assisted in any way, shape or form. That search was curtailed. Some items were taken. The search did not go to the extent I wanted it to.
Q. I've been asked to make this clear on behalf of News International, that insofar as you look at paragraph 47 of your statement, Mr Surtees, the fourth line, you can see this, that Detective Inspector Pearce was concerned at the time that News of the World staff may offer some form of violence against the small police team in the building, that the clear position of News International and indeed their lawyer is there was no question of any threat of physical violence. Would you accept that?
A. Very difficult, on the basis that I wasn't there, I was simply speaking to my officers at the scene. It's very difficult for me to take a view either way. The information that was relayed to me is in my statement.
Q. Okay. It's clear from the
LORD JUSTICE LEVESON
Whether or not you were entitled to do all you sought, if you had a warrant to do certain things, to do certain of what you sought, you were entitled to do it.
A. Yes.
LORD JUSTICE LEVESON
Did you get it done?
A. No. Section 19 of PACE, of course, allows us to seize any evidence whilst we're legally on premises that we think is pertinent to any criminal activity.
MR JAY
Was any thought given to returning on another day with a larger team of officers and properly executing the warrant?
A. I think the moment had been lost with regard to the information we sought. It, I think, had gone, quite frankly.
Q. Implicit in that answer, Mr Surtees, is that News International might have hidden or destroyed incriminating information. Is that what you're suggesting?
A. Yes.
Q. Which is obviously a point which cuts both ways, because it would well, it goes without saying that it would increase if you had that level of suspicion about News International, that level of suspicion might take you into suspicion that others in News International were involved in this conspiracy. Do you see that?
A. I do.
Q. Can I ask you about the compilation of tab 94, which is the list of those potentially compromised. We may understand some more about it if you look at tab 93. 03171, which again is your document, isn't it, Mr Surtees: "Having reviewed the material seized at the address searches it is clear that there is a wealth of sensitive documents relating to hundreds of individuals, including royal household, Members of Parliament, sports stars, military, police, celebrities and journalists." Can I ask you this: did you personally conduct any review of the material?
A. I saw the Blue Book in its various stages of completion, so yes.
Q. Did you see any pages of the Mulcaire notebook?
A. I don't recall seeing any pages of the Mulcaire notebook.
Q. At some later stage this is after 8 or 9 August 2006 did you have occasion to look at the Mulcaire notebook?
A. I don't know whether I did or I didn't. I can't recall.
Q. When if at all did you become aware of first names, the corner names, the top left-hand side of relevant pages of the notebook?
A. I think in terms of notebook, I'm not familiar with a notebook. What actually was recovered was quite a lot of loose A4 pieces of paper, and I describe them in this decision log as research in various forms of completion, and they ranged from simply first names all the way through to first names, surnames, account numbers, addresses, DDNs, telephone numbers, et cetera, et cetera. So I don't recognise a notebook, because I don't recall actually finding one or seeing one. I do recall lots of loose-leaf A4 pieces of paper, as I've said, with various stages of research on, and I think I refer to that within this decision. I see that through the process of I think it's probably from August 9, 10, onwards. I firstly negotiate a group of officers, I think somewhere in the region of 20 or 30 officers, who I negotiate because they're not anti-terrorist branch officers because they're all busy doing Operation Overt and everything else. They're Special Branch officers, they're vetted to the highest level, and it's those officers, I negotiate their overtime, because they're working through weekends when they should be off, and they work through I think for a period of five to seven days to go through all of the documentation, and with that they're briefed by me at the beginning around what I want them to do with that in the first instance, which is to ascertain whether there's anything to undermine or assist the police case with regard to Goodman and Mulcaire, because by then we've charged both Goodman and Mulcaire and my obligations under CPIA kick in. Is there anything to undermine or assist? Is there any evidence around any other people on these documents? They're given that brief and they work through that for the next five to seven days, and that's what makes this document which is now known and referred to as the Blue Book. That is added to days and weeks later with various bits of information that is supplied by the telephone companies as well.
Q. Is the version we see under tab 94 the final iteration of the Blue Book, with the 418 names or 419 names?
A. I'm pretty sure it is.
Q. Can I ask you one point on this decision log because you've accurately summarised a lot of what is contained in the book. Look at the second page, level with the upper hole punch: "To establish the full picture as to whether individuals have been intercepted or the amount of times they have been intercepted all of the airtime providers will need to search their databases to give us those details." Could you explain what that was a reference to?
A. Yes, and this comes back to an earlier conversation where I was explaining perhaps very badly the process that we had to go through to establish that evidence. To establish a full picture as to whether individuals have been intercepted and the amount of times, the airtime providers would need to go through their databases. What I have is I have the DDNs now of some people. I have the DDNs on these documents and I need the airtime providers to tell me whether some rogue numbers or any other numbers have accessed that, and this is what I was trying to explain right at the beginning. Here I have just what I was talking about. I have a start point, if you like: telephone companies, can you tell me whether anybody's accessed these DDNs, please?
Q. Was this something that you were intending to do at the time this decision log was completed?
A. Yes. But indeed through the days and weeks following this that was done in various guises, because as I said where you see the numbers in this Blue Book on the right-hand side in the columns to the right, those numbers, if you like, have been added as a result of that action. So where you see sort of randomly 1, 9, 11, 4, 5, that is where the telephone companies have supplied the information I was talking about.
Q. So if, for example, we look this is the third column from the right in the Blue Book, is it?
A. No, it's the two columns that are on the right. It's the far right column and the one in from the far right column. So the first time you see a number appearing is number 9 on page 2.
Q. So what is that 9 a reference to, Mr Surtees?
A. That is the telephone company is telling us that somebody had gone into the DDN of that particular person nine times.
Q. This is the footballer, nine times?
A. Yes.
Q. But it's not telling us from which phone number that person is calling into nine times?
A. The top of the book, if you go back to page 1 of the book, look at the very badly copied tab at the top.
Q. Yes.
A. I think from memory that is likely to say either Goodman or Mulcaire in terms of those accesses. So that's telling me either Goodman or Mulcaire has done that nine times.
Q. Is this right, the enquiry did not go beyond Goodman or Mulcaire?
A. As I explained right at the beginning, it's very difficult because I didn't have telephone numbers to actually start point at.
Q. Okay, so the picture was being built up with reference to the rogue numbers you knew, namely the nine rogue numbers we've referred to earlier, but it wasn't being built up with reference to any other rogue numbers?
A. No.
Q. Is that right? Although you did know in relation to some, if not many, of these victims that people were phoning in from the News of the World hub number; is that correct?
A. I know the News of the World hub number was ringing into DDNs in treble figures, ie hundreds of times, yes.
Q. And that was in relation to people who were not, as it were, in Mr Goodman's natural habitat, namely the Royal Family and those associated with it; is that correct?
A. That is correct, yes.
Q. Okay. So is this right, that that sort of information was fuelling your suspicions that others outside Goodman at News International may well be involved in this conspiracy?
A. Yes.
Q. Can I just understand your analysis of I call it a notebook, it isn't a notebook, it's the sheets of paper which is the 11,000 pages. Did this to you create a picture of a consistent trade craft, namely someone who was building up the means unlawfully to access voicemails? In some cases he'd got to last base and had acquired means, but in other cases he had only acquired some of the means to access voicemails?
A. Yes, and I think I phrase that in my decision log: "It is clear from the documents recovered from the searches conducted that Mulcaire has been engaged in a sustained (years) period of research on behalf of News International. This assumption is based on the fact that News International have for a number of years paid substantial cash payments to his bank accounts." And then I go in to talk about the various states of some of those documents and the varying stages of the research that I think they're in.
Q. Thank you. In relation to these substantial cash payments, were they limited to ?12,300?
A. No.
Q. What sort of figure were we talking?
A. I think from memory he was on a wage of ?100,000 plus per year, and I saw a number of other invoices, if you like, we found from his address where I think he was individually paid for stories. I saw at least one for 7,000, and I think there are one or two others also.
Q. Yes, but to be fair, the sums he was receiving pursuant to his monthly retainer I think he was actually paid weekly was just over ?2,000 a week in 2006. That was paid by bank transfer, it wasn't a cash payment, was it?
A. It was into his HSBC bank account, yes.
Q. But were you drawing the inference that those sums were being paid for the same unlawful activity: namely accessing voicemails?
A. Broadly, yes. What I was seeing here was an investigator. In terms of the extent of illegal activity, so for instance was his whole week 100 per cent spent in illegal activity? I don't know. I think a substantial amount of his time was spent in illegal activity, and it's difficult for me to actually put a figure on whether the whole of his time, half of his time or whatever amount of his time was put to illegal activity. There was also research activity which was taking place, as I have mentioned, with regard to the documents we found in various stages of research. Now, that may well have been legitimate, open-source research and other perhaps nefarious research that he would have been undertaking. Whether that would have breached the criminal law, I don't know. So broadly the answer to your question is: yes.
Q. Yes, I follow. You must have been disappointed, then, that in the criminal proceedings the amount of money that was forfeited was ?12,300 and that was it?
A. We had some discussions in court around that and the answer to that question is yes, I was disappointed.
Q. Can I ask you please to look at paragraph 52 or maybe before we come to 52, if we could take a short break?
LORD JUSTICE LEVESON
Yes, let's have five minutes. (3.29 pm) (A short break) (3.35 pm)
MR JAY
Mr Surtees, paragraph 52 of your statement, please. You refer to the spreadsheet which is our tab 94. About eight lines down you say: "It was also clear that on some of the sheets of paper generated by Mulcaire that he had written names on the top corner, which may have been the intended recipients of the information from within News of the World. Whilst the most probable explanation for the corner names was that journalists at the News of the World were in receipt of this information, and that they could be aware of the illegal practices, the difficulty was proving this." When did you become aware of the existence of these corner names? Can you recall?
A. Probably during the weekend and the days after when the Special Branch officers I'd tasked to go through the 11,000 or so sheets of paper had been completed.
Q. Did you not think it likely that not merely would these journalists or rather the corner names be the individuals who were, as it were, commissioning Mulcaire, but that they would also know Mulcaire's trade craft, because Mulcaire would be sharing with them the fruits of his illegal activities, namely what was on the voicemails?
A. Potentially, yes.
LORD JUSTICE LEVESON
There's no point in using him if you're not going to use him.
A. Absolutely right. I know he was supplying journalists with his product. The issue was whether or not those journalists knew how he was obtaining that product and, knowing how he was obtaining that product, were either tasking him or receiving it, or whether they were simply blindly receiving product.
MR JAY
You rightly point out at the bottom of this page: "This would have meant potentially arresting those journalists listed on Mulcaire's documents." Because obviously you couldn't have proceeded without doing this. Then you say: "To effect this, there would need to be a full scale criminal investigation sanctioned by senior officers of SO13." You're rather suggesting there or you might be suggesting there that was something you would rather have liked to have done. Is that correct?
A. Absolutely. But if I can potentially or if I can add something to that I need to stop saying "potentially" if I can add something to that, yes, I would have liked to have done that, but I was an SIO on a number of terrorist investigations, I was part of the management team and was aware of, by that point, the 70 or so major terrorist investigations that were taking place. I was part of them. So in terms of what I would have liked to have done coupled with my obligations and the seriousness of the investigations I was involved in, I knew where my priorities lay, and those were with the issues of serious threat to life investigations. That's where I needed to be and that's where my staff needed to be.
Q. Did you consider and discuss with your senior officers the possibility of a more limited investigation in the first instance, namely target the most senior journalists, arrest them, see what can be done with the call data, because you'd be able to find out their mobile phone numbers or other relevant numbers, and just see what the fruits of that enquiry might reveal?
A. I can't remember exactly the extent of the conversations we had at this particular time, which would have been around the late September/October time of 2006, but certainly having had the Blue Book compiled and having had the documents that were gone through and the information with regard to potential journalists at the top corner of some of those documents, the extent of the conversations I had around scoping a possible investigation in the future and the extent of what that investigation would look like, I can't remember the exact details of that. I certainly can't remember going into we could have a major investigation or we could have a smaller investigation.
Q. I understand. In paragraph 56, towards the bottom of that paragraph, you say that you: contacted several potential victims to inform them that their phones had been illegally intercepted and to request they provide statements and assist any future trial. One of these victims was Tessa Jowell. All of the potential victims declined to assist us with the prosecution." Did they give any reasons?
A. Most of the conversations were greeted with shock, incredulity and surprise. I can't remember specifically whether one person said something or another person said something else. It resulted in me asking them whether they would support an investigation, ie supply a statement to me to say that, "I didn't give anybody permission to access my voicemail box", and they declined that request. I can't remember precisely how that was relayed across to me.
Q. It's important that this piece of evidence comes out, because it demonstrates that it wasn't necessarily that straightforward in all aspects of this, at least in terms of identifying victims.
LORD JUSTICE LEVESON
But in one sense that helped with one of your other problems, didn't it, Mr Surtees, because there was a pressure on you with other work, some of the victims you'd spoken to didn't really want to go down the prosecution route, but it wouldn't have been an enormous task, would it, to take your Blue Book and make sure that everybody on the Blue Book was told that there was some information to this effect, it may not be possible to prosecute it for reasons which you've explained, but they ought to be aware of that fact and take appropriate security arrangements and at least be alert. That wouldn't have been the work of officers of your rank or indeed officers of senior rank of any sort, would it?
A. I accept that. In terms of the Blue Book and in terms of the document that was produced later, which was a document produced as a result of the analysis of the electronic media, which I think came to us on 23 November 2006, in relation to both those documents, I accept that, the Metropolitan Police, could have approached all of those people and said, "Look what is on a piece of paper", or, "Look what is on a document and look how it relates to you". I accept that.
LORD JUSTICE LEVESON
Of course you could. But the value of it is that then they are alert. They can take it further if they want to, and then you have decision trees to go through about what you do, but more significantly, they can take steps to make sure that they change their numbers or whatever, because once it's out there, it's out there. Is that not fair?
A. Yes, I accept that. With the benefit of hindsight, 2012, I think everybody in the Metropolitan Police might accept that. There was a communication strategy which was devised in 2006 and it was multifaceted. It dealt with the information that was put out for offer. Two people had been arrested, two people had been charged with these offences. There was various media lines put out throughout the process: two men have pleaded guilty and then latterly two men have been sent to prison. So there were through the process of August into January 2007 a number of media lines put out and a lot of media coverage as a result of that. In addition to that, we were talking to all of the airtime providers for two reasons. One was to ensure that technically the airtime providers were doing something, were putting some remedial action in place to prevent this from occurring in the future, and I understand they did that, and simply it looks like if you have your PIN number changed, this is one example of it, you receive a text on your telephone to say your PIN number has been changed. That didn't happen in 2005, it happens now. So there was remedial action taken by the telephone companies to actually stop that. There was other action taken by them. There was also my understanding that the telephone companies for the non-four categories of victims, the non-military, royal household, MPs, police, were being told by those telephone companies that potentially their telephones had been accessed.
LORD JUSTICE LEVESON
Do you know whether they did that?
A. I know now that they didn't do that.
MR JAY
Can I just understand one aspect of the strategy for notifying victims.
A. Can I just follow up on that one point? I know now that some of them didn't do that. O2 I know did do that.
Q. Yes. I think they notified 45 individuals. Other companies did nothing. Paragraph 58, please, of your statement, the victim strategy. Your understanding of what the strategy was in relation to the four categories, the royal household, MPs, military officials or police officers, was the strategy to notify those who were, as you say here, suspected to have been targeted or was it to notify those in these four categories in respect of whom there was clear proof that their voicemails had been accessed?
A. I was very clear on the victim definition at that time, and that was where there was some evidence that somebody other than the individuals who legitimately ring into their DDNs had rung into their DDNs. If I go to the Blue Book, the examples of that would be where we have numbers supplied by the telephone companies on the two right-hand columns of the Blue Book to say there were suspicious activity, ie there were rogue numbers accessing the DDNs/UVNs of those people. I was clear on that.
Q. So is this your evidence, that even in relation to these four, as it were, security categories, there would have to be evidence of unlawful activity as evidenced in the Blue Book rather than the mere fact that they were in Mulcaire's papers?
A. In terms of the strategy that was set at that time, yes.
Q. Okay. Paragraph 65, please. Having set out earlier in your statement all the competing considerations which you've given oral evidence about: "Consequently it was made very clear that, given the unprecedented amount of operations currently live within SO13 and the huge demand this was having on the CT command, this matter was not to be investigated beyond the original parameters." Can you remember when that decision was made, Mr Surtees?
A. Not specifically, but it would have been end of September into October of 2006.
Q. Is it your understanding it was made by DAC Clarke?
A. Yes.
Q. Were you present at a meeting where that was discussed or was the decision as it were communicated to you subsequently?
A. I can't recall being at a meeting. I think the decision was subsequently communicated to me.
Q. When it was communicated to you, what was your reaction?
A. As I've already said, I was fully aware of the vast resource requirements on the counter terrorism command at that time with regard to the 72 investigations. I was aware of that because I was leading a number of those, and involved in a number of others. Had I been concerned about the legitimacy or otherwise of that decision, I would have taken that elsewhere. What I mean by that is I clearly am alive to the fact that we have got lines of investigation that had not been pursued in this case. The lines of investigation could have been pursued, and, as a detective, I would have liked to have pursued them. If Peter Clarke had made a decision based upon resource, and my experience at that particular time was that there was lots of resource, and I thought the decision was perverse, then I would have taken that elsewhere. That was absolutely not my position when the decision was communicated down to me. I was fully aware of where we were within the anti-terrorism branch or counter terrorism command at that time.
Q. In relation to the correspondence with Burton Copeland and their response to your requests for information, was it your view that News International, through their solicitors, were co-operating or not?
A. No, it was my view that they weren't co-operating.
Q. Were you asked to put together, as it were, a briefing pack for DAC Clarke to enable him to reach an informed decision on this important issue?
A. With regards to August/September time or
Q. No, this is September/October time, keeping the investigation within the original parameters, which means not expanding it to include the possibility of bringing in other individuals.
A. I don't recall putting together a briefing note as such. And I don't know whether that decision was based upon a verbal briefing delivered or whether it was delivered in a written format. I don't recall doing the written format. I certainly remember having conversations with Phil Williams, Tim White and others, including Peter Clarke, through this investigation. Specifically the late September/October time I don't recall the form that briefing took.
Q. When you say in paragraph 69 of your statement, towards the end of it, that consideration was given to outsourcing the outstanding aspects of the investigation to another MPS specialist department, was that something which you were keen to achieve or not?
A. Yes, that was a solution that I was putting forward. As I'd already documented in my decision log earlier in the proceedings, I think around May time, 31 May, from memory, I proffered that as an option/opportunity. Again in the latter part of the investigation, September/October time, I was clear, of course, at that time the levels of police resource that were being absorbed by the anti-terrorist branch to fulfil our obligations under current investigations. For instance, both in Op Overt, which was the August 2006 issue, all of the surveillance resource in London and the vast majority of the surveillance resource across the country was used on this operation. Now, what that meant in real terms was that other criminal investigations, such as serious organised crime, armed robbery, professional standards investigations within the police, fraud investigations, would not have that resource for a considerable length of time. This was the reality of what was occurring in 2006, and I was fully aware of that. In addition to that, we had a whole lot of other investigative resources on loan to us. I think at the beginning of 2006 it was probably somewhere in the region of 750 to 1,000 officers over and above ours. I think as we went towards the end of 2006 that diminished slightly, but it was a constant ebb and flow of requests, both within the Metropolitan Police and outside, for resource to support anti-terrorist branch investigations. So I could understand Peter Clarke's challenge of going again to ask for more resource with regard to this investigation.
LORD JUSTICE LEVESON
That takes you back to the issue that we've just mentioned. If you can't go further forward with it, don't you have to do your best to ensure that you got the very widest benefit from the work that you have put in, first of all by ensuring that everybody knows about it who might have been affected, might have been affected, and secondly, that the organisation which you believe has been the hub of instructing this private detective has demonstrably sorted itself out, if I can just put it colloquially, and that wouldn't have taken a great deal of police resource?
A. No. On the first issue, I accept the organisation could have taken a different tactic, if you like, and tasked to go to a number of persons of interest I won't term them victims persons of interest, if you like, and inform them of that. With regard to the second piece, the communication strategy, if you like, and the actions that we'd taken with regard to News International I think delivered the message to News International very firmly that either we have individuals within News International certainly we have individuals within News International who were engaged in sustained periods of criminal activity. That was borne out with the prosecution, it was borne out with the opening that Mr Parry on behalf of prosecution led on. I have considered the issue of whether or not we would go to News International and have a conversation, and if we'd done that, it may well have been viewed cynically. Had we done that in 2006, for example, I don't know whether we would be sitting here in 2012 trying to answer
LORD JUSTICE LEVESON
Maybe you would, but then you would be able to say, "Well", as you've just said, actually, "counter terrorism, armed robbery, the resource is not limitless, so we're doing the best we can."
A. Yes.
LORD JUSTICE LEVESON
Certainly you'd have been able to say, "And my God, when they started to talk about a single rogue reporter, we put them right. We didn't feel that this was doing justice to the work that we'd done and they knew about."
A. I accept that.
MR JAY
Can I ask you about one specific document, tab 157 of file 3. 03823. This is a report from the Directorate of Professional Standards which relates to an interrogation of one of Mulcaire's computers. Is this a report which you saw at the time, Mr Surtees?
A. Yes. I think it was delivered to us either the week the two defendants, Mulcaire and Goodman, pleaded guilty or the week before they pleaded guilty. It was somewhere around 20 November 2006.
Q. The week before since it's dated 23 November and the guilty pleas were
A. Yes, I have seen it and it does relate to a number of computers, not just one.
Q. Can I ask you, please, to clarify two points, really. If you look at the second paragraph on the first narrative page of the report under "Tasking", where it sets out the background: "Two individuals who were obtaining details of mobile phone messages [et cetera]. Attempts have been made to obtain personal details of one politician and Commander Paddick. It is also believed attempts may have been made to corrupt serving police officers and misuse the Police National Computer." Could you explain that to us, Mr Surtees?
A. No, I can't. All I can suggest is that the task has been handed to the officer from the Department of Professional Standards by one of the exhibits officers within the counter terrorism command, DC Hills, who has made various assumptions and briefed on that basis. That's all I can assume this is. The investigation from December 2005 through to August 2006 and beyond that was a very, very tight investigation. There were very few officers who were involved in that who knew the details of what had gone on. Hence when I opened this up to the 30 or so officers who went through and populated the Blue Book, they were developed vetted staff officers. Throughout this investigation and beyond, into 2006, there was a tight investigation, the details of which were known by very few people. What I have here and I can assume is that DC Hills, who wasn't part of that, has briefed the officer from the Department of Professional Standards, put some context around this, and that's what the officer has written within this tasking. It's not significant I recognise with regard to the investigation.
Q. There were names though in the project list, as it were, that according to Detective Sergeant Maberly were on the witness protection programme. Is that something you knew about?
A. Yes. It was brought to my attention that some names here within this document may well have been from the witness protection programme. What I instructed DS Maberly to do was to contact the witness protection unit, get them to come across to our office, show them the document, get them to look at it, and if there were any risks to people they were protecting, take whatever mitigation they needed to take to protect them. I didn't ask or seek information from the witness protection people around the quantity or individual details of who
LORD JUSTICE LEVESON
Not individual details, but weren't you interested to know whether it was in fact the case?
A. I knew it was the case on some of them because it was quite obvious it was the case.
LORD JUSTICE LEVESON
Didn't that itself create an enormous issue for you? This must be among some of the most confidential information that's held.
A. Yes, and the officer from the witness protection unit was best placed to take whatever remedial action needed to be taken in regards to that. In terms of the provenance of the information, that also concerned me, yes.
LORD JUSTICE LEVESON
But you didn't do anything about that.
A. I had conversations throughout May, June, July and August in terms of the investigation. I had conversations August, September, October, November with regards to the various drips of information that were coming through, and briefed those up.
MR JAY
But in that context, if the conspiracy was limited to Goodman and Mulcaire, there would be concern but there wouldn't be enormous concern, but if the conspiracy went wider, as you suspected it did, to others at News International, that concern would be multiplied, wouldn't it, in relation to possible prejudice to those on the witness protection programme?
A. Witness protection programme, access to government ministers, access to military, right across. There were lots and lots of concerns, yes, including the witness protection issues, yes.
MR JAY
I think I'll leave it there, Mr Surtees. Thank you very much.
LORD JUSTICE LEVESON
Thank you very much, Mr Surtees.
MR JAY
The final witness for today is Mr Maberly, please.
LORD JUSTICE LEVESON
Very good. Apparently he's in the annex. I hope he's not been keeping away because in criminal cases witnesses aren't in court.
A. No, sir, he was fully aware.
MR JAY
We'll wait then.
LORD JUSTICE LEVESON
We'll wait. We'll stretch our legs for two minutes. (4.05 pm) (A short break) (4.07 pm) MR MARK MABERLY (sworn) Questions by MR JAY
MR JAY
Your full name, please, Mr Maberly.
A. My name is Mark Maberly and I'm a Detective Inspector with the Metropolitan Police Service.
Q. It's Mr Maberly?
A. Yes.
Q. Your rank, please, in March 2006 when you were working within SO13 was?
A. In 2006 was Detective Sergeant.
Q. Thank you. In relation to Operation Caryatid, what was your role, please?
A. I was the case officer.
Q. As its name might suggest, you were hands-on dealing with the evidence as it came in and progressing the case, is that broadly right?
A. That's right, carrying out the instructions of the SIO and the IO.
MR GARNHAM
Forgive me for interrupting, I know you were very anxious to know when the statements were free to go onto the Inquiry website. They have now all been checked and are in that state, and since there are people behind who are keen to see them, I thought I'd let you know straight away.
LORD JUSTICE LEVESON
Thank you very much indeed, Mr Garnham. Possibly we could send a message to make sure that that should be done as soon as possible. I am conscious that today, unfortunately, not only there has been that hiatus, but for part of the day, although no longer now, the web streaming has failed.
MR JAY
Yes. Mr Maberly, I have failed to introduce your witness statement, prepared as it was for the purposes of the judicial review proceedings and not this Inquiry, but it's dated 30 September, signed by you and under a standard statement of truth, so it's the evidence you formally gave within those proceedings; is that right?
A. Yes, sir.
Q. Mr Maberly, I'm going to focus on a few discrete points rather than go through the history, because we've got the history substantially through your colleagues. Can I just ask you though to clarify two of the technical issues? In relation to Vodafone, we've heard reference to something called vampire, which is separate from the standard call data which I think you can get from a telephone provider. So that we're clear about it, what is vampire?
A. My understanding of vampire data is that it was an engineering or a diagnostic tool that Vodafone use to see how their systems were running, including their voicemail systems. And in the process of doing so, it collected and captured information in relation to people's accounts.
Q. What sort of information?
A. Information would include when a message is left, when that message is opened, but I think the significant issue in relation to vampire data is it didn't last very long and it required the company to sort of harvest it on a regular basis.
Q. And the length of time or rather the time when it would expire and you could no longer do the harvesting, was that one year?
A. No, I believe it was much shorter than that. I think what you're referring to is at the time there was a requirement on mobile telephone companies to keep their call data for a six-month period. Some of the companies kept them for one year, but in relation to vampire data, there was no requirement on them to keep that data, and it's something that, as I said, it was an engineering tool. It ran constantly in the background. But if I gave you a date, I would be guessing, but my impression was it was a matter of days, maybe a couple of weeks.
Q. In relation to the standard call data, we've had evidence that it is rare for people to phone into their mobile phone voicemails from another telephone. Most people access their voicemails, as I do occasionally, from the mobile phone itself. Is that your understanding?
A. The majority of people, on most people's handsets, they press and hold 1, that's a short code, and it directs them directly into their voicemail account. Probably the exceptions that you may have to that are people on contracts where they're paying for voicemail retrieval, in which case it may be more normal for them to sort of recover those from their work address, because they're not paying for it.
Q. But given that rarity, doesn't that narrow down the possibilities in relation to people phoning in to voicemails from another number? Because either the owner of the mobile phone is doing it exceptionally for whatever reason, or it's a rogue call. Do you see the point?
A. I do, and I think it's clear that there is a difference in the kind of voicemail interception that was being that we believe was carried out by Mr Mulcaire, in that his was a more sophisticated form of voicemail interception. You may hear sort of Fleet Street folklore about something that they call double whacking, and I'll provide that as another example of how voicemail interception could happen in that if I ring your phone and engage it, and then another person rings your phone, they're directed into your voicemail. There is with some of the telephone companies a prospect then of interrupting that voicemail message that you receive and then being diverted into the voicemail account and putting in a PIN number. So that's double whacking, and you probably wouldn't be able to do that for too long because there's only so many calls that you could get from someone at the gas board or other spurious calls which would engage your phone before you would catch on to that. But the method of voicemail interception that you had from Mr Mulcaire was a much more sophisticated form of voicemail interception. He was changing people's PIN numbers, he was resetting those by calling into the service providers. He had knowledge of their the language that they would use, for instance. O2 would talk about direct dial numbers. Vodafone were different, they had unique voicemail numbers, and it was clear that he had a knowledge of different company systems in order to be able to do so.
LORD JUSTICE LEVESON
But could you retrieve data that identified that an outside call had been directed to voicemail and then identify the number of that outside call? I'm not talking about me necessarily knowing it about my own, but my service provider?
A. I was not aware I don't recall the telephone companies telling me that they would be able to track who had been listening to the voicemails through that method. I think it's almost impossible to know if someone is calling someone and they're listening to their messages, because that would just show as a call to that person's voicemail number.
LORD JUSTICE LEVESON
But you would be able to tell what calls were made and directed to voicemail, even if you couldn't necessarily know that it had been for the purposes of accessing voicemail?
A. I think that's why we needed to concentrate on this vampire data, because it's only through that kind of information that person A was leaving a message on person B's voicemail, and someone else was coming in to retrieve that, that's what vampire data provided us with, that kind of background information.
MR JAY
Thank you. Can I ask you about paragraph 9 of your statement.
A. Could you remind me which binder it should be in?
MR JAY
That one in front of you.
LORD JUSTICE LEVESON
Behind divider 6.
MR JAY
Which file is that?
A. This is file 5.
Q. Yes. Divider 6.
A. Yes, and paragraph?
Q. 9. On the internal numbering in the bold it's 113. You say, level with the upper hole punch: "DC Green and I made a number of applications for phone data and this predominantly centred on the nine identified numbers that Goodman and Mulcaire were identified as using." This suggests that your enquiries went beyond those nine rogue numbers; is that right?
A. That's correct. We were looking at other potential numbers at the time. I can't give you details of these from memory. What I would say is that in addition to our investigation, Vodafone and O2 were carrying out their own assessments of their systems and who potentially was accessing voicemails. I'm aware of at least one number that O2 flagged up that they'd identified as potentially accessing customers' voicemails. From recollection, when we did research on that, it was an unregistered mobile number, and I believe it was there was a similar case with Vodafone as well at the time.
LORD JUSTICE LEVESON
That all could be sensible trade craft so it couldn't be traced back, wouldn't it?
A. Exactly that, sir. What I would say is that none of the phone companies flagged up to us that they had a large amount of incoming calls to voicemails that they'd traced you know, the rogue numbers that we provided was where the bulk of our information came from.
MR JAY
Can I ask you about paragraph 22. We can look at the underlying document if it's necessary, but it may be it isn't. You say: "On 10 July I received data from a billing request in relation to a PJ Williams On examination this data contained calls to the unique voicemail numbers for JLP and HA amongst other members of the royal household. Other unique voicemail numbers contained within this data were to be identified later in the enquiry." Can you remember whose those were?
A. Not off the top of my head. We put in a number of applications to the service providers. Initially they had difficulty, and some of our applications had to be submitted several times because they were saying that number didn't exist, when in reality it was a voicemail number.
Q. Were these unique voicemail numbers which went outside members of the Royal Family and therefore included victims in a different category?
A. That's correct, yes.
Q. When were those numbers identified?
A. I can't say off the top of my head, but as and when we put in the applications, we would have received the results back over a number of weeks. Because this wasn't a threat to life enquiry, we were just on the standard return rate for our requests.
Q. After 8 August, when you compiled the list of those potentially compromised, our tab 94 with the 418 or 419 victims, did you start to obtain data which related to any of those potentially compromised victims?
A. We carried out an analysis of the billing data in our possession. Over a period of time, Mr Mulcaire had a number of different office numbers. We looked at those. We also looked at the 5354 number that was the hub number for News International. They also had another number that ended in 312 that was a very similar it had the appearance of a mobile number, but again it was another hub number, and the explanation I received at the time from our telephone expert is that it was least-cost routing, so by doing it through this central hub number it saved News of the World money. However, it did cause us difficulty in then identifying who was the other person at the end of that phone.
Q. Of course in relation to the News of the World hub phone, the 5354 number, I've spotted now the 312 number does look like a mobile phone number, but you tell us it isn't. That could be anybody within the News of the World; is that right?
A. Exactly that.
Q. Did you make any enquiry with telephone providers as to whether or not it was possible to ascertain who it might be within the News of the World?
LORD JUSTICE LEVESON
Or whose desk the phone might be on? You don't ever do that.
A. Yes. We that was part of the conversation that we had with Mr Bristow, our telephone expert, and I believe that we also made enquiries with Vodafone, it was on their network, the 312 number, and we were told that we would have to get that information from News of the World, News International.
LORD JUSTICE LEVESON
But that suggests it was available to them.
A. The advice that I had from Mr Bristow is that no large firm would have unaccounted for billing. For instance, if you had someone at a particular desk, a lady that was calling her boyfriend in America on a daily basis, they would want to know why there was billing data for thousands and thousands of pounds why these calls were costing thousands of pounds, sorry. So there was an expectation that News of the World, News International would be keeping that sort of that data, that information, for their own records and to make sure that no one was abusing their internal telephone systems.
MR JAY
I rather lost the thread of that piece of evidence
LORD JUSTICE LEVESON
This is all to do with getting to the desk from which calls into voicemail retrieval systems are made. Right?
A. That's correct, yes.
MR JAY
So you were being advised that it was likely that these records would exist to ascertain whose desk it was within the News of the World that was making the call; is that correct?
A. That's correct. And in later applications through BCL solicitors I think one of my requests was to ask for a list of the desk phones and diagrams as to where people were sitting.
Q. That's absolutely correct, and I think there was one document only which was provided to you pursuant to that particular request; is that right?
A. That's correct.
Q. And you must have been very suspicious at that point that you were being as it were fobbed off, to use the vernacular; is that so?
A. Definitely.
Q. Equipped with that information, you well, it's so obvious it goes without saying. I'm not going to even ask the question. If I move on, please, through your statement, I'm only alighting on points which, as it were, are new to us, because your colleagues have
A. Yes.
Q. kindly dealt with other points. Paragraph 39, an email received on 29 August 2006, which is in file 3, tab 135. Tab 135 is 03621.
A. Tab 135 is an email from Lindsey Hudson.
Q. That's right. I just want to understand the significance of this. It's a spreadsheet of other numbers called in by 2228 and 7275, and these were respectively Goodman and Mulcaire's numbers, weren't they?
A. Yes. The 2228 number related to Mr Mulcaire's office and was registered to his offices in Kempton Road.
Q. I understand, though, the significance of the next page, the list of numbers and names. What is this telling us?
A. All right, the information that you have would have been the result of a billing data request. The list of numbers that you have alongside the 2228 number, it has a list of the people that were called, their voicemails were called by the 2228 number, and the number that you have there is the amount of times that they were called. So in the case of the top line, that number there, their voice number was called 43 times.
LORD JUSTICE LEVESON
So let me understand this. That is the number that you've identified as Mulcaire's office phone
A. Yes.
LORD JUSTICE LEVESON
telephoning somebody else's voicemail, who happens to be a journalist?
A. Yes.
LORD JUSTICE LEVESON
If we take somebody who was subject to prosecution, the 2228 number, Mulcaire's office, phoned a mobile and accessed the voicemail of Mr Sky Andrew 23 times?
A. Yes. That's correct, yes.
LORD JUSTICE LEVESON
Got it.
MR JAY
What may be important as well is that the next page, which is the 7275 number, which is Goodman's number, we are solely within the royal household, save for the last entry, a singer, apparently, who was phoned once.
A. I can assist with that. I've seen the unredacted document and that particular voicemail number is one digit different to a member of the royal household, so I believe it was a misdial.
Q. That's helpful, Mr Maberly. That's giving us some idea what Mr Goodman was doing, what he was interested in and what Mr Mulcaire was doing. But I won't make it more explicit than that.
LORD JUSTICE LEVESON
They all are, because JLP, presumably, is Mr Lowther-Pinkerton, the private secretary?
A. That's correct.
MR JAY
I'm very grateful to Mr Sherborne for pointing out that to me rather late yesterday evening as I was reading this. I didn't spot it myself. Can I move forward to September 2006. We've heard that a decision was made, possibly the end of September, possibly the beginning of October 2006, that you would keep this investigation within its original parameters and not travel outside down these additional lines of enquiry. What was your view about that, Mr Maberly?
A. There were still lines of enquiry that I would have been keen to follow. In particular, I'd identified three names who, if I had the sufficient evidence, I would have liked to have spoken to. I accepted the decision that, you know, the resources were not there to widen the enquiry, and I myself was deployed on other anti-terrorist branch enquiries at the time.
Q. And these were three journalists within News of the World, were they?
A. That's correct, yes.
Q. I don't think we can be more specific than that, because we might begin to start identifying them.
A. If I could just clarify that point, I believe one of them may have potentially moved on and was part of another company at that point.
LORD JUSTICE LEVESON
All right.
MR JAY
I think we'll leave it.
LORD JUSTICE LEVESON
When you say "if I had the sufficient evidence", did you believe that there was sufficient to go a comparatively short distance to get to the state that you would have been able appropriately to interview them?
A. There would have been aspects of the case that I would have liked to have asked them about, but I had no firm evidence of either their knowledge of voicemail interception or of them tasking Mr Mulcaire. That is something that I would have looked to find before speaking to them, because it would have been the case that, you know, if we did bring them in for questioning, the likelihood is that they would have made no comment, as did the other two employees of News of the World. We would have got nowhere.
LORD JUSTICE LEVESON
But it's all a question of inference, isn't it? You put the building blocks together and
A. We had some inference; we had no evidence.
LORD JUSTICE LEVESON
Well, I'm not sure about that. Circumstantial evidence
A. Circumstantial evidence, inference
LORD JUSTICE LEVESON
is evidence, is real evidence, is usually very valuable evidence.
A. It is, but it requires something more substantial to obtain a successful prosecution at the end of the day.
MR JAY
What's your view about the significance of these what we're now calling corner names?
A. The three journalists that I was interested in following lines of enquiry, I believed that their first names appeared on some of the documents that were recovered from Mr Mulcaire's files.
Q. Had you detected a pattern in relation to Mr Mulcaire's activity, whereby he would telephone someone within the News of the World before accessing a voicemail, accessing a voicemail and then phoning that person back?
A. Certainly we believe that to be the case. The difficulty that we had with Mr Mulcaire's billing is that quite often he would just ring one voicemail after another, and in his billing data, you would just get a long list of voicemail type numbers. So it's quite difficult to judge at which point he may have obtained something interesting that he would then want to speak to a particular journalist about. It wasn't always the case that you think, hang on a second, he's listened to that voicemail for a long period of time, then the next call is it didn't always work that way, I'm afraid.
Q. I can understand it might be more complicated than that, but the person within the News of the World who he'd speak to after accessing in a case where there was evidence of accessing, would that be a person you could identify by call data?
A. In the billing data for Mr Mulcaire, there were calls by him to other journalists. We were aware in the material he had written down those journalists' mobile numbers on bits of paper.
Q. Right.
A. So from that point of view, I could identify, for example, one of these three journalists, I had his mobile number, and I was aware that that mobile number appeared in billing data.
Q. This is yes, well. This is arguably extremely interesting circumstantial evidence, isn't it?
A. I mean, call pattern analysis, which is the police term that we would refer to it by, it can be very good circumstantial evidence, but as I mentioned earlier that sort of Mr Mulcaire's billing was slightly more chaotic than that.
Q. There's one other document I'll ask you to look at. Tab 152 in file 3, which is 03765. I just wonder if you could explain the significance of this document. Of course it's heavily redacted. What, if anything, is it telling us? Particularly the second page with the various counts, as we can see them described.
A. If I just explain the fact it's an email, it's the cover, it's an email from a counterpart at O2.
Q. Yes.
A. On the front cover, the actual email itself, he's explaining that this is a spreadsheet of the DDNs as I mentioned earlier that the O2 language that was a direct dial number, so voicemail numbers. And it's the number of times that the voicemail numbers were called by the suspect number.
LORD JUSTICE LEVESON
By any of the suspect numbers. So this is you providing them with some numbers that you think you can link to people in whom you are interested, and he's telling you who they called and how many times, is that it?
A. That's it, yes.
LORD JUSTICE LEVESON
So the first one, the number was called 520 times?
A. Yes.
MR JAY
To be clear, are these the direct dial numbers of those potentially compromised in our Blue Book?
A. I'm aware of this document. Obviously the email came to me, and you'll see the rather large numbers at the top. Pretty much they relate to the royal household. Those individuals received the most attention.
LORD JUSTICE LEVESON
It depends which suspect numbers you were providing then, doesn't it? This doesn't tell us
A. No.
LORD JUSTICE LEVESON
whose numbers you'd asked them to look at.
A. That's correct, sir, yes.
LORD JUSTICE LEVESON
Yes.
MR JAY
The only other document which I'd ask you to consider we may already have covered it, but you do address it in your witness statement is tab 157, the third file, which is a report from the Directorate of Professional Standards. You make it clear that there were those amid the project names who were or you believe to be in the witness protection scheme, and you took steps to notify those who were, as it were, in charge of the scheme, and an officer from the witness protection unit came to you and you drew these matters to his attention?
A. That's correct, yes.
Q. Do you know what came of that?
A. No. That's a matter for the witness protection unit, because I wouldn't want to know who was in the scheme and who wasn't. That's a sensitive matter from a police point of view.
LORD JUSTICE LEVESON
Not just sensitive; horribly sensitive.
A. (Nods head).
LORD JUSTICE LEVESON
I mean, it must be amongst the most secretly kept data.
A. That's correct, yes.
LORD JUSTICE LEVESON
So I can understand why you'd want to look at it a bit further.
MR JAY
Did you explain to that person that those who had been, as it were, directly and unequivocally implicated in the voicemail accessing were Goodman and Mulcaire, but there might be others, and therefore the concern was, as it were, increased?
A. Who would I be addressing that concern to? Sorry, I missed that point.
Q. To the officer from the witness protection unit, because you'd want to brief that individual as to the background. You'd obviously told them, "We have Goodman and Mulcaire who are about to plead guilty on 27 November", whichever date it was, "but we must draw to your attention that there may be others within News International who are also illegally accessing voicemails and therefore the risks were compounded"; did you explain that?
A. I would have explained to him how our knowledge of the activity had been occurring, but I would have probably also caveated that by saying we do not know to whom that information was provided.
MR JAY
Yes. Mr Maberly, those were all my questions. Thank you very much.
LORD JUSTICE LEVESON
And you passed from this work in late 2007; is that right?
A. From the throughout this investigation I continued to service the prosecution until they were sentencing in January of 2007, but I was involved in other investigations throughout this period as well.
LORD JUSTICE LEVESON
Yes. Thank you.
MR JAY
Sorry, there's one other question I've been asked to put to you. It's a very short one. The Mail on Sunday were notified that four people had been targeted by Mr Mulcaire. Do you recall that?
A. I'm aware that was the case. That was my colleague, Keith Surtees, who informed them.
Q. Yes, and you were copied in to the email. Do you know why they received arguably different treatment from others?
A. This was probably a period of time when we were trying to contact potential victims of the interception. At that time we were concentrating on those who were in a position to give evidence, had been most affected, and probably where our best evidence laid in relation to the investigation.
MR JAY
Thank you, Mr Maberly.
LORD JUSTICE LEVESON
Thank you very much indeed.
MR JAY
May I raise one administrative matter in relation to tomorrow? Mr Yates is giving evidence by video-link from the Middle East. He's billed for noon. Mr Clarke, I expect, will take about an hour and a half, so subject to your view, may we take an early lunch, because it would be difficult to interrupt the video-link.
LORD JUSTICE LEVESON
By early lunch, you mean
MR JAY
It's brunch, really.
LORD JUSTICE LEVESON
Yes, we can take a break in advance of midday. We'd then need a little break in the afternoon as well, I have no doubt.
MR JAY
We will.
LORD JUSTICE LEVESON
Right. Thank you very much. 10 o'clock tomorrow. (4.45 pm)
