Morning Hearing on 01 March 2012

Peter Clarke and John Yates gave statements at this hearing

Hearing Transcript

(10.00 am) LORD JUSTICE LEVESON Mr Jay, I am concerned to hear that over the last two days requests have been made to the Metropolitan Police for confirmation of details which suggest that there have been prior disclosure of the statements of some of the witnesses who are due to give evidence to this Inquiry. I am disturbed about it not only because leaks would constitute a breach of the confidentiality agreement that everybody has signed, but also because it runs the risk of disrupting the way in which this Inquiry can proceed. I don't intend to seek to make enquiries as to these particular leaks, but if this continues, I shall review the way in which I provide prewarning to core participants of statements of witnesses, and that will not be in order to make it easier. Thank you. MR JAY Sir, yes. The first witness today, please, is Mr Clarke. MR PETER JOHN MICHAEL CLARKE (sworn) Questions by MR JAY MR JAY Thank you, Mr Clarke. Your full name, please?
A. It's Peter John Michael Clarke.
Q. Thank you. In the bundle of witness statements, which I hope is the bundle immediately to hand, I hope you'll find a copy of your witness statement.
A. Can you help me which tab it will be at, sir?
Q. I'm not sure which bundle you have. I think you have it separately available.
A. Actually, this is Select Committee reports. LORD JUSTICE LEVESON I don't think it will be in that. MR JAY No. We'll provide you with a copy. I think you had a copy LORD JUSTICE LEVESON Here we are, here's one. Behind my tab 1. MR JAY You provided a statement to the Inquiry on 31 January of this year. You signed and dated it and you appended to it the standard statement of truth. Is this your formal evidence to the Inquiry?
A. Yes, it is.
Q. Mr Clarke, you are no longer a serving officer in the Metropolitan Police, but you were an officer in the MPS between 1977 and 2008, when you retired in the rank of Assistant Commissioner.
A. That's right. I retired from the position of Assistant Commissioner specialist operations.
Q. Thank you. If we look, please, at paragraph 7 of your statement, which is our page number 00088, we can see your final, as it were, senior positions. 1996 to 2001: head of the royalty and diplomatic protection department. And then 2002 to 2008 you were head of the MPS anti-terrorist branch and national coordinator of terrorist investigations. This until 2006, I believe, was SO13; is that right?
A. That's correct.
Q. And it was renamed SO15 I think evidence we've heard was in 2006?
A. Yes it was not only a renaming, it was a merger of two departments.
Q. Thank you. You deal generally with the issue of media relations, starting at paragraph 9 of your statement at 0090. Can we seek to deal with this quite generally and then address your particular experience? You say in paragraph 9 that you don't believe it's helpful to speak of a culture of relations between the police and the media. Why is that, Mr Clarke?
A. Because in my experience there's no such thing as an overall culture. Different people dealt with the media in different ways. At local level there would be a different type of relationship to that which pertained at perhaps the central level at Scotland Yard, but even within Scotland Yard different departments, different people dealt with the media in different ways, and so I can't identify an overall culture.
Q. At a local level, although I understand you don't wish to generalise, how, if at all, would you characterise relations between the police and the press and vice versa at that level, and the purpose of those relations?
A. Well, I can draw on my own experience as divisional commander of the Brixton division in the mid-1990s. Relationships were generally very good and of course they were focused on matters of local interest, local crime, things that were happening locally, so on and so forth. Local events.
Q. Then moving perhaps more centrally when you are working I suppose in Scotland Yard itself at Assistant Commissioner level, or possibly from your time, 1996, head of royalty and diplomatic protection branch, how would you characterise, at least from your perspective, the nature of relations between police and the press and vice versa?
A. Again, that depended upon the role I was fulfilling. When I was commander of the royalty and diplomatic protection department, because of the nature of the work I had very little contact with the press indeed because general policy is that for obvious reasons one doesn't comment or discuss matters of security. But that changed quite dramatically when I went into the anti-terrorist branch where there was a very clear operational requirement, in my view, to have more contact with the media.
Q. Thank you. You discuss those matters at paragraph 15 of your statement. You explain what the nature of the contacts were in the various bullet points we see at page 00093. Those included off-the-record briefings for the CRA, formal press statements and conferences, occasional lunches with members of the CRA. Can I ask you, please, what the purpose of those lunches was?
A. Yes. Very easily. The position with regard to counter terrorism in the early part of the last decade was there was a considerable amount of scepticism from many commentators about the reality of the terrorist threat in the United Kingdom, and to my mind there was an absolutely clear requirement that the scepticism, and particularly the allegation that some were making that the terrorist threat was being exaggerated as some sort of support for British foreign policy, needed to be addressed. In discussions with the directorate of public affairs it was felt that it would be useful to have more informal meetings with groups of journalists from across media outlets, so not one particular media company represented but across the outlets, at lunches, and over the period that I was in that job for six years, perhaps there were five or six of these where we would discuss broad issues of strategy, the concept of operations that was being applied. You will remember there was a lot of criticism at one time that a lot of people were being arrested from particular communities and not being brought to trial. We felt that there was a need to rebalance this discussion to actually say that, look, there are a lot of there's a lot of very clear evidence of the terrorist threat to the United Kingdom waiting to come to court, and what we mustn't do is diminish the confidence, particularly of the Muslim communities, in the law enforcement effort to counter terrorism at that time, because obviously we needed the support of those communities, it was critical, and my sense was that that support was potentially being undermined by some of the negative comment in the media. LORD JUSTICE LEVESON So what you're explaining is a positive decision to be transparent to such extent as was appropriate or safe, to bring those who comment on these matters into the picture in a more controlled way and thereby provide some balance to the stories that would otherwise be published? Is that
A. That's absolutely right, sir, and the purpose was not to make the police look good, but to try and balance the discussion, the public discussion, so that communities could have confidence in the objectivity and the integrity of what we were doing on their behalf to try and counter terrorism. LORD JUSTICE LEVESON Is that any different from what you might have done at local level when talking to your local press when their concerns were vandalism or drunkenness on the streets?
A. Essentially no, but of course the issues were at a higher level. LORD JUSTICE LEVESON You don't need to convince me about that, but it's the same idea. It's trying to become more open and transparent and thereby bringing the press, the megaphone that the press has, into the picture to provide a more from your perspective, more balanced picture. Is that
A. A more balanced and a more informed picture, yes. LORD JUSTICE LEVESON Yes. MR JAY Do you consider that you favoured any particular media outlet we're talking about the print media here or do you consider that you were disinterested as between them?
A. I was totally disinterested as between them. The groupings were arranged by the directorate of public affairs, and if my memory serves me right, it tended to be that perhaps on one occasion we would have broadsheets, on another occasion the red tops, on another occasion the broadcast media. It worked in that way, and there were representatives there from across all the media groups.
Q. Thank you. Can I deal with paragraph 18 of your statement, where you refer to a briefing you gave to News International, and present were the editors of the Times, Sunday Times, the Sun and the News of the World. Was this in about 2004, Mr Clarke?
A. This was in the autumn of 2004, yes.
Q. Then you say: "The meeting was unexpectedly (at least to us) joined by Rupert Murdoch who, we were told, happened to be in London at the time." Can you remember in general terms what was discussed at this meeting? Was it the matters you've just told us about?
A. I can remember specifically. In August 2004 a terrorist called Dhiren Barot had been arrested together with his network and there was clear evidence there that they intended to try to construct a dirty bomb in the United Kingdom and to attack the transport network and indeed to mount attacks in America. Lord Stevens, then Sir John Stevens, was the Commissioner then. He saw some of this evidence, he was appalled by it and he directed that he and I should visit the whole range of media outlets, not just News International. We went to all the other media groups as well. We saw the editors, I think, of all the major national newspapers to explain again the reality of the threat that the country faced.
Q. Thank you. Dealing with these issues at an even higher level of generality, paragraph 20 of your statement, Mr Clarke, where you're dealing with media strategy extremely generally and you refer to slides you deployed at a conference on 7 November 2007. This is 00096. The aims and objectives included: informing the public, reassuring the public, demonstrating the integrity and independence of the investigation and preventing future prejudice to any judicial process. Is it your view, speaking generally, that the proper purpose of engagement with the press is to promote the public interest as opposed to the police interest?
A. Obviously there's an extent to which the police interest and the public interest overlap, but overwhelmingly, the police exist to serve the public interest, so the public interest is obviously paramount. LORD JUSTICE LEVESON Would you not include into those bullet points: engage the public? In other words, ensure that those who had information came forward to give it?
A. Probably I could have built that into the LORD JUSTICE LEVESON I'm not trying to rewrite your slide, I'm just
A. I'm just thinking back to the next slide, which actually said: and over all this, the purpose of the context of any media interaction, this is post an incident, is to support the investigation. So to inform, reassure the public, and if possible encourage them to come forward with any information, absolutely. LORD JUSTICE LEVESON So this policy is exactly the same as the policy that is trying to be developed in relation to confidence in the criminal justice system or our systems generally. It's the same idea. Is that fair?
A. Well, I'm not aware of the precise LORD JUSTICE LEVESON All right, all right. MR JAY Can I just try and understand the difference between the public interest and the police interest, that those two terms aren't precisely congruent, but they overlap? In terms of the public interest, obviously you don't mean or do you mean the police view of the public interest? How would you define the public interest?
A. Throughout this I'm referring to my specific area of responsibility in counter terrorism at that time, and the reason why I had engagement with the media at all in any shape or form was to try to basically help protect the public, to keep the public safe in any way possible, and if that meant giving communities confidence so that they could come forward with important intelligence or evidence or balance the media discussion of what was going on to enhance that confidence, then that was in the public interest. I was not interested in trying to make the police look good. That's not part of my agenda. It was entirely about trying to support the counter terrorist effort at that time.
Q. In any large organisation, there's always what might be described as an orthodox establishment view of public interest or indeed the interests of the organisation, and there might be at the margins heterodox views or unorthodox views, and proponents of those views might say, well, these matters should enter the public domain because it is in truth in the public interest that they should do so, even though the establishment view might be that they absolutely should not. Do you have any opinion as to that conundrum?
A. I think there are two points here. One is that obviously I was operating in an arena at that time where I could not possibly put a lot of what I knew into the public domain because most of these matters were sub judice, so I couldn't run the risk of prejudicing future trials. So that was not an option. But I could speak to responsible journalists safe in the knowledge that they could not report some of the things I was telling them because they were forming part of the case that was going to come before the courts. The second point is I think that mine was a particular area of specialist interest, counter terrorism, so I don't really think I'm qualified to comment at that time on whatever the Metropolitan Police's broader view of the police/public interest was.
Q. Fair enough. Some of your statement I'm going to take as read, and I'm going to move to the gifts and hospitality section, which starts at page 00103. I can assure you, Mr Clarke, the Inquiry has read the intervening pages. You provide us with copies of the hospitality register as it relates to you during your time as Deputy Assistant Commissioner, so to be clear about that, is that part of the period 2002 to 2008, because you were promoted, I think, to Assistant Commissioner?
A. No, what happened was I was Deputy Assistant Commissioner from 2000, in fact. 2002 I took up responsibilities in the counter terrorism world, and then at the end, in December 2007, because the then Assistant Commissioner decided to retire, I had to postpone my planned retirement and I agreed to stay on at the request of the Commissioner in the position of Assistant Commissioner for a few months whilst a successor was found.
Q. Thank you. Arguably in contradistinction to others, whether or not that's a fair observation we'll see later on today, there are only two items in the gifts and the hospitality register which apply. The one in 2005, which I think was a Rugby League game against Australia, and then there was football at the Millennium Stadium in Cardiff in 2006. The CRA lunches, which were presumably paid for by the CRA, are not on this register. Is that because someone has simply failed to include them on your behalf?
A. I don't know. To be quite frank, those entries would have either been made by my staff officer into a register or, in the case of the CRA lunches, they were arranged by the directorate of public affairs, it may be they put them into their register. I don't know. LORD JUSTICE LEVESON CRA is?
A. Crime Reporters Association. LORD JUSTICE LEVESON I should have corrected Mr Jay or explained it when Mr Jay first used the acronym. What is that association?
A. I'm not sure of its actual status in terms of an association, but it's a grouping of journalists who and I don't understand, I don't know, actually, the background to it, but they seem to be a group of journalists who have a relationship with the directorate of public affairs so they can operate as a corporate body. By way of comment, I must say I always felt that perhaps one thing that was missing from that grouping was the international media. It seemed to me to be predominantly, if not exclusively, UK-based. LORD JUSTICE LEVESON Thank you. MR JAY I'm sure, Mr Clarke, that if you'd had dinners with members of the press at their expense, you would have remembered them.
A. Absolutely.
Q. Were there any such occasions?
A. No.
Q. May I move on to the subject of leaks. You gave a lecture about this. The relevant extract is at paragraph 42 of your statement at 00105. The context there is your own experience in counter terrorism, is it? So you're looking at it from that perspective when you refer to the deliberate leaking of highly sensitive operational intelligence?
A. That's right.
Q. You refer as well to: a small number, I'm sure, of misguided individuals who betrayed confidences. Perhaps they looked to curry favour with certain journalists or to squeeze out some short-term presentational advantage. I do not know what motivates them." You're not including there providing information in consideration for payment, which I suppose might occasionally happen, but you have no direct knowledge or it?
A. I would certainly include giving information in consideration for payment if it fell into the category I was talking about here of highly confidential classified information.
Q. You say in paragraph 43, towards the end, that from your experience of over 30 years: I think the extent of leaks from the MPS has been greatly exaggerated, although I would not suggest for a moment that that is not a problem." What is your evidence base for stating that, Mr Clarke?
A. What, that it's not a problem or that it's been exaggerated?
Q. It's been exaggerated.
A. Apart from my personal experience over the years, I mean I could refer back to an incident in this Inquiry earlier this week, when reference was made to a counter terrorist operation and the suggestion was made that it could only possibly have occurred as a result of improper contact between somebody in the police and the media. That particular operation I have intimate knowledge of and I find that suggestion very strange indeed, because the operation was on 29 July 2005, the intelligence was developed overnight in that operation do you want me to go on with the details, sir? LORD JUSTICE LEVESON You'd better tell me a bit more, because you're now telling me about something in connection with the Inquiry that I'm not sure I know about, so I think I would like to know more.
A. It was evidence from Mr Paddick earlier this week, sir. LORD JUSTICE LEVESON Oh, okay.
A. He made that suggestion about this particular operation. The intelligence was developed overnight. Early in that morning on 29 July, an observation point was put in and then cordons, firearms officers and evacuation of the block of flats started. This went on for several hours, and indeed then the stand-off with the terrorists inside who refused to come out took more time. I think we know throughout that month every time we mounted a high-profile operation with armed officers in London, there was huge amount of media interest and they were turning up very quickly at all of these because of the obvious interest in the wake of 7/7 and 21/7 about what was going on. This is exactly what happened here. Over the hours, with the amount of local disruption that was caused, evacuating people from their houses, clearly the media got to hear about it and they turned up, and since that comment was made earlier this week, I've spoken to colleagues who were involved even more deeply than I was in that operation and none of them recognised the suggestion that it was anything out of the ordinary. LORD JUSTICE LEVESON Now I understand. I thought what you were saying was a leak from the Inquiry.
A. No, no, no, sir. Absolutely not. LORD JUSTICE LEVESON That's what I thought you were saying. I remember Commander Paddick's evidence. I remember what he said. Now I'm on the same page.
A. Sorry to have confused the issue. LORD JUSTICE LEVESON Well, in the light of what I said earlier, I am rather sensitive about this just at the moment.
A. Indeed. MR JAY There was a leak inquiry at your instigation in 2007. It's a rare example of a leak inquiry which, as it were, catches the culprit, and the culprit was found. You explain in paragraph 44 what happened. Is that right?
A. Yes.
Q. Most leak inquiries leak nowhere; is that correct?
A. They're very difficult. On this particular occasion, the particular intelligence that had been leaked, it was not too hard to find an audit trail of where it had been and because of the particular systems on which it had been stored, it was able to be found out who had accessed it and when.
Q. Because if a police officer, just for the purposes of argument, speaks to a journalist discreetly on a mobile phone after hours, it would be virtually impossible to ascertain that that's happened, would you accept?
A. If a police officer or anybody else talks to a journalist discreetly after hours, yes.
Q. In order to encourage, foster, inculcate proper relationships, proper professional relationships, between the police/press and vice versa, obviously we need rules, we need guidance, and those were available to the Inquiry, but we also need the right culture, I suppose, or the right series of attitudes. How would you recommend to the Inquiry that that right culture is inculcated, particularly at a senior level in the police, or even lower down?
A. Well, it just seems to me that in view of all the public debate and discussion there's been around this subject, there is a need for some guidelines, but my sense and I haven't been asked to prepare any thoughts on this is that whatever guidelines emerge do need to be flexible, they do need to take account of the particular circumstances and position of who they're intended to apply to. It would be I think, from a policing perspective, unhelpful to have such a rigid guideline that the Commissioner of the Metropolitan Police was subject to exactly the same rigidity as a very junior officer in a completely different role. It seems to me there needs to be commonsense flexibility about this. LORD JUSTICE LEVESON I agree with that. Of course, by saying "I haven't been asked to prepare any thoughts on this", you then lead to the inevitable question whether you would be prepared to prepare some thoughts on it from your perspective as a former very senior police officer?
A. I certainly would, sir. LORD JUSTICE LEVESON Well, if you would, that engaged the appropriate degree of flexibility, then I would be interested to see them at some stage.
A. Certainly. LORD JUSTICE LEVESON Thank you. MR JAY Mr Clarke, I'm going to move on now to Operation Caryatid, which does mean passing over a few pages of your statement, which I reiterate have been considered, particularly the fact that a referral was made by the MPA to the IPC, and it was you and others, of course, including the former Commissioner Mr Yates, and Mr Hayman, in relation to the phone hacking case, and the IPC concluded that there was no evidence of recordable conduct against you, and gave their reasons. But your evidence in relation to Operation Caryatid really starts at our page 00119, paragraph 65 of your statement. Can we just be clear, please, the general position? You say there were regular briefings by the senior investigating officers and you in relation to Operation Caryatid and of course other operations, but can we put to one side those other operations for the moment. How often approximately did those briefings occur?
A. I don't recall exactly how often they were. They would be irregular rather than on a regular day, date or time. I would be very as they're officers as part of the anti-terrorist branch, I'd meet them on a regular basis, but I can't say how regular or when.
Q. We've seen evidence in the documents which were disclosed in judicial review proceedings of briefing notes which were prepared on occasion and which were submitted up for your consideration. One good example of that is the briefing note from Mr Surtees to you, 31 May 2006, which we saw yesterday. But the briefing meetings themselves don't appear to be documented or minuted. Is that standard practice?
A. It is, yes. Let me explain how this worked in the anti-terrorist arena. The vast majority of the very serious counter terrorism cases would be subject to a process called the executive liaison group, which is a meeting held between the Security Service and the police, chaired by me as the national coordinator of terrorist investigations. All those meetings were fully minuted by a secretariat provided by the Security Service. In the case of other meetings, if there was a briefing for me about what was going on, I would be briefed. Those meetings wouldn't be minuted, but the product of those meetings would, I expect, go into the senior investigating officer's decision log.
Q. Was that standard practice for the product to enter the decision log?
A. I'd expect if there's anything coming out of the meeting which required the senior investigating officer to record a decision, absolutely, or an observation, if he or she wished to do so, yes.
Q. I think immediately senior to you at this material time was Assistant Commissioner Hayman; is that correct?
A. That's right.
Q. How often did you brief him about Operation Caryatid? Can you recall?
A. Personally, probably not very often. I remember the first occasion I briefed him I don't remember exactly when it was was after it had been established that Goodman and Mulcaire were coming into view as being strong suspects for this, and therefore there was an involvement of the media, because until that time we hadn't known who had been responsible or indeed if anyone had been responsible for interfering with voicemails in the royal household. So that was the first briefing. I probably discussed it with him at irregular intervals after that, but more detailed briefings were given by the senior investigating officers because of course they had the knowledge of the detail of this case, which I didn't.
Q. So from what you said, the first briefing was likely to have been in or about May 2006, because that's when Goodman and Mulcaire came into view. Goodman earlier, but Mulcaire May 2006. Then there were informal briefings subsequently, and other briefings which Mr Williams and others gave Mr Hayman. Is that broadly speaking right?
A. Yes.
Q. I'll come back to that in a moment. In paragraph 66, you tell us that the first occasion you saw decision logs which related to Operation Caryatid was in July 2011 when you were preparing to give evidence to the Home Office Home Affairs Select Committee. Is it standard practice that decision logs are not shown to the Deputy Assistant Commissioner?
A. Absolutely.
Q. The reason may be entirely obvious to you and indeed probably to me, but why?
A. Well, the records of decisions kept by the senior investigating officer and I don't mean to sound pompous about this, but there are two or three layers of management between me and the senior investigating officer. My role is to be aware of the overall strategy and to where an investigation fits into the overall objectives of what the branch is trying to achieve.
Q. I know you want to explain to the Inquiry it is in your statement, but you wish to explain orally both the nature of the terrorist threat at the material time and in quantitative terms the number of operations that were going on. It is in your statement, but please give that explanation, Mr Clarke.
A. Certainly. I think it's a question not only of the number of the operations, because 70 operations is a lot, but it doesn't actually convey the nature and quality of what was involved. Since 2004, we'd seen repeated attempts by Al-Qaeda networks in the United Kingdom to commit mass casualty suicide attacks. The first two of these very large operations were in 2004. The first was the one that's commonly referred to as the fertiliser plot, and the second was the one I referred to earlier which involved Dhiren Barot and his network who were looking to construct dirty bombs and so on. Then of course in July 2005 we had the attacks in London and then the follow-up obviously on 21 July. In between all those major cases, there was a plethora of other cases that posed a greater or lesser threat to the public. I think the thing that's often missed is the sheer scale of the resources that were needed to bring those operations to a successful conclusion. If you take the fertiliser plot in early 2004, that was a group of young British citizens who wanted to construct a large vehicle bomb and to blow up probably a nightclub or a shopping centre. Now, in order to control the threat posed by suicide bombers, potential suicide bombers, you have to have an order of magnitude on the resources you apply which is far in excess of anything that had been applied in any previous terrorist campaign, such as the Irish campaigns, simply because you're trying to control a different threat and trying to prevent the public being subject to some outrage whilst you're actually in the process of investigating. So if you take Operation Crevice, which is what the fertiliser bomb plot was called, we had an unprecedented number of surveillance teams allocated to that operation. We used every single surveillance team in London and most of those from the areas around London. It meant that other serious crime was not being investigated. I believe that perhaps one team was kept back to deal with life-threatening kidnap cases, but apart from that, murder investigations, armed robbery, drug dealing, indeed even internal police corruption investigations had to be put on hold to service the requirement of the counter terrorist investigation. That was just one case. These carried on throughout the following two to three years, and of particular relevance to what we're discussing here is the plot which led to arrests in August 2006, the day after Goodman and Mulcaire were arrested. That plot the investigation had been building since earlier in the year, and that led to the biggest ever deployment of surveillance capacity in July 2006 as we moved towards the arrest phase, as I say, in early August. In order to service all of these investigations, I had to borrow, to put it politely, officers not only from across the Metropolitan Police but across the country. In the wake of the 7/7 attack, I borrowed over 1,000 officers who were brought in to support that investigation. The airline plot investigation in August 2006 involved some 300 officers, if I recall right, being drafted in. By January 2007, I still had, I think, about 200 officers on loan from elsewhere, and these were not just I don't mean it pejoratively any old officers, these were highly experienced detectives with specialist skills, be it surveillance, analysts, operators of the HOLMES system, investigators or whatever. So these were precious resources which I'd been dragging from across British policing for a number of years. I hope that gives some context of the scale of the threat. Allied to which of course, in July 2005, only, what, five months before this allegation of phone hacking first came into my department, we'd had 52 people murdered and some 800 people seriously injured in the attacks in London. The subsequent plot the following year, the airline plot, was designed to kill literally thousands of people. So that was the context in which we were operating and in which I had to prioritise the comparatively small resource that we had available in terms of the anti-terrorist branch.
Q. Thank you. In December 2005 this is paragraph 82 then of your statement, page 00126 and 127 you took the decision that owing to the obvious security implications and sensitivities surrounding members of the Royal Family, it was appropriate that SO13 should take control of this investigation; is that right?
A. That is right.
Q. Another factor was the need to keep this investigation covert, and SO13 were extremely well equipped to achieve that objective?
A. That played into the decision, but primarily it was because the concern was: was there somebody, we knew not who, trying to find out information about members of the Royal Family which could pose a security threat to them?
Q. Would you, if you could, have donated this investigation to a different division within the Metropolitan Police at any stage?
A. At any stage?
Q. Yes.
A. Possibly certainly later on, much later, it was something that I gave serious consideration to, but not at this very early stage, no.
Q. No. You say later on you gave serious consideration to it. At what point did this consideration arise, Mr Clarke? Can you recall?
A. I would have thought from about probably the spring of the following year, spring 2006, all the way through. When it was becoming clear that actually what we were looking at was something that was quite wide, endemic might be an expression, within a particular part of the media, and that there were more victims, as we later discovered, than we had originally known about, obviously it's something that I considered very seriously.
Q. In essence, what were your reasons for not offloading this elsewhere?
A. Initially it was because by that stage my officers were very familiar with the quite complicated technical aspects of this offence, which you heard about yesterday. They had also engendered the confidence of the royal household in the way in which they were conducting themselves and the investigation, and because of the wider nature of what was happening, it would have meant picking apart the investigation and perhaps hiving off one part to one department, keeping another part with us, and that would have not made any sort of operational sense. So at that stage I decided it should stay where it was.
Q. When you said "quite wide" and then "endemic", did that statement just relate to the number of potential victims or did it relate to the number of people within the media who might have been carrying out this practice?
A. I suppose it referred to a feeling of mine that if one journalist and a private investigator had found a means of doing this, it was probably inconceivable that others were not engaged, whether in that particular paper or wider. I suppose it's a cynical view of an old police officer that if somebody is arrested for burglary, the chances of it being the first time they committed a burglary are slim.
Q. Just while I'm on this theme, although I accept it's outside the chronological sequence, but when you decided later on, September, possibly early October 2006, that the parameters of the investigation would not be broadened, did you consider at that stage passing this investigation to another division within the MPS?
A. Yes, I did. I thought about it very carefully, because quite clearly I, as a police officer and as an investigator, would like criminality to be dealt with. But on this particular occasion I had to look at it and decide: could I realistically ask anyone else in the police service to take this on? For a number of reasons, I decided it was totally impractical to ask another department to take this on, and so I didn't.
Q. We may come back to that. The original parameters of the investigation, paragraph 85, Mr Clarke: "To investigate the unauthorised interception of voicemails in the royal household impossible to prosecute those responsible." And then this point: "To take all necessary steps to prevent this type of abuse of the telephone system in the future." Might those steps have included warnings to relevant people which were short of prosecuting individuals?
A. I'm not sure if I understand you, sir. Warning potential victims or perpetrators?
Q. More specifically we'll come to the victims, but warning the possible perpetrators within the relevant organisation. Warning them as to their conduct, telling them that your suspicions were, indeed you had evidence to this effect, that this was widespread or might have been a widespread practice, and making absolutely clear to them that the practice must stop and steps must be taken to prevent it in future. Is that what you had in mind in paragraph 85?
A. Not at that stage, because that was very early. Those parameters were set at the beginning of the investigation, and that's the normal sort of approach that one would take when looking at criminality is to think not only possibly that arrest and prosecution are potential outcomes but also deterrents and prevention. What is it that people are doing? Is there something that can be done to stop this happening in the future? In this case, clearly working with the mobile phone industry was one way of achieving that prevention.
Q. We'll come back to that in a moment, Mr Clarke. Paragraph 88: "As the investigation progressed, it became clear that there may have been many other people being targeted and there was a potential for the investigation to become much wider. I took the decision that this was not appropriate for a number of reasons." That, I think, is a reference to a decision you made on or shortly after 31 May 2006 when you were briefed to that effect by Mr Surtees. The relevant tab number, but we're not going to turn it up, is tab 59 of the judicial review bundle. Do you think that's approximately the date you were referring to here?
A. It probably is, sir, yes.
Q. Of course at that point the operation was covert, and you point out in paragraph 88 that there were two unacceptable risks, first that the investigation would be compromised and evidence lost, and second that the much wider range of people who were learning were the victims of this activity would continue to be victimised while the investigation took its course. Those are matters which are referred to in tab 59. Can I move on to paragraph 90, which is the point at and shortly after the arrest of Goodman and Mulcaire, 8 August 2006. Did there come a time when you learnt two things: first, that News International had at least in the perception of the police been obstructive on the day, and secondly that News International, through their solicitors, were not providing much further evidence pursuant to your requests?
A. Yes.
Q. What was your view, if anything, as to the significance of that in terms of your investigation?
A. Well, in terms of the investigation, it became immediately apparent that we weren't going to get any co-operation whatsoever from News International. Unusually, when normally when one deals with something that's happening within a large international corporation, or indeed a large national corporation, companies bend over backwards to try to preserve their reputation and assist in enquiries. This was a closing of the ranks from very early on.
Q. You told the Select Committee on 14 July 2011 that obstructive behaviour, I paraphrase, tends to make you more dogged. Is that what happened on this occasion or not?
A. That is a paraphrase, sir. What I said was that that sort of attitude would be likely to make me more determined to pursue an investigation, but obviously one has to take into account the realities of what is achievable within the resources and the context the overall context.
Q. Did you give specific consideration to seeking a production order from a magistrate to force compliance by News International?
A. I didn't personally give specific consideration to that, but I'm aware that consideration was being given in consultation with, I believe, both the Metropolitan Police's own legal services and with the Crown Prosecution Service.
Q. Paragraph 92, Mr Clarke. LORD JUSTICE LEVESON Are you surprised that didn't happen?
A. In view of the first response from the News International lawyers Burton Copeland, I'm probably not surprised because that was phrased in such a way that one could argue very well, not convincingly, but you could argue that that amounted to co-operation and therefore would prevent the application for a production order. In terms of what subsequently happened, when clearly it was just lip service being paid in the responses to the letters from us asking for further information about who else was involved and so on, I don't think surprise, because quite frankly, sir, even if a production order had been granted, for me the question was: would that alter my decision about whether it was appropriate to continue with a much broader and lengthier investigation? My thinking around that was it wouldn't actually make any difference whether there's a production order in place or not. LORD JUSTICE LEVESON Well, we'll doubtless reflect on that evidence shortly. MR JAY Paragraph 92 where you say: "We had considered undertaking an exhaustive analysis of the material that had been seized in August 2006, and I made the decision not to do so." Pausing there, the evidence from the officers yesterday was along the lines that your decision was probably made towards the end of September 2006, perhaps early October. Does that accord with your recollection?
A. The ultimate decision, yes, although of course remember that back in August we had decided on the victim strategy, and that involved, as I think Mr Surtees described yesterday, some 30 officers doing not a peremptory but a brief examination of all that documentation for a couple of very specific purposes: the CPIA issues and to identify where national security might be at risk. So the next stage, at least what I was considering, was: should we do a proper analysis of this 11,000 pages, as I've since learnt it was? If you want me to explain the reasons why I decided not to, I'll gladly do so, because
Q. We will come to that, but I want to try and understand when this decision was made.
A. The ultimate decision I think would have been around the end of September.
Q. And that ultimate decision is not evidenced by any documents, would you agree?
A. It seems not.
Q. Was this because it was at an informal briefing in line with the practice you mentioned towards the start of your evidence or was it something we should be surprised about?
A. You shouldn't be at all surprised about it. I think what happened and I'm relying on the best of my memory here is that in about the third week of September 2006, I went to Australia on business for about eight days or so, and on return I would have been briefed by my two immediate senior colleague members of the senior management team, Commander John McDowall and Detective Chief Superintendent Tim White, about everything that had been going on, and that would have included, obviously, reference to where things had got with this particular inquiry, although it was, to be honest, not anywhere near the top of our level our concerns because, remember, we are dealing with the airline plot and a whole range of other terrorist operations at that time. My belief is that what happened is that having received that briefing, I have said to them, "Okay, go and see the SIOs, tell them that we're not going to go into the enormous exercise that going through all that material would involve."
Q. Can I just understand what your perception was of what had already been done by your team? Were you aware that the 11,000 pages of Mr Mulcaire's material had already been analysed by Mr Williams' team over a week-long period?
A. It hadn't been analysed. It had been looked at but not analysed. In order to do a proper piece of analysis on that material, such that it could in any way be useful in evidence, it would have to be indexed, and in those days manually, because there was no way of scanning onto the HOLMES system, which was the major inquiry system which manages the material in this sort of investigation. It would have to be indexed, cross-referenced. Every phone number would have had to be researched and subject to an individual RIPA application for the to get the data, and then all of that data would have had to have been subject to subsequent analysis. That, quite clearly, would have been an enormous undertaking. It would have taken dozens of officers over months, if not years. Indeed, as we've seen since January last year with Operation Weeting, we've seen the scale of the effort they have had to put in. I don't know how many officers it is now, I believe it's in the hundreds, working on that very case. It was the fear that that scale of resource commitment would where this would inevitably take us was mainly what led me to take the decision that we would not go into it. It was disproportionate in terms of the other competing demands at the time.
Q. Wouldn't it have been possible to have done a more abbreviated analysis; in other words, a sample of victims and then have considered possibly three journalists who were in the sight lines of Mr Maberly, in particular?
A. I don't believe so, sir. The Home Affairs Select Committee, a member of that committee, asked me why didn't we skim this material, skim 11,000 pages. I know you're not suggesting that, you're suggesting that perhaps we could have gone through it and tried to focus on particular journalists. Well, potentially, but I don't see how you could take part of that material and subject it to analysis without all the cross-referencing and so on that would have to happen, and so inevitably I think it would lead to an analysis of all the material.
Q. But is that right, Mr Clarke? We know in relation to what did happen, counsel advised on 21 August 2006, when they were looking at Goodman and Mulcaire alone: it will take up to six victims to get a representative picture. You might have taken, say, 20 victims. You might have made further progress with the three journalists in particular who were in Mr Maberly's sight lines, and carried out a far more limited and streamlined analysis of this you say gargantuan material, rather than do the whole lot. Do you see that?
A. I see what you're saying and with hindsight there are probably all sorts of approaches that could have been taken, but in the light of what I was aware of at the time, what I knew and the competing demands, I made the decision that we would not do so.
Q. But were you aware of the quality of the circumstantial evidence which potentially incriminated other journalists?
A. I wasn't aware of if you're referring to something that emerged in evidence here yesterday, I don't think I was aware of that, no.
Q. Were you aware, forgetting what may or may not have happened yesterday, of the existence of corner names, first names, in the Mulcaire material?
A. I was aware that there were all sorts of references to all sorts of people in there, yes.
Q. And that it was possible, equipped with that evidence, the corner names, and other evidence such as Mulcaire phoning out to the mobile phone of a journalist, hacking a voicemail may have been a number of voicemails we heard from Mr Maberly yesterday and then phoning the journalist back on his or her mobile phone, that we're beginning to build up a convincing picture of a pattern of activity which is, at the very least, extremely suspicious? Was that something you were made aware of?
A. I was well aware of the fact that there was material there that if we wanted to go out and make I hesitate to describe them as speculative arrests, but they wouldn't be arrests supported by evidence. To get to the position where we could arrest Goodman and Mulcaire, it had taken six months of intensive work and very technical work with mobile phone companies to amass that evidence, so that when they were arrested, whatever they said and of course they said nothing they were going to be charged. Would it be reasonable, bearing in mind that we were being completely thwarted and receiving no co-operation from News International whatsoever, to go out and arrest two or three journalists, invite them to make a full and frank confession of what they'd been doing, because we wouldn't, without analysis of all that material, have substantial issues to put to them? It would be a complete reverse of good investigative practice to do that. LORD JUSTICE LEVESON There are two features coming out of this, Mr Clarke, both of which are of interest to me. The first is a systemic one. You are, as you've correctly said, in overarching control of an operation which is covering many, many extremely serious investigations and you have to prioritise. There are then several ranks below you who are doing the work on their specific operations, and one of the concerns that might be expressed is that your Olympian position I'm not being disrespectful because of your over-arching responsibilities, is very far removed from the sort of detail that would be necessary. The point that Mr Jay has just made to you is actually, of course for Mulcaire and Goodman, where you didn't have the Mulcaire material, you were going to have to do a lot of groundwork, but here you have some paperwork, which the police had looked at very, very quickly, and when they were interviewing Mr Mulcaire, they'd got the names, they'd seen who was involved. So they knew names, addresses, mobile phone numbers, PIN numbers, personal details for a series of focused people, and the systemic question is whether you had enough information to make a decision not necessarily to do it yourself, maybe one officer to go to somebody, but to be able to make an over-arching decision to say, "Stop, enough", or whether the system was such that that sort of fine detail, the buzzword of the day I suppose is granularity, was missing from the consideration that you brought to bear. Do you see the question I'm asking?
A. I see the point entirely, sir. I think it's a very fair one. I'm not quite sure what the answer to that is, other than that this is not uncommon. It may be uncommon for a Deputy Assistant Commissioner to have such direct influence on an investigation, but that was the nature of the counter terrorism command and the anti-terrorism branch before that. But I'm confident that the briefings I received gave me enough information to be able to make an informed judgment. They may not have been down into the level of the detail about who's been contacting whom, but the fundamental question is: can we take this investigation forward in any meaningful way without embarking on the enormous exercise of going through that material, or is the only way is there another way of doing it, which would involve arrests or interviews which are highly unlikely to lead to any LORD JUSTICE LEVESON You don't need to persuade me
A. No, I'm not. LORD JUSTICE LEVESON that speculatively arresting people is not going to be of great value in the circumstances such as obtained here.
A. Yes. LORD JUSTICE LEVESON But more difficult, more difficult, is the fact that the police for the purposes of interviewing Mulcaire had done some work let's not call it analysis, and I'm certainly not going to use the word "skim", but they'd done some work to identify a fair amount of material, which revealed a picture which linked to some journalists, so it appeared, because of the corner names, and because of some of the numbers. So query whether you knew that sufficiently to make as it were, to put that into your mental equation. I understand the size of the overwhelming problem that you faced.
A. Indeed, yes. LORD JUSTICE LEVESON And you don't need to convince me of the enormously important work that counter terrorism was doing then and the pressures that it was under. I fully recognise that and I'll make that quite clear now. But there were other things in play here. So if, for example, one takes the Deputy Prime Minister of the country, whose details are all over this material in a way that is much more complex than just his name, and the police have it, because they're asking Mulcaire about his PA, and therefore all these numbers are there, whether there isn't something in all that that had you known about you might have said, "Actually, that is something we ought to think about". I'm not trying to cast blame here.
A. No, no. LORD JUSTICE LEVESON I'm trying to understand. Because what the police are now facing, as you well know, is: this was a deliberate decision to cover it all up. The trouble is that each step we take, you can say actually this is the reason and that's the reason, and then you put it all together and that's one of the reasons I'm here.
A. Yes. LORD JUSTICE LEVESON So I'm really keen to drill into that about that problem. The systemic issue of the detail. My second series of questions and just to alert you, and I know Mr Jay will come on to deal with it, and if he doesn't, I will concerns what you do not do to pursue the alleged and possible criminals, but what you do for those who are the victims, which may not involve your most sophisticated officers involved in the most difficult work that you're doing, but that's a separate question. MR GARNHAM I hesitate to rise but you said a moment ago there was reference to Mr Prescott as he then was all over the papers. I think the evidence you've heard is that there were four or five references to his name. LORD JUSTICE LEVESON Yes, but when I say that I mean that there was a reference to his name, his details, his personal assistant, which the police had put together, telephone numbers. However many there were, and I take your point, this isn't something the police at the time were unaware of. MR GARNHAM No, I don't suggest that. It was the expression "all over". LORD JUSTICE LEVESON Right, thank you very much. I stand corrected. MR JAY Well, onto the first of Lord Justice Leveson's points, the systemic issue: not enough information coming to you to make a properly informed decision?
A. Even though I didn't know some of the intimate details of the case, and indeed details which, with hindsight, you could say were very important, I still think I had enough information available to me to make the overall decision about the future direction of the inquiry, because I still can't see any way in which we could have done that without exhaustive analysis of all of that material.
Q. To what extent was your decision influenced or impacted upon by your understanding of the quality of the evidence insofar as it related both to the number of victims and the number of possible perpetrators?
A. The quality of the evidence we had in respect of Goodman and Mulcaire was excellent. It was technical and it had taken many months to assemble. I think if you're going to try and prosecute journalists from a national newspaper, you need to have that quality of evidence. Inviting them to give an account of their actions because they appeared on various pieces of paper I think would be the wrong way around to conducting an investigation. You have to start from a position of strength, you have to have something to actually put to them. So I think overall that the information I had was sufficient for me to make an informed decision.
Q. But of course now you know a lot possibly you know a lot more, I think appeared before Select Committees, reviewed the decision logs as you tell us you did preparing for the Select Committees, and possibly having heard some of the evidence which has come out in this Inquiry. Has that exercise given you more information? Logically it must have given you more information than you had in September 2006, but has it given you a different impression or understanding of what the quality of the evidence was insofar as other journalists were concerned?
A. It's told me that there's more information there. To what extent that was evidence, to what extent that would contribute to a prosecution, I'm not in a position to say. What I can say is that I haven't seen anything which would cause me to make a different decision than the one I did then in terms of the allocation and resources, and I say that because we referred earlier to the overall strategy, which was to try to bring this criminality to an end by the prosecution of a senior, high-profile journalist, through working with the industry and through passing information to government.
Q. Does it follow, Mr Clarke, that even if one could fairly characterise the evidence, particularly in relation to three journalists, as strong circumstantial or inferential evidence, that your decision not to pursue this would be exactly the same?
A. I think it probably would. Strong circumstantial evidence in terms of trying to prove a conspiracy within a major newspaper group, it might it won't get you, I would suggest, it would be very unlikely to get you to the position of a successful prosecution. LORD JUSTICE LEVESON You could actually say this, Mr Clarke, I suppose: actually, none of this matters at all. This decision wasn't even close. Not because of the quality of the evidence, not because of the strategy, but because I'm coping with 70 terrorist operations of the monumental scale that you describe, so although in a different world at a different time I might have liked to do this, at that time, at that place, this wasn't close. Now, that's a line that you could take, in which case this debate is utterly irrelevant.
A. Well LORD JUSTICE LEVESON But is that right?
A. I think I think it's very close to being absolutely spot on, sir, if I may say so, because the minutiae of whether there was circumstantial evidence against journalist A, B or C is a minor consideration in comparison with the consideration of what poses a threat to the lives of the British public. Invasions of privacy are odious, obviously. They can be extraordinarily distressing and at times they can be illegal, but, to put it bluntly, they don't kill you. Terrorists do. LORD JUSTICE LEVESON Well, that's fair enough, I understand that, and if that's the answer, that's the answer. And then one has to review each decision thereafter, when the terrorist threat is in a slightly different perspective, and one looks at it against that background. But then it's wrong to start characterising the decision as flowing from a if not detailed, a true consideration of the material or the work; it just isn't in the same division. It's not in the same ballpark.
A. I think that was precisely my point, sir. I probably expressed it badly. LORD JUSTICE LEVESON No, no.
A. But it would have taken a huge amount of very strong, compelling evidence to persuade me that we should take a different course, but what that would have done, if there had been something extraordinarily compelling and probably an and, might be an or co-operation from News International, I would have had then better grounds on which to go to another part of the police service and suggest that enormous resources should be dedicated to this problem. MR JAY But it flows from that, Mr Clarke, that the evaluation of the strength of the evidence is in part relevant to your decision, but you're saying that it's no good having evidence which was strong circumstantial evidence. You would need in truth enormously compelling evidence to justify you going further steps to investigate this. Is that correct?
A. If officers had come to me and said, "Look, we have very clear technical evidence here that these journalists are involved in phone hacking", that would have given me something more then to try to move the operation somewhere else, something to explain to colleagues why they should devote their own precious resources to what would inevitably be an enormous operation, but that simply wasn't there.
Q. Were there not possible national security concerns which flowed from the very fact that the voicemails of cabinet ministers, those in the military, those in the police, were hacked into? Or might have been?
A. Yes, there are national security concerns, but they're very different from the evidential issues which you were just asking me about. The national security concerns we hoped to address through the to call it this, the victim strategy. As I explained to the Home Affairs Select Committee, I've since discovered that that strategy didn't work as intended.
Q. We'll come to that. The other point is were you aware that as part of Mulcaire's project, as he described this is our tab 157 the victim protection scheme had been compromised?
A. No, I wasn't aware of that.
Q. Or the witness protection scheme. Does that knowledge impact on the decision you made in September/October 2006 if you had it?
A. You're asking me would I have made a different decision had I known that?
Q. Yes.
A. No.
Q. And why not?
A. Because I think the proper way to deal with that would be to approach the witness protection department to find out whether there was a compromise and obviously to take appropriate mitigation measures.
Q. Were you told that the Deputy Prime Minister's messages had been compromised? I'm using the term deliberately loosely. I'm not suggesting that his voicemail was compromised, but the voicemail of his agent, in other words his personal assistant?
A. I think and forgive me, it's a long time ago, my memory might be at fault here I think I was aware that one of his assistants appeared on the Mulcaire documentation, and that was in the category of people that I hoped would fall within the victim notification strategy, where the police themselves were going to do the notification.
Q. May I put three direct points to you for you to comment? Was your decision in any way influenced or impacted on by pressure from News International, or your perception of it?
A. No, absolutely not.
Q. Did you discuss any of the issues you've shared with us with Assistant Commissioner Hayman?
A. Obviously I briefed Mr Hayman, because he was my immediate line manager and I would meet him on a regular basis, and I certainly briefed him at the outset when it was discovered that Goodman and Mulcaire looked to be responsible, and I am pretty sure that I probably briefed him in the run-up to the arrest phase, but I don't remember specifically.
Q. Do you believe that you briefed him in relation to the decision made probably at the end of September 2006, namely not to broaden the investigation?
A. I don't remember specifically briefing him on that. Whatever decisions I made he certainly didn't disagree with.
Q. Do you remember anything he said in relation to those decisions, which might assist this Inquiry?
A. No, I don't.
Q. One possible consequence of informing Lord Prescott, or then the Deputy Prime Minister, and of course we know that he wasn't informed, some might say that had he been informed, it might not have been possible to, as it were, put the lid on this. There might have been I'm not disparaging Lord Prescott in any way an explosion. This would have entered the public domain, and you might have been forced to have carried out the investigation you did not want to carry out. Was that a consideration which entered your mind?
A. Well, it wouldn't be for me to go direct to Lord Prescott. I discussed this with the then Home Secretary, Dr Reid. He was aware of the investigation. LORD JUSTICE LEVESON The point about Lord Prescott is if he'd been alert to the extent to which his personal information was available, the limited extent to which Mr Garnham has reminded me, then as a victim he might have had a reaction which would have meant it very difficult for the police not to pursue it.
A. He might well have done, but perhaps I haven't explained very clearly: I wasn't aware that the victims strategy hadn't worked as intended until perhaps two years after I retired, and so my assumption was that all those people in those categories where the police were going to do the notification had been informed. MR JAY So was it your understanding that the Deputy Prime Minister did fall within the relevant category and therefore ought to have been notified by the police?
A. Absolutely.
Q. But as you explained, the strategy did not work as intended. Can I just go back to your discussion with Dr Reid, the then Home Secretary. Did you make is clear to him that although the investigation had clearly and conclusively implicated Goodman and Mulcaire, (a) the range of victims was far wider than the royal household, and (b) that other journalists might well have been involved?
A. I think it did. I don't remember the exact content of that discussion. I know that a briefing paper went from the Metropolitan Police to the Home Office and that Dr Reid was aware of it and it was on the basis of that that he asked me some questions in the margins of another meeting, a meeting actually about the airlines terrorist plot. LORD JUSTICE LEVESON Do we have that briefing paper? MR JAY No, no. We can ask for it, but there may be a PII claim for part of the document. There's no reason why the Inquiry shouldn't see it, though. LORD JUSTICE LEVESON I'm just keen to cope as comprehensively as I can with the allegations that have been made, which are, of course, extremely damaging to the Metropolitan Police. Mr Garnham, I think you'd better think about that. MR GARNHAM We will. LORD JUSTICE LEVESON Thank you. MR JAY In terms of the victim notification strategy, which did not work as intended, the strategy as a whole had three elements, it went wider than victim notification. It's paragraph 93 of your statement, page 00131. First, it was the very public prosecution of a senior journalist from a national newspaper, secondly it was collaboration with the mobile phone industry and thirdly it was briefings to government, et cetera. In terms of notifying victims and collaborating with the mobile phone industry to the extent to which they might notify victims, what oversight, if any, did you exercise over that strategy or its execution?
A. Not over its execution. I agreed the strategy at a meeting I think in late August, that this should be the strategy, and I don't think I had much to do with it after that. Other issues intervened. But my hope was that that would be comprehensive and would work. Sadly, it turned out not to be the case and to this day I don't really understand why it didn't work.
Q. Was it your intention that all those who were, as it were, potential victims, in other words we know to be 418 or 419 names, on the original list which was prepared shortly after 8 August, that all those individuals would be notified one way or the other, either directly by the police or by the mobile phone companies?
A. Yes, absolutely.
Q. Specifically in relation to Lord Prescott, that would be a matter that the police would handle, rather than the mobile phone companies; is that right?
A. Yes. And if you draw a parallel, the former Home Secretary, David Blunkett, I think was informed personally by the then Commissioner.
Q. So given his status as Deputy Prime Minister, it wouldn't be, with respect, a detective constable who would go round and see him, it would be somebody extremely senior who would inform him out of courtesy and go through the details; is that correct?
A. It could be, or it could be that one of the senior investigating officers would go to speak to his office. That would probably be the more realistic first step.
Q. As you just said, to this day you don't know why that didn't happen?
A. No, I don't.
Q. The only other point I was going to cover was the evidence you gave to the Select Committee, but that was only to draw attention to it. I don't think I need specifically refer you to it, but just for the transcript, and we can look at it in due course obviously I've read it all it's questions 451, 466, 482 and 483. Have you had the opportunity to review the evidence you gave to the Select Committee recently, Mr Clarke?
A. Yes, I've read through the transcript.
Q. Is there anything you would wish to draw to the attention of the Inquiry by way of qualification of that evidence or are you content that we read it and accept it as it is?
A. Unless there's something specific that you have in mind, sir, I'm very happy for it to be taken as it is. You know, subject, of course, to the obvious restrictions that it was a very different environment to this, and, should I say, a less forensic environment.
Q. There's another restriction that constitutionally one can't impugn the proceedings in Parliament
A. I wouldn't wish to do so. MR JAY so I can't cross-examine you on the basis of anything you said but I can say to you if you wish to add to what you told Parliament, please do so now, but you've made it clear that you don't wish to. Those are all the questions, Mr Clarke, I had for you. I don't know whether there are any other matters. LORD JUSTICE LEVESON Let me just give you the opportunity, Mr Clarke. There is no doubt that there is a rather unfortunate catalogue of events in connection with this Inquiry, the result of which is now potentially extremely damaging, and therefore needs to be explained. That's why it's important to go through each of the decisions at each of the times the decisions were made, as I'm sure you appreciate. Not just yours; yours is merely the first of a series of very senior police decisions that are coming under scrutiny, which, as you have heard, some people put together to create an inference which you utterly reject, as is clear from your evidence. I recognise that you view material from a policeman's eyes, whereas I will look at it as a lawyer and might take a different view, and that's understandable, but I would like to know if there is anything that you would like to add either by way of comment to your role in this operation or in relation to what you know about what's happened subsequently, based upon your experience as a police officer, what lessons you think ought to be learnt from the operation. I will ask all those involved that question, because I'm very conscious that if I am to make recommendations, they ought to be grounded in an understanding of the reality of police service. I have the assistance of an adviser, which I value, but I wanted to give you, as a Commissioner rank officer, the opportunity to give me some thoughts on that. If that's something also you would like to think further about, then you can do that, but I wanted to give you the opportunity.
A. Thank you, sir, and I will give it further thought and maybe combine it with the invitation you gave me to submit some thoughts around the media. An immediate thought that comes to mind is that if the police make a decision that arrest and prosecution is not the preferred way of dealing with a particular piece of criminality, perhaps there are circumstances in which that needs to be shared with others, so that there's a clear understanding, so that the sorts of insinuations that have been made about my officers who conducted that inquiry in 2006 can more easily be shown to be baseless. Those officers conducted an honest inquiry, they were uninfluenced, as was I, by anything to do with News International or any media group, but if you're going to go down a path which talks about crime prevention, disruption, public information, informing government, perhaps there needs to be a more accountable and clear way of demonstrating that that is the preferred course of action, because I think it's the lack perhaps of that overall clarity that has given rise to some of the difficult issues and accusations in this case. LORD JUSTICE LEVESON Right. MR JAY I've just been asked to put to you one other short point, Mr Clarke: did you have any discussions with Mr Yates in 2009 in relation to Operation Caryatid? I know you'd left the police by then, but did he contact you?
A. No, he didn't. My memory is that the first time I spoke to Mr Yates about this was probably in 2011, not long before I was invited to give evidence to the Home Affairs Select Committee.
Q. So that's in July 2011?
A. Yes, that's my memory. MR JAY Thank you very much. LORD JUSTICE LEVESON Mr Clarke, thank you very much and thank you for the obvious effort you've put into preparing your statement.
A. Thank you, sir. LORD JUSTICE LEVESON Right. Now tell me what you want me to do now, Mr Jay. I think you want me to go and have lunch. MR JAY Brunch I described it as. We're starting at 12 o'clock with Mr Yates by video. LORD JUSTICE LEVESON Yes. And we need to go through that entire exercise in one piece, so we have to sit through MR JAY We can have a short break. LORD JUSTICE LEVESON Depends how long it's going to take. MR JAY Yes. LORD JUSTICE LEVESON I'm not asking you to commit yourself. All right, we'll rise now, I'm sorry to disrupt everybody's eating habits. 12 o'clock. (11.35 am) (12.00 pm) MR JAY Sir, the next witness is Mr Yates, who is in Bahrain, I think. MR JOHN MICHAEL YATES (sworn) (Evidence by videolink) Questions by MR JAY MR JAY Your full name, please, Mr Yates.
A. It's John Michael Yates.
Q. Thank you. May I check that you can see me?
A. I can see you, yes.
Q. Thank you very much. LORD JUSTICE LEVESON Hang on. If I speak, you shouldn't see me if I'm not speaking, but if I speak
A. I can see you now in wide vision, sir. LORD JUSTICE LEVESON Thank you very much indeed. Thank you very much for your statement. Yes, Mr Jay. MR JAY Mr Yates, may I first of all ask you to confirm your witness statement. It is dated 22 February and signed by you. Is this your formal evidence to the Inquiry?
A. Yes, it is. It's 46 pages.
Q. Thank you very much. May I just check the bundle that you have in front of you, just check it's the same bundle as I have. It contains the various exhibits to your statement, which are in subtabs. Do you have a bundle which runs to 79 tabs?
A. I have a bundle, it isn't 79 because the numbers go slightly odd thereafter, but it wouldn't be about 79, I can see it goes to 31, 62, and then a series of alphabets, but we might have to work it out from the scale rather than bundle tabulation, if that helps.
Q. We'll navigate our way through it. First of all, Mr Yates, your career in the Metropolitan Police Service. You retired in the or resigned, I should say more precisely, in the rank of Assistant Commissioner in July 2011; is that correct?
A. Not quite correct. I actually officially left on November 7, I think.
Q. Thank you very much. You set out your earlier career in paragraph 5 of your statement, but what is material to this Inquiry is that in April 2009 you were the national lead for counter terrorism in Assistant Commissioner rank; is that right?
A. Yes, together with the responsibilities within London as well, as set out at paragraph 7. So it was a national role it was a national role in terms of counter terrorism as a coordinator and then there were responsibilities within London itself around aviation, Parliament, diplomatic protection and the like.
Q. It was in that role, and we'll come to this in due course, that Sir Paul Stephenson, the then Commissioner, asked you to review the evidence in relation to Operation Caryatid in July 2009; is that correct?
A. I don't want to hit semantics around the word review, but you'll understand from my statement the difference between a review and what the Commissioner asked me to do, which was to establish the facts.
Q. Yes. So that we are clear about it, at the time Operation Caryatid was being conducted in 2005 concluding in January 2007, you had no role in counter terrorism; is that correct?
A. Absolutely correct, yes.
Q. Paragraph 8 of your statement you explain and this is at page 06472 on our pagination, page 3 on the internal numbering that for the vast majority of the time there was a healthy and transparent relationship at all levels, and you're dealing here with a culture of relations between the MPS and the media.
A. Yes.
Q. Why do you say that, Mr Yates?
A. In terms of a vast majority because there's clearly been instances in the past where actually it hasn't been healthy, and I'm talking about the current corruption allegations and the like. So to say there's always been a healthy relationship would be wrong because there have been instances in the past where that hasn't been the case. Rare though they may be.
Q. How do you define a healthy and transparent relationship?
A. By the very words I've used to describe it, really, in terms of trusting in each way healthy and transparent. I can't think of other ways to describe it.
Q. Does that include in informal transactions, for example over lunch or dinner with individual journalists?
A. Yes, it could well be, yes.
Q. In relation to those transactions, how do you ensure that those particular transactions remain healthy and transparent rather than unprofessional?
A. It's a matter for one's professional judgment and discretion. The vast majority of my dealings with the media would be around the sort of strategic policy issues that I was exposed to in my service at the senior rank. So in terms of the big issues of the day, be it counter terrorism legislation, be it data retention, be it rape policy, for which I was responsible nationally for a number of years, the very vast majority would be around that.
Q. Did you see
A. And I think sorry.
Q. Carry on.
A. Yes, and I think, as I set out, I think there's a great value in that in terms of both educating myself, testing hypotheses, testing views, and getting the views back as well, so the last thing I think we would want is policing to be in a bubble and in a vacuum where one isn't connecting to other thinking.
Q. Do you or did you see the purpose of interactions between the police and the media, at least from the perspective of the police, to pursue the public interest as distinct from the interests of the police itself?
A. I think there's occasionally a bit of both, but public interest is always paramount. It's making sure that whatever in terms of things like counter terrorism legislation, counter terrorism legislation reviews, making sure we have the very best policies that are fit for purpose and will work.
Q. You make it clear in your statement in various places that given the importance of the work you were doing and the nature of the work you were doing, you were very often the "public face" that's the term you use for policing and policy matters. You use that terminology in paragraphs 15 and 16.
A. Yes. I think that's a fair assessment which covers my period in charge of serious and organised crime in the capital, both as Deputy and Assistant Commissioner and also my role in counter terrorism as well.
Q. Do you consider that there is any sort of risk that you being a public face might put you too close to the media in general, or certain sections of it in particular?
A. No, I don't, actually. The certain sections bit. I mean, if you look at the registers, as I know you will have done, Mr Jay, it shows a very broad spectrum of coverage with the media. I would actually deliberately seek out the more obscure sections in terms of some of the views that they might hold, and I particularly look in terms of rape around that, and that's why I did so. So the "certain sections" bit is and I know where you're leading to, but I wouldn't say I would say I had a very broad spectrum of coverage in a broad spectrum of the meetings with the media.
Q. You tell us in paragraphs 23 and 24 of your statement our page 06478, page 9 on the internal numbering, you consider that the media was seeking through its personal dealings with you to fully understand the context around policing issues or particular events.
A. Yeah.
Q. Might it be suggested there, Mr Yates, that you're being slightly naive, if I can put it in those terms? The media might have been expecting through its personal dealings with you something additional in exchange. Would you accept that?
A. No, I don't really actually, because I do think many of those dealings, the vast majority, as I said, had been around understanding the context. If you take, for example, the government's desire to legislate around data retention and the use of police (inaudible) data in its general sense, there was a fundamental misunderstanding about how important that was. So if you have the opportunity to explain that and explain the full context and the value of those sort of issues, then I think I'm doing it in what I believe, and I still believe, was in the best interests of the public and the best interests of policing.
Q. Don't you feel though that there were sometimes occasions, particularly in social contexts and possibly when alcohol was exchanged or imbibed, when the press were trying to get something more out of you, either perhaps an indiscreet comment or perhaps to influence you in a certain way? Did you have a sense that that had occurred?
A. I can certainly see your point, Mr Jay, but as an individual that hasn't happened.
Q. Okay. I'll come back to that when we look at the register. Paragraph 22 of your statement, if you forgive me from darting around a bit, you tell us that the security services were understandably concerned about the degree of media contact "my previous role had involved"; this presumably was in 2009, and then you say presumably in part because of all the briefing against you and the cash for honours investigation. Can we be clear: what are you referring to there, Mr Yates, in the parentheses?
A. I'm firmly of the view that I was briefed against on an industrial scale during the cash for peerages investigation. That's what I'm referring to.
Q. I can see that, but what was being said about you, insofar as it's relevant to the sentence we are looking at here in your witness statement?
A. Because I think what it put me in, it put me in the public eye in a way that was quite unhelpful. There were allegations made against me about all sorts of things, I was a Kenneth Starr, I was this, I was that, and I was very much in the public eye, and in terms of a counter terrorism lead that's not necessarily a good thing.
Q. Was it being suggested you were the sort of policeman who does leak to the press and that the security services felt that you were the last sort of policeman they would like to see in a counter terrorist role? Is that the point?
A. That was the inference, Mr Jay, but it's not true.
Q. Okay. Again we may come back to that. I'm going to move forward to paragraph 41 of your statement and the issue of hospitality and gifts, which is 06483 of our pagination, where you tell us that you accepted hospitality, mainly lunch or dinner, from the media in accordance with the relevant guidance, and hospitality was declared in the register. I'm going to call that the hospitality register, and of course that has been made available to the Inquiry. You say a little bit later: "This would not include any occasion when I met casually with a journalist and drinks or coffee were bought on a reciprocal basis." So you're excluding, are you, anything which is minimal and therefore shouldn't trouble the register? Is that your policy or was that your policy?
A. No, I think the word is "reciprocal". So if you are buying and being bought, I don't consider that to be hospitality. So if you buy a drink, you buy one back, I don't consider that hospitality. It didn't come within, in my view, the guidelines.
Q. I understand. Paragraph 42: "I do not consider a casual meeting in those circumstances So you're making it clear, are you, that it's the casual meeting where one round of beer is bought by you and then reciprocated half an hour later, that's not the sort of thing which amounts to hospitality but everything else would, is that correct?
A. No. In that sense LORD JUSTICE LEVESON Does it matter who pays? Whether it's your personal money or reclaimed back or the journalist's personal money? I'm just asking.
A. No, it would have been my own personal money, so you wouldn't claim for those. MR JAY Paragraph 43: "An arrangement to have supper or lunch or attend a dinner or social function with a journalist was considered perfectly acceptable and had many benefits."
A. Yes.
Q. Some of the benefits you've already explained. Was it your practice to drink alcohol at these occasions in the evening?
A. Yes, in sensible quantities, yes.
Q. Okay.
A. And again, as far as I'm aware, the hospitality guidance says that is perfectly acceptable.
Q. It does. Paragraph 47, before I come to the detail of the register, page 06485, the then Deputy Commissioner Mr Godwin advised you, as he did all other management board members, to reduce contact with the media, and that was advice you accepted. Can you recall about when that advice was given?
A. With Tim it was reinforced on several occasions because that was his style, so it would be difficult to say exactly when, but there was a management board or a senior management team meeting where I think it was said, but Tim would repeat it quite a lot.
Q. So far as the phone hacking events were developing, the advice was particularly relevant to you, wasn't it, because of what happened in July 2009 and subsequently; do you accept that?
A. Yes, I suppose I do accept that, yes.
Q. Because the advice to other management board members, although salutary, was less relevant to them because after all they had nothing to do with phone hacking or its aftermath, did they?
A. Yes, but I think it was generally well-known and by many people in a perfectly proper way that I had and had had good relationships with the media going back a number of years, so it was very well-known and, as I say, but I absolutely accept what you're saying in terms of it may have been more directed to me than, say, the director of resources.
Q. But his advice that contact should be reduced is obviously in part evaluative or prescriptive, because it suggesting there might have been too much contact with the media and particularly by you. Would you at the present accept that?
A. I think and Tim will talk for himself I think Tim was of the view that the media were the enemy and we shouldn't be in contact with them. Now, I don't concur with that view, never have done, and I've had some healthy dialogue, debate, with Tim on those points. He took it a different view to me and others.
Q. Of course we'll ask him, but his view might have been rather more direct, and it was this, that as phone hacking developed as an issue, certainly in and after July 2009, it was particularly inappropriate that there should be any interaction between those investigating phone hacking, such as you, and the media, in particular News International. Do you accept that interpretation?
A. No, I don't, actually, because the fact of the matter was that we weren't investigating News International after July 2009. I came to a view then, which no doubt we'll discuss, that there was no any evidence on which to base an investigation, and so to say they were under investigation is not correct. They only became under investigation in January 2011.
Q. But then Mr Godwin's advice was completely wrong because it was predicated on the premise, wasn't it, that there should be less contact with the media because of the phone hacking events developing, so it doesn't matter whether you call it investigation, whether you call it establishing the facts; it is the public perception which he was driving it, wasn't he?
A. But that's if you come from that premise, you're saying that after July 2009 we shouldn't have had any contact with the media at all, and I don't accept that. It's not logical. If we were investigating them, then yes I agree, but we weren't investigating them. The matter was concluded then, there was no new evidence and we always said we would reopen the case if there was new evidence and that became apparent when they provided us with material in January, I think the 26th, 2011.
Q. Okay, Mr Yates. We have, and I hope you have, as part of the material which has been provided by the MPS, the gifts and hospitality register insofar as it relates to you for the period after 1 January 2005. In the bundle I have, it's tab 12, although I'm afraid I don't know the page number on our system. It runs out before tab 11. It's going to be about 06460, but we'll find it about there.
A. Is it in bundle 1 or bundle 2? I have bundle 2. I think bundle 1 is mostly around Select Committee stuff. LORD JUSTICE LEVESON There is a bundle which is headed "MPS master bundle gifts and hospitality", but you may only have been sent a small file which contains your own register. MR JAY Yes, I think that's what happened, if I remember rightly. It runs over about 32 pages. Do you have this?
A. No, I don't well, I may do, but it's not immediately obvious. Just take me through it and I'll be happy with that, if you're happy.
Q. I've also been given but I don't think anybody else has as yet, because the Metropolitan Police Service have kindly provided it to us but we will make this more generally available, a compilation of your diary entries.
A. Yes, I've got that.
Q. Involving contact with the media. I just want to correlate the two, if I may. I'm going to look at one year, which is 2009, so one year in particular.
A. Okay.
Q. According to the diary entry, for 28 April 2009, a meeting was
A. Yes.
Q. a dinner was organised, although in the end you didn't attend, with SPS, Dick F, which must be Dick Fedorcio, and NW
A. Yeah.
Q. who we think must be Neil Wallis. Is that right?
A. Yes.
Q. That was at a restaurant called Luciano's.
A. Yes.
Q. I know you didn't attend it, but can you tell us what the purpose of that meeting might have been? Can you recall?
A. I have no idea. I didn't go.
Q. But if the meeting was going to be for a proper professional purpose, as it was, one would need to know in advance why it had been organised. Can you recall at all why it was set up?
A. No, I can't. I'm sorry.
Q. On 3 June 2009 there was a private appointment in the evening. Nick Candy, you and Neil, that's Neil Wallis?
A. Yes.
Q. Dinner for four at Skalini's.
A. Yes.
Q. Do you know what the purpose of that meeting was?
A. It's it was a private appointment. It was friends. It had nothing to do with policing at all. That's why it says "private appointment".
Q. Who is Nick Candy?
A. Nick Candy is a friend. He works in property.
Q. I think there was also someone called Neil Reading who attended, if I've correctly understood this. If I have, who is he?
A. Neil Reading is a friend. He works in PR. It shouldn't have to be in the diary because it was a private appointment. It just helped me managing my diary. So it's nothing to do with policing at all.
Q. So does it follow that you paid for this or
A. No, I think Nick paid. As I say I think Nick paid, but as I say, it's friends, so there were many times I paid for dinner which don't go in my diary either, so.
Q. I understand. So for these purposes, we're going to regard Mr Wallis as a friend; is that correct?
A. If it says a private appointment, yes.
Q. Would policing issues have been discussed, though, in passing or at all?
A. Absolutely not.
Q. Why do you say that so categorically, Mr Yates?
A. Because it's not of interest to the others there and it's it just wouldn't be it wasn't the purpose of the dinner to go and discuss policing. It was to go and have to go out with friends and enjoy a dinner.
Q. I understand that, Mr Yates. Did Mr Wallis discuss the media world at all, or the News of the World in particular?
A. Not that I can recall. This was it's more likely to be discussions about boring stuff like football, to be honest.
Q. Well, not necessarily boring, depending on the precise nature of the discussion. Did each of you that's you and Mr Wallis support the same team?
A. No.
Q. All right.
A. He comes from the Manchester United end of life and I come from the Liverpool end of life, so.
Q. Did you go to football matches together?
A. Yes, we did.
Q. Was this on occasion in Manchester and on other occasions in Liverpool?
A. No, I mean probably two or three times I've been to a football match with him.
Q. I didn't catch that.
A. Sorry? Two or three times.
Q. Was it once in Manchester, twice in Liverpool?
A. No, I don't think I don't think he's I don't think I let him go to Liverpool, so it was Manchester and I think Arsenal when Liverpool were playing Arsenal, I think.
Q. May I ask you this: who paid for the tickets?
A. On the Liverpool/Manchester United, he paid for the tickets, and I paid for the travelling, so it's sort of pro rata, really.
Q. It sounds as if Mr Wallis was, at least at that stage, a close friend of yours. Is that fair?
A. He was I've always been completely open that he's a good friend. He certainly was a good friend. I haven't seen him for nigh on a year.
Q. Inevitable, wasn't it, Mr Yates, that on these social occasions if you're travelling up from London, whether it be to Manchester or Liverpool, you're with Mr Wallis for at least a couple of hours on the train either way?
A. Yes.
Q. There's going to be discussion around what you do professionally and around what he did professionally. Would you accept that?
A. In the margins, yes, but, seriously, it was far more about domestic life, family life, football and, you know, there was a life outside the Met, and I'm sure there's a life outside of News International for him.
Q. So there was no, as it were, seeping in to professional or work issues during these social interactions, is that right?
A. As I say, completely in the margins. Of course there must have been, but, you know, nothing of a you know, I can I know a number of lawyers, and count them as good friends, and we can talk about the legal system without talking about particular cases. I know bankers, you can talk about banking systems and not talk about individual accounts. You'd have to accept there's a sort of element of professionalism and sound judgment that stops you going into areas where you shouldn't go into, and I think it's you know, the inferences shouldn't be there.
Q. Are you assuring us that Mr Wallis kept to the proper boundaries and did not share with you matters which related to his work?
A. Well, you'd have to ask him himself, but I certainly didn't hear anything from him that caused me concern, no.
Q. To go back to your diary, 9 September 2009, another private appointment: dinner with Neil et al, and then it says "spk", which must be speak, and then the initials KB at a restaurant called
A. She's my PA.
Q. Pardon me?
A. KB is my was my PA.
Q. Thank you. At a restaurant called Scott's, which I think is in Soho. Again, obviously it doesn't feature in the actually, I think on this occasion it does. Just bear with me. No, it doesn't feature in the gifts and hospitality register, I suppose because this was a private appointment; is that correct?
A. Yes. For all private appointments, read private.
Q. Again, it's the same points that you would make that there was no improper discussion with Mr Wallis at any stage?
A. No, absolutely.
Q. Just bear with me. 1 October 2009 is another private appointment, dinner with Nick Candy and Wallis at a place called Cecconi's, this time in Burlington Gardens. It exactly the same point, is it?
A. It is, yes.
Q. A lunch with Mr Wallis organised for 14 September I assume was cancelled. He was a very close friend of yours, wasn't he?
A. He was a good friend, yes.
Q. 7 September it's out of sequence in the diary as has been compiled there's an entry this time in the mid-afternoon, "Mr Wallis to NSY", which obviously is New Scotland Yard, "arranged direct by JY", which is you. Can you recall why Mr Wallis went to New Scotland Yard to see you on that occasion?
A. What was the date, sorry?
Q. 7 September 2009.
A. I think there were several attempts to get an appointment with him, myself and Dick Fedorcio regarding potential work, I think. I can only think it must have been that.
Q. Potential work for Mr Wallis; is that right?
A. I think that I'd imagine that's what it is, but I can't be certain in terms of the timing.
Q. Is this the business surrounding Mr Wallis' company, Shami?
A. Yeah, I think so, yes, but I can't be certain.
Q. So you think that this was a meeting which related to that matter? Have I correctly understood it?
A. I think it was with Dick Fedorcio, but I can't be absolutely certain without seeing the diary entry.
Q. How many of these meetings took place surrounding the Shami issue and Mr Wallis? Can you recall?
A. I think one or two in terms of the work he was doing for us. Is that the question, sorry?
Q. I think just the number of meetings, and you've given your evidence about that.
A. Yeah.
Q. This was about two months after you were establishing the facts in relation to News International, News of the World and Operation Caryatid on 9 July
A. 9th, yes.
Q. When you were establishing those facts, was it ever suggested to you that the conspiracy, if I can use that term, went quite high in the organisation? Or might have done?
A. No, absolutely not. It was I saw you taking through the briefing notes yesterday exactly what was there, and there was certainly no evidence to suggest that, so absolutely not. And I was you know, the level of reassurance I had on that was from a number of pointers, both from sort of Peter Clarke and the late John McDowall in terms of their seniority and their oversight of it, some exceptionally good detectives from specialist operations who were involved with it, the DPP concurred with my view, counsel
Q. We're going to come back to that.
A. We will be covering that?
Q. We will certainly be covering that.
A. Thank you.
Q. 5 November 2009 in the diary, this is an entry which does appear in the gifts and hospitality register. The register says: "Dinner, News of the World (to improve understanding of each other's operational environment)." Which is a formulation one sees very commonly in the gifts and hospitality register whenever one is meeting a news organisation.
A. Yes, it's common across it's not just me, it's common across, I think, all the rest, isn't it?
Q. We'll see whether it's exactly the same for Mr Hayman.
A. I think it was a form of words that was I had nothing to do with the formal words, but that was the formal words that appeared to sort of encapsulate it and satisfy the police authority.
Q. Because looking at this register you'd have no idea who the dinner was with, but one does from the diary entry: "Dinner meeting with Colin Myler and Lucy Panton." And this is the Ivy Club, which apparently is upstairs from the Ivy restaurant.
A. Yes.
Q. What was going on on this occasion, Mr Yates? What was discussed?
A. Again I think it was probably I think it was my in terms of coming into the CT job, I think it was the first time I'd met Colin Myler. Again it was exactly what it says, it's trying to understand perspectives from one of the biggest selling or then biggest selling national newspapers what their big issues of the day were, what our big issues of the day were. It's talking about it at a sort of strategic level, if you like, and helping to understand both his perspective and my perspective.
Q. You tell us in your statement that Lucy Panton was one of the most active members of the Crime Reporters Association; is that right?
A. She was certainly one of the most visible ones in that sense, yes.
Q. She was and probably still is married to a detective in the MPS; is that right?
A. Yes, as far as I'm aware.
Q. What was the nature of your dealings with her? I'm not suggesting for one moment sorry, we're getting an echo on the system. I think it's stopped.
A. Am I too loud?
Q. No. I mean, how often did you meet with Lucy Panton?
A. I've known Lucy, like I've known a number of the crime reporters, for many, many years. I think I put in my statement about a decade. So I've known her an awful long time. It would be difficult to say how often I'd met her, but probably two or three times a year, I would say. I don't know.
Q. This is an expensive restaurant, isn't it? It goes without saying. We get the idea with the Ivy Club.
A. I think all restaurants in London are expensive, Mr Jay.
Q. Okay, Mr Yates, but this is at the expensive end, and I mean you don't get out of the Ivy Club, possibly, for less than £100 a head. Obviously alcohol was bought as well, wasn't it?
A. Yes, absolutely.
Q. Was this an appropriate interaction with Mr Myler and Lucy Panton, in your view, looking back on this?
A. I don't I mean, in terms of what we know now, yes, it clearly as I say, in terms of what has happened in the last three or four months, yes, I suppose it is, but it certainly wasn't at the time in terms of what we knew about the events, Mr Myler's position, he was the new editor who'd come in, and I go back to what I said at the start. I think it's hugely important that senior police officers have a relationship and interact with the media, that they are not the enemy, they are occasionally critical friends and occasionally much worse.
Q. Mr Myler's position we heard his evidence to this Inquiry was that there was one rogue reporter. Was that your understanding of the position? Was that affirmatively established to your satisfaction that there was only one rogue reporter at the News of the World?
A. In terms of what we knew and what the evidence was, yes, that was the position in July 2009 and remained that position up until January 2011. We had no other way of affirming it either way.
Q. In your opinion, there was no evidence at all to suggest that others might be involved; is that correct, Mr Yates?
A. Well, there was the you know, the long spoken about "for Neville" email, which again was covered in terms of what its value to an investigation was on several occasions, not least by the DPP and counsel in terms of what it would value its evidential value. There was nothing else that we knew differently then.
Q. Okay, we'll come back to that, but I'm still on this diary. There's a meeting with Nick Davies of the Guardian, which is quite interesting. 30 November 2009.
A. Yes, got it.
Q. Which is probably at New Scotland Yard.
A. It was.
Q. We know from the time of day that it wasn't going to be lunch, and indeed the diary entry, at least as transcribed to me, says: "Meeting with Nick Davies, Guardian, 30 minutes only." You're making it clear that that's the limit of your time for Mr Davies, isn't it? I'm not saying you're wrong about that, but this is going to be an abbreviated, short as possible, professional interaction, isn't it?
A. Well, if you looked at my diary in its broader context, you would see it's sort of fairly round from dawn till early dusk. I imagine that's because it was considered important to have the meeting. Nick was quite a challenging individual for us to deal with in a perfectly proper respect, and we felt there would be some value in having that meeting with him. We had a follow-on meeting, I think, with the editor and the deputy editor around exactly the same issues in terms of just trying to explain what the MPS position was around phone hacking.
Q. And on 15 December 2009 in the diary: "Meeting between JY, Dick Fedorcio and Neil Wallis."
A. Yeah.
Q. This probably relates, does it, to the Shami employment issue?
A. Yes. I think, if I recall it, I don't think I actually made the meeting, but I think you're right, Mr Jay, that's what it was about.
Q. 9 April 2010. This is a CRA lunch.
A. Yes.
Q. At a place called Racine's in Knightsbridge. Were there only four other people there, John Twomey, Lucy Panton and Justin Davenport with Sara Cheesley attending, or was it wider
A. No, that was it. It was the sort of practice of specialist operations going back several years, before way before my time, to arrange these to arrange these almost monthly, although I never made them monthly, I think I probably got to them only every three or four months, with the CRA, where Sara Cheesley calls the press officer.
Q. This one isn't in the gifts and hospitality register. Is there a reason for that?
A. I can only think that's an oversight. It's in the diary. Maybe I didn't make it, I don't know. If you look what you're of course not pointing out, Mr Jay, is the number of meetings that were cancelled during those years, which were probably more than the ones I attended, so I think that's probably helpful to point out.
Q. Thank you. 21 May 2010, again in the diary. It's not in the gifts and hospitality register, but it may be that this one didn't take place.
A. I don't think it did.
Q. It says "Dinner with Neil then it says "TBC". Are we to deduce that it didn't take place?
A. Yes. It probably took place in four days' time.
Q. Yes I was going to come to that, 25 May, private appointment: "NC". That's Mr Candy, I think, isn't it?
A. Yes, the private appointments, Mr Jay I shouldn't have them in my diary.
Q. Well. It's at somewhere called the Bar Boulud, Mandarin Oriential. NC confirmed booking. So it suggests that he probably paid?
A. He may well have done, yes.
Q. Mr Wallis was there again, wasn't he?
A. Yes, the same four people who I have dined with probably three times that year. As friends.
Q. Another private appointment, Neil Wallis, 10 June 2010. Do you see that one?
A. Yes. But he was no longer working for News International. I think he was working for us then.
Q. Also been transcribed as a diary entry for 3 August 2010, although this one appears to have been postponed. It's a drink with Ron McGivern(?) and possibly Wallis.
A. Yeah, didn't happen.
Q. I think the reason why this was drawn to the Inquiry's attention is the email to the right-hand side. Do you see that? "Hello John." And there's a rather disparaging reference to Mr Wallis being drunk in a restaurant and you trying to control him.
A. Yeah
Q. Do you recall that?
A. That didn't happen. It's not my email. Give us a break.
Q. This is coming to an end shortly. 24 August 2010.
A. What you I can understand why you are ignoring it is all the other appointments with other sections of the media, the Guardian, the Independent, Channel 4, ITN, which of course show the balance of the level of media contact, which was actually way in favour of those people over News International, in my view, if you did the counting.
Q. Thank you.
A. I'm just making a point.
Q. Yes, fair enough, Mr Yates. LORD JUSTICE LEVESON But is there a difference, Mr Yates, if you're going to be involved in investigating anything, between the professional contact that you might have with a newspaper or organisation to further the interests of the Metropolitan Police and a relationship with somebody which might be perceived I mean perfectly innocently, you're entitled to be friends with whomsoever you wish, but who might be perceived to impact on your professional judgment in circumstances that you should be careful to avoid?
A. I agree with you, and what I've done in the last year is to cut off contact with someone who was a good friend because of the way things had developed, but from 2005, 2006 onwards, whenever Caryatid started, there was never any question of Mr Wallis being involved. He hadn't resigned, he continued to work at the newspaper. There was no evidence in July 2009, there was no evidence in the New York Times, so LORD JUSTICE LEVESON It's not that he personally would necessarily be involved, but he was associated with an organisation that certainly was being the subject of scrutiny, whether correctly or not, and I'm sure that you in your experience from your other investigations have more than enough scars of problems of relationships.
A. Yeah, I mean I the way this has been described in the past in terms of if a Detective Inspector at Bromley police station gets arrested in a big organisation gets arrested for corruption, that doesn't mean you cut off contact with the rest of the organisation. So as far as we were aware, you had Mr Goodman, as a cog in a large organisation, arrested for wrongdoing and sent to prison. That, as far as I was aware at the time and others were aware, no other evidence to suggest others' involvement, does that mean you cut off relationships with a very influential section of the media? I don't think it does. LORD JUSTICE LEVESON I don't think it necessarily does either, but that's rather different if you are then required to make judgments about the existence or otherwise of evidence, and that you then run the risk of somebody saying actually you have something of a not an interest
A. Because there's so many formal checks and balances and informal checks and balances in these matters. Public perception, I accept your point, my Lord, but if you want you saw Keith Surtees yesterday. If you're honestly suggesting that someone like Keith Surtees would accept a perverse decision just because I was the senior officer, it's just nonsense, sir. These are the informal checks and balances that take place as well, and, you know, I absolutely know what I did on July 9th, I know what I was provided with, I know the judgment I made. You know, time has shown that to be and what's happened not the greatest call, but at that time it was the right call, and it wasn't influenced in any way, shape or form by other matters. LORD JUSTICE LEVESON Those are two questions, aren't they? First of all, whether the basis for the call, and secondly whether whatever basis there was for the call, it was justified by events or and finally, whether what happened thereafter. I understand the separation of the issues.
A. Yes. Thank you. MR JAY Mr Yates, in relation to the diary and the register, the diary shows, looking elsewhere now, that there were occasional meals, usually in the evening, with Mr Witherow, editor of the Sunday Times.
A. Yes.
Q. On each occasion, those do feature in the gifts and hospitality register. Do you follow me?
A. Yes. They all should. But if there's the occasional oversight, that's regrettable, but it's what it is.
Q. But your interactions with him were always, as it were, a deux, there weren't other people there. Do you follow me?
A. Yeah, that's right.
Q. Then on perhaps more occasions you're having drinks with a journalist called James Hanning, which this Inquiry's heard from, of the Independent. Does that match your recollection?
A. Yeah, it does, and James was a sort of very interesting interrogator, small "i", and challenging some of my many of my assumptions and preconceptions around phone hacking, and I found it extremely useful to talk to him because he was giving a completely different view about the public perception around what had taken place. So I found that extremely useful.
Q. So he was telling you, was he, from what he'd heard and knew, this activity was far more widespread than you believed? Is that right?
A. And it was that's what James' view was, and he can speak for himself, I don't want to put words in his mouth. But from my perspective what I was trying to get across to him was the limitations on what could have been done in 2005/6 when I wasn't responsible, the exercise I undertook in 2009 when I was responsible, and the continuing attention I gave it, which I think is probably clear from the paperwork, from July 2009 onwards until January 2011.
Q. I mean did he share with you his belief, albeit in this informal context, that the conspiracy, as it were, went high up in News International?
A. He was one of those ones that would (break in transmission)
Q. Sorry, we didn't catch that.
A. He was one of the ones sorry. He was an individual, I think, and again he can speak for himself, I don't want to put words in his mouth, but James did see a grander conspiracy, and, you know, the discussion was around this is what we've done, this is why we've done it, and I believe again he can speak for himself that I would have been very helpful in terms of putting context around why police do certain things and why police can't do certain things.
Q. I'm not dealing here with the rights and wrongs of this; I'm dealing solely with what he told you, and so
A. Yes.
Q. you say he can speak for himself, but what in fact is important is what you can tell us as to what he told you, and he was telling you
A. Okay, if the point you're getting to is sorry to overspeak. If the point you're getting to is did he give me any nugget of evidence that enabled me to do anything with it, the answer is no. And if he had done, of course I'd have taken it forward.
Q. Yes. But what he was doing, though, was casting or perhaps this is what ought to have happened casting doubt in your mind as to the propriety of you continuing to have frequent social interactions with Mr Wallis. Wasn't he at least doing that?
A. He had a view about it was not so much I can't actually recall the exact details of the conversation it wasn't so much about Wallis, it was about others. He had a view. He had a view about what had taken place. It was actually certainly far more about other senior people in the Murdoch stable, as it were, than Mr Wallis. He by then didn't work for them, of course.
Q. I go back to Lucy Panton in paragraph 65 of your statement.
A. Yes.
Q. You refer to an email that you were shown from James Mellor to Lucy Panton, 30 October 2010. The email itself is in our bundle at our page number 06530. Tab 3, probably, of the bundle you have.
A. I have it, yeah.
Q. It's a rather odd email to get one's mind around without knowing a lot more of the context.
A. I can help you with the context, probably.
Q. Yes. Very briefly, Mr Yates.
A. Sorry?
Q. Please do, but very briefly.
A. The context was around the background is the weekend of that 30 October was I think it was about two or three days beforehand there had been a printer cartridge bomb found on a DHL flight up in the West Midlands Airport, so there was a lot of interest around what had happened that weekend.
Q. Why you were shown this email and it may have been the MPS who showed it to you was the last two lines: "Thinks John Yates could be crucial here. Have you spoken to him? Really need an exclusive splash line so time to call in all those bottles of champagne
A. Yeah.
Q. One interpretation is, well, you'd been providing bottles of champagne to Lucy Panton; it was time to call in the favour, as it were, or it may have been the other way around. But you can see the point. I think it's the other way around.
A. Yeah, and I sort of put a I mean, firstly I have no clue who James Mellor is, I never met him in my life. Secondly, it's not my email and it's a turn of phrase, and thirdly, it would indicate even by October 2010 that those perceived favours had never been called and I hadn't provided them with anything before and that's the position. So I can't account for yes, it's a phrase, and I think it's slightly unfair that it's put to me in that way, and I've said I put a completely different spin on it to you.
Q. The only spin I put on it and I prefer the word interpretation, actually, rather than spin is that Lucy Panton is plying you with champagne, that was known about to James Mellor, and the suggestion is that the favour needs to be returned and that's what this clearly says, doesn't it?
A. It's a turn of phrase. No, I hadn't been plied with champagne by Lucy Panton and I think it's an unfortunate emphasis you're putting on it.
Q. I'll only ask one other question: did you ever drink champagne with Lucy Panton?
A. There may well have been the very odd occasion, yes, when a bottle was being shared with several people, but no in the sense that you're suggesting.
Q. This email was drawn to our attention, and therefore it was right to ask questions about it, but I leave it there. Can I move on to the next section of your witness statement?
A. Paragraph?
Q. This is paragraph 66, our page 06489.
A. Yes.
Q. This is Mr Wallis coming to work for the MPS. There's detailed evidence or rather there's a statement from you, it's not that detailed, but it runs over a few pages your exhibit JMY3.
A. Yes.
Q. Mr Wallis coming to wok for the MPS. We'll take JMY3 as read, but the conversation you had with him, when you referred to evidence you gave to the Home Affairs Select Committee
A. Yeah.
Q. wanted "absolute assurance there was nothing in the previous phone hacking matters still being reported and chased by Nick Davies that could embarrass him, me, the Commissioner or the Metropolitan Police Service. I received categorical assurances that this was the case." What was the
A. Yes.
Q. value of those assurances, Mr Yates?
A. It was the proper assurances and the proper due diligence, as it were, is of course done through the normal channels of the procurement branch in the Met. It was a type of formal reassurance to me that there was nothing. I wanted to be doubly certain. I knew the rumours that were swilling around potentially, and I just wanted to be absolutely certain.
Q. But he was hardly going to say yes to you. You, of course, are a policeman, and an extremely senior policeman. He has to say no, whatever the truth of the matter. Do you see that? Asking Mr Wallis for a categorical assurance is entirely worthless, isn't it?
A. I don't think it is, actually, because I think it is me saying, "Come on, Neil, is there anything, anything, anything, that's going to embarrass you, me or the Met in the future?" I felt it was valuable. You know, it would if anything, it would put him off taking the job if he thought there was something, rather than say, "Oh yes, lots to embarrass you." He might just say, "Do you know what, I don't think it's worth it", or something. So it was me sort of reinforcing those facts with him.
Q. The offer of work by the MPS to Neil Wallis' daughter Amy, that's paragraph 74 of your statement. That's a matter which has been considered elsewhere.
A. Yeah. Considered elsewhere, of course there was absolutely no wrongdoing. I've been completely cleared of any sort of wrongdoing regarding that.
Q. Questions of course were asked by a Select Committee, but the gist of it is this, that you passed on an email and said words to the effect, "Let me know what happens to this so I can manage expectations"; is that right?
A. Absolutely. So I was as I've said before, I was completely equivocal about whether Amy got the job or not, and I had no influence on it at all. As has been confirmed.
Q. Just the appearance of this, Mr Yates. You're an Assistant Commissioner, you're passing on the email to someone in human resources
A. To the sorry. I was passing it to the director of human resources.
Q. Yes, but that person knows by the very fact that you're passing on the email that you know the father.
A. Yeah.
Q. That's the reason why expectations need to be managed. There is at least the perception of influence by you, which might be said by some to have been or at least give the appearance of being causative in Amy Wallis getting the job. Do you see that point?
A. No. I disagree with you. This is passed to a peer on the management board who had a reputation for telling it as it is. If he thought there was anything inappropriate, if you were to read out the email from Martin Tiplady, you would actually see what he said about that. So no, I don't accept that and of course the IPCC have agreed with me.
Q. I move on to a separate issue now, that of leaks. Paragraph 85 of your statement, page 06496. Cash for honours
A. Page 5?
Q. Paragraph 85.
A. Yes.
Q. You say you have always denied being the source of any inappropriate information reaching the public domain and still do. It was being suggested by many that you were the source of leaks of information into the public domain, wasn't it?
A. It was, but that was the inference that was put out, I don't know if it was ever put quite as starkly as that, but it's not true.
Q. So your clear evidence is that you were not the source of any leaks in relation to that investigation; is that right?
A. I don't put out anything in the public domain that I wasn't entitled to do so by virtue of my rank or authority by somebody else, no.
Q. That's a slightly different formulation. It suggests that you might have put things into the public domain, but feel that it was appropriate to do so by virtue of your rank and status?
A. No, no, no. Okay. No. In terms of knocking down stories that weren't right, yes, I did that on at least a couple of occasions, because we were saying if that story goes to the public domain that will distract the team for days on end, create a media furore that is completely unnecessary and you would say you provide the items to say you're completely wrong. But I stand by what I put in my statement that the salient facts and the in media terms the salacious facts about that enquiry remain known to very few people and that's the way it's always remained. We managed to interview a certain Prime Minister four times with no one knowing so I think that bears testament to the tightness of the team and myself during what was a very testing period.
Q. Can I move now to the phone hacking investigation, which starts at paragraph 95. You feel now, this is paragraph 96, our page 06498: "It is now very clear from the outset News of the World deliberately failed to co-operate with the original investigation and have seriously misled a variety of people and institutions over the past several years."
A. Yes.
Q. The reference to "from the outset" is presumably a reference to what, do you mean literally by that? What happened on 8 August 2006 and subsequently; have I understood that right?
A. Yes, I think that is my view. It's clear that both from the sort of the solicitors' and lawyers' letters that were traded from the earlier investigation, that there was a deliberate obfuscation around all these matters, and that they clearly had material which they didn't provide us, and didn't provide until some five years later, January 2011.
Q. Weren't you told, though, by Mr Williams Mr Surtees, of course, wasn't part of what happened in July 2009 that News of the World had been obstructive in the police's view in August/September 2006?
A. There's obstruction that which I heard about yesterday and I knew about in terms of sort of a slight lockdown at Wapping when police turned up, and then there's the obstruction that has to be a deliberate obstruction that would foil us in terms of getting a production order. When lawyers wrote, as they did, on numerous occasions the opening paragraph was always the lines of "we intend to co-operate completely with your enquiries". You would know and I would know and our lawyers told us that that would foil the ability to get a production order then. That's my understanding, of course. I wasn't part of that team. That's my understanding.
Q. You may well have followed the evidence that was given to this Inquiry yesterday, but it was I think I'm right in saying the view of all three officers from whom we heard yesterday at the time that they felt News of the World were being obstructive. Was that communicated to you by Mr Williams in July 2009?
A. I recall sort of the phrase a sort of Mexican stand-off at Wapping HQ when they turned up with a warrant, but I think that would happen at a lot of newspaper offices if the police came in with a warrant. I think the newspaper lawyers would want to test that warrant and do everything they could do to safeguard journalistic material. I wouldn't necessarily think that would be an unusual turn of events at a newspaper.
Q. Even if the police had a warrant which excluded from its ambit journalistic material? Is that still your evidence, Mr Yates?
A. It's difficult what happened in 2005/2006 obviously had nothing to do with me and I can't make those judgments. The important thing is in 2009, when it did come under my umbrella, that a production order was was just not relevant any more. So you've heard the evidence from Mr Clarke, Mr Williams and Mr Surtees around those matters. Obviously what they say is correct.
Q. There's a difference between whether it might have been possible to obtain a production order and whether News International or more specifically those at the News of the World were obstructive through their lawyers in failing to reply to police requests in late August and September 2006. Do you see that?
A. But that is it wasn't part of my remit at that point, so you're asking me to comment on something that was for others to do. My remit was 2009 onwards.
Q. It's part of the inferential picture one might draw as to whether there was evidence generally speaking against others at the News of the World. Do you see the relevance of it from that point of view?
A. I do and I don't. I mean, the inference of was there other evidence, you will see the note from counsel dated 14 July, we could go to that, I'm not sure where it is in the
Q. We've seen it yesterday, it's Mr Perry's note.
A. But it's a very important note from my perspective, Mr Jay, because what it
Q. Please carry on.
A. Thank you. What it says is that leading counsel saw the material, albeit I know in terms of the indictment they were looking at it, but they say in that I haven't got it in front of me that we were not told about others' involvement, and the crucial phrase "nor did we see any evidence of others' involvement". So I have counsel, the leading counsel, and I knew junior counsel had spent a considerable amount of time, two and a half, three days, going through all the material giving me that level of assurance that there was no evidence of others' involvement. LORD JUSTICE LEVESON I'm not sure it means that, does it? MR JAY Does it sorry.
A. Well LORD JUSTICE LEVESON Well, we'll go through it, Mr Yates. It's quite important. MR JAY I must say
A. It is important.
Q. the inference I drew from it, and possibly Lord Justice Leveson, was different. I think they were saying, in answer to your suggestion that there was no evidence, they had been shown no evidence but that doesn't mean that there wasn't any evidence. Do you see the difference? LORD JUSTICE LEVESON Let's have a look at it. MR JAY I think it's in your bundle there. We have it at tab 163 of a much bigger bundle. Do you have the note there to hand, Mr Yates?
A. I jump from 18 to LORD JUSTICE LEVESON It's behind
A. Yes, I've got it. LORD JUSTICE LEVESON It's behind divider 23.
A. Yeah, I've got it. It's my 19, but I have it. My particular point is the sixth line down: "We were told there was not and we never saw any such evidence." I take that to mean that Mr Mably had reviewed all the unused material and in that exercise he had never seen any other evidence to suggest others were involved. MR JAY No. This was Mr Perry and Mr Mably before Mr Mably had reviewed the unused material making it clear that at the conference on 21 August 2006 the specific questions were asked: was there any evidence against others? And they were told there was no such evidence and we never saw any such evidence.
A. Yes.
Q. Do you see that? So what they might be saying well, there are a number of things they might be saying by implication, but one of them is: don't draw the inference from our advising conference that there was no evidence; merely this: we were told that there was no evidence and we never saw it. Do you see the difference between that?
A. No, I don't. This is written on 14 July 2009. Yes?
Q. Mm-hm.
A. And Mr Mably and Mr Perry are putting their name to a document that says, "We were told there was no evidence and we never saw such evidence". Mr Mably had done the disclosure exercise allegedly seeing all the unused material in 2006, 2007, I'm not sure when the (inaudible) are, and he's saying two years later, having done that exercise, he never saw any such evidence. LORD JUSTICE LEVESON But the exercise Mr Mably was doing wasn't to decide how the investigation should proceed. As I understand it, he was never asked that question. The question which Mr Mably was dealing with was whether there was any material which might exculpate those who were being charged. In other words, he was doing a CPIA piece of work. Now
A. I completely LORD JUSTICE LEVESON is it really fair to place so much reliance on this incidentally, I want to know about dates of this, because I don't quite understand them to justify the sort of conclusion that you were reaching when you came to review the matter in July 2009? That's the issue.
A. It's one limb that was helping me form views, both on July 9 and thereafter, as we you know, as we've seen from the information and stuff I've submitted, it was a constant exercise over the next 18-month period almost, around, you know, is there anything new, have we treated the victims appropriately, all those issues. This was quite an important limb, I would say, in terms of saying, well, okay, he was looking at it from the CPI perspective from the indictment, but if counsel is telling me that they never saw any such evidence, then of course I'm going to place some reliance on that. But it was only one limb of a series of aspects which enabled me to come to that view, if you like. MR JAY Mr Yates, there are two points here. The first point is that you had already stated your view in your press statement on the afternoon of 9 July, and this
A. On?
Q. 9 July 2009. This note from counsel, of course, postdates your press statement, doesn't it?
A. It does, and the press statement was solely dealing with establishing the facts about the Guardian article, and there's a caveat at the end of that article, you'll recall, which says, "We need to do everything possible to check we've done everything appropriately around victims", so I sort of left a slight open end to say I was going to look at this afterwards very carefully as well, and I think the documentation you see bears that out, but it wasn't just an eight-hour exercise that has been seen by staff, it was a continuing exercise of reviewing, considering, reflecting about, you know, whether we were on the right track and whether we needed to do something different.
Q. We'll come back
A. That 14 July
Q. We'll come back to that point, because it's important, but I do suggest to you you misunderstood what leading and junior counsel are saying, but the review of the evidence which Mr Mably carried out after the conference on 21 August 2006 was merely for the purposes of the 1996 Act and wasn't to advise the police as to whether to start investigating other journalists. It was focused solely just wait for the end of the question, Mr Yates on the Goodman/Mulcaire prosecutions and whether there was any exculpatory evidence. That's what the law required, wasn't it?
A. Well, if you read out the sentence in the note, I think it's abundantly clear what's there, and on any reading, exculpatory, CPIA or whatever, they are saying they've done the exercise on CPIA and they never saw any such evidence about others' involvement. I just I can't I know you're cross, Mr Jay, but I can't see any other reading of it that would you know, it's there.
Q. We'll see whether there was any evidence in a moment, but can I deal first with paragraph 106 of your statement, our page 06501.
A. Yes.
Q. Where you say: "The advice described at paragraph 105 That's the advice as to the true meaning of section 2 of RIPA.
A. Yes.
Q. dictated who the police considered to be victims."
A. Yes.
Q. "I have confirmed in evidence to various select committees the fact that the activities of Glenn Mulcaire affected many people. However, I have also said in evidence to the same committees that in the light of the legal advice received, the police were only able to positively identify a small number of victims, ie where the offence could actually be proved to the requisite evidential standard as per paragraph 105 above." And then you say that in fact the only person in respect of whom that was conclusively proved was Mr Lowther-Pinkerton. So is this right, that your definition of victims for the purpose of notifying people is far narrower than anybody else's, it's confined to those in respect of whom there was conclusive proof of unlawful interception before the voicemail was read by its intended recipient? Is that correct?
A. That is correct. That is definitely what I thought at the time, and it was in good faith, based on the briefings I'd received, but I absolutely accept now that I got that wrong and I made a fundamental misjudgment there. So I've said that before in other forum and I do regret that.
Q. Okay, can we move forward to the events of 9 July 2009. This is paragraph 111 of your statement, page 06503.
A. Yes.
Q. You wrote yourself a file note, which is 06539, under your tab 7.
A. I have it. It's in the statement itself.
Q. Is this a contemporaneous file note?
A. Contemporaneous in terms of that day, yes. I can't actually remember when I did it. It was within sort of 24 hours of doing it. It was taken from the rough scrawl into a proper file note. So yes, contemporaneous.
Q. So the request by Sir Paul Stephenson was to establish the facts around the case. You set out the approach you were going to adopt in relation to establishing the facts, and then you say in paragraph 8 you're going to deal as well with approach to victims, how they were managed and dealt with and the impact of any further enquiries if deemed necessary on them. Is that correct?
A. Yes. Yes.
Q. There are two exercises here. You're going to establish the facts, and once the facts are established, you're going to set out your opinion, and then there is a separate exercise, which is ancillary to that, which is the victim notification management exercise. Is that correct?
A. Yes. That's right.
Q. Am I right in saying that the establishing the facts exercise was completed when you gave your press statement that afternoon?
A. Yes, about 5.30-ish, I think.
Q. Whatever the time was, the press
A. Yes, it was.
Q. You established the facts. Can we establish when the fact-establishing exercise commenced? What time of the morning do you say it commenced?
A. I can't recall exactly. I think Paul Stephenson was up at an ACPO conference. The article would have been in our press cutting, would obviously have raised issues without Paul asking me to do anything, so I imagine first thing in the morning, sort of 7.30, 8-ish. But I can't in terms of that time, I would have been you know, the sort of battle rhythm of the Met was to review press cuttings first thing and see if any issues arose, and clearly that was part of the specialist operations investigation that came under specialist operations in the past, so I would have been looking at it then.
Q. Yes, but that was before Sir Paul Stephenson asked you to do anything about it, wasn't it?
A. Yes. I would have been considering it then. You know, it would have been clearly of interest to me, Mr Jay.
Q. Yes, interest, it was vaguely on your radar because you were looking at a whole range of press cuttings, weren't you?
A. It would have been more than on my radar. It would have been of significant interest to me because I was then in charge of SO and this was an SO job.
Q. You're not trying to persuade us, are you, that this was part of the establishing the facts exercise that Sir Paul Stephenson was later on going to ask you to do, are you?
A. No.
Q. Because that didn't start until 11.00 in the morning, did it? Look at tab 8, our page 06540.
A. I don't have it. My numbers are all different. What's the
Q. Tab 8.
A. the document?
Q. Your tab 8. LORD JUSTICE LEVESON Hang on. MR JAY Our page 06540.
A. No, my tab 8 is about the Information Commissioner. Would you give me a hint LORD JUSTICE LEVESON It is your tab 3, I think.
A. Oh, I see, the Gold Group minutes, yes, I've got it. MR JAY I have it in tab 8. LORD JUSTICE LEVESON I have it in tab 8 too but I also have an exhibit list to Mr Yates' statement, which I can use to correlate it. MR JAY Thank you very much.
A. Thank you, my Lord.
Q. The only point I'd note, Mr Yates, is this: this meeting didn't start until 11 am, did it?
A. No, that's the formal meeting where everyone is present and everyone can pool their knowledge or whatever. That's the formal meeting. There were several meetings going on way before that that I'd have been briefed on and given insight into what this was about.
Q. But who was doing the briefing? The person you needed to hear from in particular was DCS Phil Williams; is that right?
A. There were several people involved. Clive Timmons was involved, Keith Surtees was involved, Kevin South there were numerous people who had worked on the inquiry at whatever level and those informal briefings would have started almost immediately, but this was a formal meeting to discuss the facts and record decisions in the way that you can see there.
Q. I know we're trying to get to our eight hours by one route or another, Mr Yates, or indeed you are, but
A. Mr Jay, can I assure you I'm not, and I don't quite understand why you're suggesting that.
Q. Well, because
A. This was a simple exercise and one of a number of exercises that the Commissioner or Deputy would ask ACs like me to do almost on a weekly basis. It was an article in a newspaper, and it was no more, no less than that. So the fact that I sort of cleared my diary and did something relatively formal around this, recognising some of the challenges, is actually qualitatively different than many times you'd do it. So it's what it was. It was an article in a newspaper. Events make that look very different, I know, but give me the credit, this was an article in a newspaper, that's what it was about. It wasn't a formal review. LORD JUSTICE LEVESON I think we're going to have just five minutes because we've been going for an hour and a half and the shorthand writer needs a break and I think it might be just a good idea. Five minutes.
A. Thank you. (1.32 pm) (A short break) (1.40 pm) MR JAY Mr Yates, can we go back to 9 July 2009?
A. Yes.
Q. And the Guardian article, which I have under tab 6, it's page 06536. LORD JUSTICE LEVESON It's your tab 1.
A. Thank you. MR JAY It refers to the settlement of legal cases. Third paragraph: "Today the Guardian revealed details of the suppressed evidence which may open the door to hundreds more legal actions as well as provoking police enquiries into reporters who were involved and the senior executives responsible for them." And then there's various comments about difficult questions which might have to be asked.
A. Yes.
Q. So the general thrust of the article was that this was potentially a conspiracy which embraced others at the News of the World and possibly went quite high up in the organisation. Is that correct?
A. That's the tone of the article, yes.
Q. And Mr Wallis at the material time was of course the deputy editor of the News of the World, wasn't he, in July 2009?
A. Yes, he was. I can't remember whether he'd left then. I cannot remember.
Q. He was deputy editor in July 2009.
A. Yes. Yes.
Q. And you told us that you read the Guardian article and it was of significance and interest to you that very morning, didn't you?
A. Yes, I did, yes.
Q. So there are two points here. The first point is that didn't any alarm bells ring at all about the appropriateness of you carrying out this establishment of the facts exercise given your relationship with Mr Wallis?
A. No. No, it didn't. There was the inference you're making is, you know, that there was the relationship was improper. It was not improper. You're talking to someone who's
Q. No, that's not the point, Mr Yates.
A. It's
Q. Just wait. What the Guardian was saying, rightly or wrongly, was, look, this has the appearance of being a conspiracy which goes to other journalists at the News of the World and possibly high up in the organisation. Fact number one. Fact number two, Mr Wallis is someone high up in the organisation of the News of the World. Fact number three, or point number three: why didn't it pass your mind that, at least putting it at its lowest, it was inappropriate for you to be carrying out this establishment of the fact exercise at all?
A. Well, you might as well ask that to the Commissioner as well and others who knew full well that I had a relationship with Neil Wallis, and, you know, I was looking at this dispassionately from the evidential perspective and I had people advising me on that, and we went through an exercise, and we got to the point we got to. To suggest that I would be influenced otherwise, which I think you're making, is wrong. You know, you're talking to a person, Mr Jay, who investigated serving government on which the Home Secretary has the final say on my career. I have a reputation and a track record of doing difficult things and doing them in a dispassionate and evidence-based way and that's exactly what I did in this case. LORD JUSTICE LEVESON It's not quite the point, Mr Yates. The issue is slightly different. As I said before, you were entitled to be friends with whomsoever you wish. There's nothing wrong with that, and nobody is suggesting that anything improper should be inferred from your friendship with the deputy editor of the News of the World. Mr Jay's point is rather different. It is not that you would in fact be influenced or affected; it is that here was the Metropolitan Police having to review an inquiry which it undertook in circumstances in which some pretty big players were expressing concern. You knew your friendship with Mr Wallis, therefore the perception might be that you would be affected. Not the reality, but the perception.
A. No, I take of course I take your point, but I think the benefit of hindsight once again comes into play because in July 2009 there was nothing to suggest that Wallis was involved in any way whatsoever, and what's happened in the last few year, and of course nothing has been proven yet, but in July 2009 there was just there was no indication at all, and I did this very dispassionately, and I take your point about the perception, but it didn't appear to me to be a problem then and it didn't appear to others to be a problem then. It is clearly a problem now. LORD JUSTICE LEVESON No, well, actually
A. And I accept that. LORD JUSTICE LEVESON The third paragraph of the Guardian article speaks about "senior executives responsible for reporters", and I would have thought somebody would say that the deputy editor was a senior executive responsible for reporters. It's a perception thing. I'm not saying it's any more than that.
A. I completely take that as a perception, but what this was on July 9, 2009, was a newspaper article. It didn't present evidence. Newspaper articles, as we all know, can have basis in facts and they can have lots of flour put around them to make them more interesting. I can only go on what the evidence was that day and that's where I got to. MR JAY Mr Yates, you're not evening beginning to answer Lord Justice Leveson's question, you're answering a different question. His question was: isn't there at least the appearance of a lack of disinterestedness by you because of your close friendship with Mr Wallis? Mr Wallis is within the ambit of those referred to by the Guardian in the third paragraph of their piece. You should have left this for another Assistant Commissioner to do. Do you accept that or not?
A. I think I've just accepted that with Lord Justice Leveson actually. I think I just said that, but anyway. It's we are where we are.
Q. The second issue is the one you were dealing with which I'm now going to ask you about, namely the issues raised by the Guardian article and your response to those issues. Do you accept that the issues raised by the article, whatever the evidence base for them, were wide-ranging, serious and important?
A. The interference with people's voicemail is serious. On a serious end this is what I'm thinking in July 2009 and not now. It would not be at the serious end at all. One looks at the invasion of privacy uncovered by Motorman and Glade and the sentences they got there, which was conditional discharges, so I would not put it at the serious end. What we know now puts it at the very serious end, but in July 2009 it was phone hacking. I was three months into a new job as head of anti-terrorism, we were dealing with the fall-out of a very difficult operation up in Manchester, which was still going, numerous other high-profile operations involving the security of the state. This did not present itself as a hugely serious thing in 2009.
Q. Was it for that reason, then, that if you go back to the summary of the meeting which took place on 9 July starting at 11 am
A. Yeah.
Q. that you made it clear at the very outset that you were going to establish the facts and you were going to put out a press statement for release later that very afternoon?
A. Yes, and the press statement could of course have said we're not going to do anything, which it did, or it could have said we're going to conduct a full investigation or it could have said we're going to conduct a full review. That's what the press statement meant.
Q. You weren't indicating at 11 o'clock, when you started on this exercise, you were going to get through this quickly and, come what may, you were going to publish your decision, as it were, having established the facts that very afternoon?
A. If you look at the list of people who were present at that meeting, all very senior, all very experienced. If there had been a scintilla of evidence that said we should be doing something differently, I can absolutely assure you they would have challenged me and I'd have challenged myself and we'd have done something different. The fact of the matter was, as I was briefed, there was nothing else in that article that led us to suggest that anything else needed to be done immediately regarding the investigation, or anything about the investigation.
Q. Can I just be clear what material you were provided with on that occasion? You were provided with briefing documents by DCS Clive Timmons, there referred to in about the fourth paragraph.
A. I can't actually recall the content of those documents. If it said there were briefings, then I would have seen them, yes.
Q. And then Mr Timmons gave a brief overview, and then there's a synopsis of what the investigation was?
A. Yes.
Q. It's all quite succinct, isn't it? We're skim reading it as we proceed.
A. But it covers the key issues around the you know, there was a lot of data, the evidence against it was limited, the phone companies have been tasked, the Prescott phone issue was covered.
Q. Yes, the Prescott phone issue was covered on the next page, 06541.
A. Yeah.
Q. "PW [of course is Phil Williams] confirmed he had no knowledge of John Prescott's phone being intercepted. If he had been subject to interception and evidence supported then he would have been informed." Of course you weren't aware of the evidence which related to his PA, were you?
A. Not I don't think so at that point. But I cannot tell you the amount of times I checked and sought further and better particulars about the possibility that Mr Prescott's phone had been interfered with. It would be literally scores over the following months, Mr Jay, there would be scores of times that, you know, because the level of concern I had about it is commensurate with the number of times I sought clarity about it, and every time, right up until I think the end of 2010 when there was a piece of paper that showed that he might have been involved or had some access to his sent messages, that was the first time. LORD JUSTICE LEVESON But were you not told about his PA?
A. I think she as I recall, that individual had been I was aware I can't remember what time I was aware, but I think she had finished working for him at that point, and I think the as I recall, any targeting of her was almost in her own right as an individual, having put herself in the public domain by selling her story, I think, to one of the newspapers. That's the best of my recollection. LORD JUSTICE LEVESON Well, Mr Yates, I'd like chapter and verse on that, because that's absolutely not the evidence I've heard, and it's not my understanding of the Mulcaire notebook.
A. Well I mean LORD JUSTICE LEVESON Don't get me wrong, in one sense this may not be your fault in the sense that you're relying on information you are provided with. I recognise that. Nobody is suggesting that you should then burn the midnight oil going through the Mulcaire documents yourself. That's not the job. You're relying on what you're told.
A. Yes. LORD JUSTICE LEVESON What may be relevant is the extent to which some of these issues were glossed over or taken seriously, and I say that because what you've just said has caused me real surprise. When you say that there were scores of times that you went back to check on Mr Prescott's position because he was writing to you, I have no doubt and you were still getting the same information, and we now know what the position is
A. Yes. LORD JUSTICE LEVESON I am disturbed that your persistent requests didn't reveal the answer. And that concerns me for reasons which I probably do not need to explain. MR GARNHAM Sir
A. I think what happened, and I say and I've absolutely stated this in my statement and accepted it, that there was an indexing issue around the name John Prescott being linked to his I think it was his adviser, whose name I would never have known or could never I don't think anyone could have made the link, to be honest. And I think what happened was sorry? LORD JUSTICE LEVESON I'm sorry, Mr Yates. You ought to know that the investigating detective who interviewed Glenn Mulcaire within a day or so of his arrest made the link and specifically asked Mr Mulcaire about that person. So this wasn't an unknown fact.
A. I saw that, and I was just as surprised as you seem to be surprised now. That was the first time I was aware of that. I have checked that with the Met lawyers and the individuals, as in Phil Williams. Was I ever made aware of that? No, I wasn't, because he wasn't aware of that either. I can't answer to that, I'm afraid. I was only as good as my briefing. LORD JUSTICE LEVESON I understand that point, but what concerns me, and after I've said this Mr Garnham wanted to say something so I'm going to let him say it, is that people were bleeding over these papers for Mr Prescott for some time, yet somehow this has all slipped through the cracks.
A. No, it's deeply regrettable and I can't account for it, I'm afraid. But the reassurance in terms of what I did was I asked him there'll be a Met lawyer sat in court who will be nodding now saying he asked scores of times around this. Because I was so concerned, the idea of misleading the Deputy Prime Minister is not something I'd relish and I was absolutely desperate to get to the bottom if there was something there. LORD JUSTICE LEVESON All right. Mr Garnham, you wanted to say something. MR GARNHAM Sir, only this, that it may be important to ensure that Mr Yates is clear as to whether he's talking about Mr Prescott's assistant or the person with whom it was said Mr Prescott was having a relationship, and the answer appears to have confused the two. MR SHERBORNE Sir, I was going to rise before Mr Garnham but he beat me to my feet. The fact is for the record, contrary to what Mr Yates says, Joan Hammell was working as the special adviser to Mr Prescott at the time, and she did not sell any story, nor did she put herself in the public domain. LORD JUSTICE LEVESON All right. MR GARNHAM That is right, but
A. I was LORD JUSTICE LEVESON All right, now we've unpicked it. The reference to that
A. I was desperate LORD JUSTICE LEVESON Sorry.
A. I was desperate not to mention any names, so I apologise for the confusion. It was clearly not her. LORD JUSTICE LEVESON You've got the point that bothers me and it bothers you too.
A. Yes, it does. MR JAY Can I ask you please to continue to look at the note of the meeting on 9 July.
A. Yes.
Q. Under the heading towards the top of the page: "Did we alert others? "Yes, as outlined above. No evidence to support wider phones had been intercepted." If you look a few lines above that: "Wider people were not informed as there was no evidence to suggest there was any criminal activity on their phones." So you were
A. Yeah, and I got it redacted thereafter, so whatever that is.
Q. Don't worry about that bit, because we don't know what's behind the redaction, but you were therefore being told that only those in respect of whom there was evidence of criminal activity on their phones were being informed as victims; is that right?
A. Yes, that was certainly the case, yes.
Q. And then a little bit further down: "Why was there not a more wide-ranging investigation? "There was no evidence to expand the investigation wider, which, if it had done, then this would have been an ineffective use of police resources. "What other journalists were involved? "There was no evidence at that time to implicate involvement in any other journalists." These are the
A. Yes.
Q. only references in the note to any consideration being given to the main sting of the Guardian article, which was that there were other journalists involved, or at least there might be. Do you accept that?
A. Yes, I do, but it's clear from this that we went through an exercise to try and establish the facts, and this was the summary note of the briefing that I received that day, which led me to the conclusion that I did.
Q. To what extent did you test the proposition "there was no evidence at that time to implicate involvement in any other journalists" because there's no written record here of you testing that proposition and answers being given to you pursuant to any such probing. Would you accept that?
A. I can assure you I can't recall the exact questions I would have asked, but I would have been I would have said, "Did counsel see it? Did the CPS see it?" All the sort of levels of assurance that from sort of independent people, those are the type of areas that I would have gone into, and said, for example, was all the unused material reviewed properly? And accepting the point I know you make that it was only reviewed on a sort of CPI basis but it still gives you a sense that all this would have been gone through and from what I was told on that day, that was the position. LORD JUSTICE LEVESON But do you think it's really fair to rely on that for this reason: the article you've made the point was the Guardian that morning. The investigation had been conducted just short of three years beforehand and, save for the prosecution of two persons, had been brought to an end in September 2006. Now, it's true you had Detective Chief Superintendent Williams, as he then was, with you, who had been
A. Yes. LORD JUSTICE LEVESON the SIO, but he must have done many things in two and a half years. Let me just take one other fact from the meeting to ask you about. It says this at the top of the third page, 6542: "There was no evidence to prove criminally any other person's phone had been intercepted. There was strong evidence that they had intercepted three Royal Family aides' phones and a further five other high profile people all of which were the subject of charges and proceedings in court." Now, you will have heard yesterday, if you have seen Mr Williams' evidence, that actually they looked at a number of people to make complaints, but they didn't want to get involved. And the choice of
A. I think the LORD JUSTICE LEVESON the other charges wasn't because there wasn't a basis to proceed; it was because these were the people who were prepared to say something, and leading counsel had said five or six was enough.
A. Yes, and I was aware of that. I hesitate to say this, but this is not a sort of forensic note of everything that took place that day, because it's the minutes of the Gold Group, probably completed by my superintendent, I think, and capturing what, you know, he will consider to be the summary points. As a sort of full forensic note and a full legal advice file, no, it's not, and I was certainly aware that at least three other people had been approached, all quite high profile people had been approached around potentially giving evidence and their phones had been hacked. LORD JUSTICE LEVESON We can't do more than read what you wrote at the time, Mr Yates.
A. No, no, Mr Leveson, I absolutely I accept that, but this was July 2009, and would we have thought there would be the scrutiny that there is now in 2012? No, we wouldn't. It was a sort of summary note of the Gold Group, it was the best we'd got. LORD JUSTICE LEVESON I agree. I'm going to stop in a moment, but if I look at your meeting of the Gold Group the following day, on Friday 10th at midday, the second line says: "Previous minutes agreed." In other words, it's agreed that that's a reflection of the previous day's meeting.
A. Yes. LORD JUSTICE LEVESON Which it's obviously not.
A. Yes, it's a fair point. LORD JUSTICE LEVESON All right. MR JAY Did you ask for a succinct summary, at least, of what the evidence was in relation to any other journalists?
A. What I asked Phil to do, I think it was that weekend, was to produce me a full note once they had access to more material actually to refresh their memories around it. Because I readily understood that this would be a matter of interest to both the Commissioner, the police authority and probably the Home Office as well, and that was absolutely right. So there was a fuller note completed by Phil Williams and Keith Surtees, I think, that over that weekend, which I think is in the bundle somewhere.
Q. That's right, Mr Yates, but you were giving your press statement out that very afternoon without waiting for the fruits of any later briefing notes from Mr Williams, weren't you?
A. Yes, because we in the vernacular, we'd established the facts and the facts were, then, that that Guardian article had some new information for the general public, but it wasn't new to the investigators or to the police, and there was nothing there was no new evidence presented by that article to warrant reopening the investigation at that stage. So I came out and said it. I could have waited a week, two weeks, and choreographed it and spun it, but I didn't. I said it as it was.
Q. It's not a question of choreographing and spinning it. Why not wait until your Detective Chief Superintendent, as I think he then had become, had spent the weekend and started to prepare you a briefing note before precipitantly giving a press statement? Why not do that?
A. Because the briefing note was the flesh on the bones, as it were. I mean, whatever you say about what I did that day and whether it was precipitous or not, the fact of the matter was only a week later the DPP came out and agreed with exactly what I'd done, so precipitous or not, it was
Q. Well, you're now beginning to argue a case. The question was: why didn't you wait? And we've heard your answer. The press statement is at tab 16, or it might be in your bundle at tab 11. LORD JUSTICE LEVESON It is. MR JAY It is. Page 06555. You come to a clear conclusion here, don't you, on the two main points: "No additional evidence has come to light since this case has concluded and I therefore consider that no further investigation is required." You're really closing the door to any further establishing the fact exercise, aren't you?
A. Well, not entirely, because I say later on that if further evidence comes to light, of course we'll consider it. So it is simply the exercise is: is there anything new in the Guardian? It is not a review, it's establishing the facts. Answer: no, there wasn't. I think even on the cold light of day today, there wasn't at that time. And I opened the door to, one, review the victim strategy, and secondly, that if further evidence came to light, we would consider reopening it. We've been consistent or I've been consistent on that point throughout.
Q. Where do you say that in this press statement, "If further evidence comes to light, we'll consider it"?
A. It wasn't in this press statement. It had been in every other public comment I've made. I thought it was in this statement.
Q. It's pretty clear, isn't it, Mr Yates, that you came to a rapid conclusion that there was nothing in this and in less time than the eight hours which has been suggested elsewhere you took, possibly a maximum of six hours, you had all this done and dusted, including the drafting of this press statement, which must have taken a bit of time, and that was the end of it. Isn't that the position?
A. It was a fairly straightforward again, you talk with what's happened since, with sort of the taint of what's happened since, and I completely accept that. But in July 2009, that's what I was asked to do. If I'd seen anything to suggest that I needed to do more, of course I'd have done I'd have gone beyond establishing the facts, because for the level of seniority I was, of course that is part of my discretion. I spoke with the key people who had run the operation, who had dealt with all the liaison with the CPS. That's what I was briefed and that's the conclusion I came to.
Q. Mm. It's true there's a difference of emphasis, really, or it may be a bit deeper than that, between the evidence of Mr Williams and Mr Surtees we heard yesterday, but if we take into account Mr Surtees' evidence, it amounted to this, that he had very considerable suspicions if not accepted the proposition that there was circumstantial inferential evidence in relation to other journalists, but it was really the overwhelming impact of resource considerations which closed down this investigation in September 2006 rather than any perception that there was no evidence against other journalists. You followed yesterday's evidence and understand that?
A. As best I could, as best I could, and I absolutely, you know, accept the resource constraints then, but that's not part of my business at that point. The irony of this, I suppose, is something that on one hand we are asked as senior police officers to make difficult decisions. If you look at something like the HMIC report into the Damian Green affair, we are absolutely directed by the chief HMI, but you have to make difficult decisions, I have the paper here, based on proportionality, seriousness, public interest and costs. Such cases always involve making difficult choices and sometimes the decision is not to investigate. That's the advice and guidance we were given in September 2009 by Her Majesty's Chief Inspector of Constabulary. We are paid to make difficult decisions. There are constant resource constraints and constant resource challenges.
Q. Mr Clarke explained all that to us this morning. You may not have heard his evidence. But it may have been more accurate on 9 July 2009 to have said: there may well have been evidence which implicated others, but the decision was taken in September 2006 to close down this investigation for resource reasons alone. But that's not what you said, was it?
A. I don't accept that's the case, either. There may Keith Surtees may have had suspicions and those suspicions are clearly well-founded now, but they weren't there was no evidence then. If there had been any evidence for us to pursue you've got to let me finish this point because this is really important. You're judging me on 2012 by what was taking place in July 2009, and we are paid, I am paid or was paid to make those difficult resourcing decisions about competing priorities. Two people had gone to prison. The mobile phone networks, as far as I was aware, were aware of the problems, they'd put the security parameters around it, and it was time to move on to other things, as it were. But this was a simple exercise. It looks extremely challenging now, two and a half years later, with all that we know, but then at this time it was a straightforward exercise, it's something I probably did every couple of months and assistant commissioners would do every couple of weeks for the Commissioner based on these sort of premises.
Q. What was your reaction, then, Mr Yates, to the evidence you heard yesterday before this Inquiry, which was to the effect and I summarise it that there was circumstantial and indeed other evidence which implicated other journalists before the investigation was shut down in September 2006?
A. Well, I'm surprised it was phrased that way because it's never been phrased that way to me. There was the "for Neville" email, which has been well ventilated in a number of areas. That is all I knew that was additional.
Q. That wasn't the question. I'm just asking you as formerly an extremely
A. I'm very surprised, very surprised.
Q. You were surprised?
A. Yes.
Q. Would you characterise what you heard from Mr Williams, Mr Surtees and Mr Maberly, would you characterise the evidence which existed at all material times, but in particular August/September 2006, as amounting to good circumstantial inferential evidence involving or implicating a number of other journalists?
A. I don't think I was ever given that inference at all. There was certainly a desire to go to the phone hubs and all that. The evidential challenges were paramount, and as far as I was aware from them were completely that they could not be overcome.
Q. I think your position, Mr Yates, is then you were surprised by hearing that evidence because that wasn't
A. I didn't
Q. Is this right, because that wasn't the picture you were being given on 9 July 2009? Is that right?
A. I haven't seen all their evidence from yesterday, so I can't make that judgment, it would be unfair. I have seen snippets but not all of it, so I can't make that judgment without seeing it at all. LORD JUSTICE LEVESON Have you had a chance I don't suppose you have of yourself seeing some of the entries in the Mulcaire notebook with the phone numbers, the PIN numbers, the details, the addresses, the links, the paper material that was available as a result of the search? You may never have seen it. I don't know.
A. No, I I've seen I've certainly seen samples because I wanted to see you know, I was always being told "scraps of paper and hieroglyphics all over it", so I've seen samples, but have I gone through any of that in a formulaic way? No I haven't. LORD JUSTICE LEVESON No, I wasn't suggesting you'd go through it formally. I've already said I wasn't expecting you to reinvestigate this yourself. My point was rather different. Had you seen a name and addresses with links to other people with phone numbers and PIN numbers and this sort of documentary material, once you got a PIN number, somebody's worked quite hard to get hold of that.
A. Yes. LORD JUSTICE LEVESON Would you not agree that that provides an evidential basis
A. Yes. LORD JUSTICE LEVESON for investigation? It may be you're absolutely right: for good resource reasons, it can't be done.
A. Yes. LORD JUSTICE LEVESON And I recognised, if you didn't hear it, to Mr Clarke earlier today that I well understand on resource grounds in the light of what was happening in 2006 why the investment of resource into this operation could not be justified. I quite get that.
A. Yes. LORD JUSTICE LEVESON But my point is different, and it's therefore not looking at what we know now because of Weeting; it's looking at actually what the piece of papers then said.
A. Yes. LORD JUSTICE LEVESON How much work it involved I recognise.
A. Yes, and I think the point I would have been aware of but I can't absolutely recall when was yes, Mulcaire must have targeted many people and I knew he was a private detective. Whether there were PIN numbers involved or whatever. But I took the view, rightly or wrongly, that more evidence against Mulcaire would actually take us nowhere at all. He was never going to stand trial again for phone hacking. He had been dealt with, sentenced and that process had been complete. LORD JUSTICE LEVESON But did you know about the corner names of other journalists with mobile phone numbers of journalists?
A. No, I was aware of the "for Neville" bit. MR JAY Of course the briefing note from Mr Williams, which he prepared on Sunday, 12 July, three days after your press statement, does make reference in paragraph 14 to the corner names. I don't think you have that
A. And the only well, if you could confirm if his Lordship would just help me with the tab.
Q. I don't think it's in that bundle. Oh, it is.
A. The only one I can LORD JUSTICE LEVESON It may be behind MR JAY Tab 14, thank you. Yes, it is.
A. The one that stands out is awareness and a clear recollection is the "for Neville" bit, because that's the bit which has caused concern. It may well be in this briefing document about others, but it didn't hit home in that way.
Q. Maybe the reason why it didn't hit home is that you'd already made your decision, as it were, three days before, and that when you got to read this briefing note it was of little interest to you because the facts had been established. Is that fair?
A. No, I don't think it is fair. I maintained a very close and continuing close oversight and almost constant review, if you want to use that word, of how this was developing over many months and if not well over a year, until it was handed over, so I don't think that's fair at all.
Q. So reading paragraphs 14 and 15 of this briefing note of 12 July carefully, did you adhere to the view that there was no evidence that other journalists were involved?
A. The point at 15 is the point I highlighted, and it was the evidence, the evidential threshold. That was exactly the same evidential threshold that was the problem with the "for Neville" stuff in terms of the knowledge of how they would have known how the information was obtained. MR JAY There's a difference LORD JUSTICE LEVESON It's a rather interesting issue, that, isn't it? A journalist gets hold of a private detective and wants some information, then gets that information back quite quickly in a specific form, which he could then use. It's rather unlikely that the journalist would have personal links with the celebrity or person about whom information is being given. The inferences aren't bad, are they?
A. Sorry? Can you LORD JUSTICE LEVESON The inference that this is likely to have come from some sort of interception are not bad. I'm not saying they're solid, but they're not bad.
A. Oh, not bad, sorry, I get who knows what techniques, lawful or unlawful, private detectives use and how they get the information, you know, I can't be the judge. What we were worried about was is there any evidence around this, and the view I was given was: no, there wasn't. MR JAY Just
A. Even the "for Neville" email, which was closely analysed by the DPP and counsel, came to the same view on that.
Q. Just the formulation "no evidence", there are certainly different levels of evidence or its absence. At the very bottom, of course, there is literally no evidence.
A. Yes.
Q. Higher up the food chain there is some evidence. Then there's some evidence plus circumstantial, inferential evidence, which may or may not be sufficient to raise a prima facie case in a criminal court, and then there's evidence which my satisfy a jury. But to say there is "no evidence", which is a term you consistently used before Select Committees, is putting it far too baldly, isn't it, Mr Yates?
A. I suspect you may, on what has happened since, I think you're right, Mr Jay.
Q. But on what was available, information available to you on 12 July 2009, that was putting it too broadly, wasn't it?
A. I think you described the word "evidence" in a very legalistic way, as you would do. There is a different syntax if I can finish. There's a different syntax put on it in police work, and that's where the difference is.
Q. I understand. So you're telling us that in police circles, "no evidence" is really another way of saying "insufficient evidence to bring before a criminal court"?
A. Insufficient evidence to take forward, yes, to develop. LORD JUSTICE LEVESON We have to be a bit careful about that, because the one thing Deputy Assistant Commissioner Akers has done is take forward what was there in quite a far way.
A. Yes, I completely accept that and that's entirely proper. MR JAY It might have been safer to say, Mr Yates, back in July 2009, really the same thing that we heard from Mr Clarke, namely the resources which it would require to bring this to a successful conclusion would be immense. That would be unjustified in the public interest, given competing priorities on the police. Rather than saying there's simply no evidence. Because there's a big difference between those two propositions, isn't there?
A. I accept your point, but from what I was told, what I was briefed, on a matter that had gone some four years out of date or had happened four years ago, that's what I was briefed, so that's again, that's what I said. MR JAY Well, that's, I think, as far as that can In relation to the victims, which was a matter you left open in a limited way at the end of your press release, were further victims notified?
A. We went through a fairly torturous exercise, actually, which was not satisfactory on a number of levels, over many months. And with the very best intentions that the appropriate people should be notified. It was not a successful exercise and I accept the responsibility for that. It's a matter of great regret that didn't take place as it should have done.
Q. Of course you did revisit the issue at least consequentially on Monday, 13 July, which is tab 16, the minutes of the Gold Group meeting on 13 July. It's our tab 21.
A. My 16, is it?
Q. It's your 16.
A. 13 July, yes. I didn't just revisit it then. I revisited it on numerous occasions over the following months and went through a series of, as I say, torturous exercises to try and get this right. Regrettably, that failed, but it wasn't just 9 July and doing what I did. It was a continuing exercise and attention to this matter for about 18 months to try and get it right.
Q. But on this occasion you weren't carrying out any further establishment of the fact exercise, were you?
A. No, this was to do with all about the victims, actually, all about the victims.
Q. It was all about consequential matters including sending letters to the Guardian, and indeed we note at the bottom of this page, it's page 06581: "DCS Williams' update from informing Andy Coulson and others from 10 July onwards. PW informed Coulson and no issues. He took it well." I say nothing about that.
A. No, in terms of he was one of the individuals that was contacted and we tried to contact several others with limited success.
Q. He was being contacted in his capacity as communications director at Number 10, wasn't he? No, he wasn't at that point, sorry. He was advising the Conservative party. He wasn't being contacted in his capacity he'd left the News of the World, hadn't he?
A. Clearly the focus was on him, and him not to be aware that he was a victim himself would have been intolerable, really.
Q. Oh, so he was being contacted only in his capacity as victim, not in any other capacity?
A. Yes. Clearly he would have been making the focus of the article was very much inferenced around him, so as he was a victim and we knew he was a victim then, then it was clearly appropriate that he should be made aware.
Q. Sorry, the article was suggesting that he might be one of the conspirators, not that he was a victim.
A. The article yes, the article
Q. Isn't that a better way of putting it?
A. Well, maybe, yes.
Q. I'd better move on from that point. Further material came to you, including the note from Mr Perry, and we've looked at that and other matters. You've summarised the Gold Group meetings at paragraph 120 of your statement. But it's fair to say though Mr Yates that at no stage did you carry out any further analysis of the evidence, did you?
A. No.
Q. Because the die had been cast with or by what you'd said in your press statement on 9 July 2009, hadn't it?
A. In some sense yes, but the reason why I say I thought it was in the statement that if any further evidence came to light we would consider it is because I have said that in on the six or seven Select Committee appearances I did, I think I must have said that on every occasion, so that's why it was on in my mind. I said it. So the die hadn't been cast in that sense because we are always alive to the possibility that new evidence would come to light, be it in the New York Times or be it through our efforts or be it through of course News International eventually co-operating and producing some material which was relevant.
Q. You see, what happened in relation to the New York Times this is paragraphs 115 and 116 of your statement was that they wrote a lengthy and detailed piece in I think it was September 2010.
A. Yes.
Q. You, as a result of that, caused letters to be written to 19 current and former reporters and desk staff of the News of the World. You say in paragraph 16: "As I recall, many of these letters were ignored and no relevant replies were received." So another
A. You've missed a significant chunk of work in between that. So the article comes out and raises a number of issues. We then set up a small team to scope and review that with the CPS. A number of people were interviewed, some under caution, some not. A full scope took place. It went to the Crown Prosecution Service and they considered it with their independent hat on and came to the view that none of this constituted new evidence. Part of that exercise was to write to those people.
Q. You tell us in paragraph 130 that you believe that you yourself were a victim of phone hacking?
A. Yes, and I've explained that, I think, in a Select Committee.
Q. What evidence do you have for that, Mr Yates?
A. The modus operandi of the effect on your own phones. I was abroad, a particularly difficult weekend for the Met, where I was doing a lot of to-ing and fro-ing with both Dick Fedorcio and the Commissioner's office and every time a voicemail was left on my phone, I couldn't access it, I had to reset my password, probably the PIN number. So knowing that the MO was in use, I surmised, 99 per cent certain, that my phone was being hacked. LORD JUSTICE LEVESON Yes. MR JAY The irony of this I don't think has been lost on many in this room. You're applying a different evidential standard to yourself than you applied to victims who were not yourself. Isn't that right, Mr Yates?
A. Well that certainly (inaudible).
Q. Well, you are, aren't you, because according to the standards you were rigorously applying earlier on, this is no evidence.
A. I hadn't listened to the voicemail messages, Mr Jay. LORD JUSTICE LEVESON That may not matter, but that's another point. All right. MR JAY Media coverage of you, paragraph 130 and following, 6509.
A. Sorry, those numbers don't mean anything to me.
Q. No, paragraph 130, on the internal numbering it's page 40.
A. Yes, I have it.
Q. You feel, to use the term victim again, that you're a victim of unfair or were a victim of unfair press coverage and media intrusion; is that right?
A. To some extent. I mean victim in that sense is a bit too strong a word, actually, on reflection. Some of it's the rough and tumble of senior life, but certainly there was some intrusion and certainly there was some inaccurate reporting around me.
Q. I've been asked to put to you certain points which bear on paragraph 132 and then 135 and 136 of your statement. I'll do so, if I may. You refer to two members of the MPA Professional Standards Committee, who you say clearly decided you were guilty of misconduct, called for your resignation publicly on several occasions, not only
A. Yes.
Q. before the committee met to discuss the case, but also and even worse during the meeting itself. You've seen the minutes of the meeting, haven't you, which indicated that they left the meeting before your case was considered; is that right?
A. Absolutely right, yes, yes, but they're members of the committee, and they recused themselves and then decided to go out both before the meeting met and knowing the meeting was in progress and called for me to resign.
Q. So the reference to during the meeting itself isn't intended to be a reference to anything which happened at the meeting but it was contemporaneously
A. No, no, no.
Q. Just wait, Mr Yates contemporaneously with the meeting but outside it. Is that what you're intending to convey?
A. Yes.
Q. I understand.
A. Yes.
Q. You say: "This added to the media frenzy, placed additional pressure on those left on the committee." Of course, those left on the committee wouldn't know what was happening outside, would they?
A. I strongly suspect they did.
Q. What basis have you for saying that the remaining members of this committee were biased against you apart from pure speculation?
A. I mean in terms of well, one only has to look at the evidence they considered and the way they considered it to know that they cannot possibly have reached the conclusions they did without that bias being there.
Q. All right. You infer bias from the decisions they made rather than from any anterior facts, but it's true, isn't it, that in relation to what they were doing, they weren't making a decision on the merits, they were merely determining whether there should be an investigation by the IPCC; is that right?
A. Yes, and I let me be clear. I have absolutely no issue with that. What I have the issue with is the fact they didn't consider salient facts which they had before them, and they took a decision to suspend on the basis of not a lot, and, you know, both those matters they referred to or they referred to the IPCC, on neither matter was I on neither matter was I even interviewed, as a witness or anything, so
Q. But to be fair to the MPA, the Amy Wallis matter, which was one of the matters which were before them and which was referred to the IPCC, was a misconduct referral to the MPA by the Deputy Commissioner on behalf of the Commissioner of the Metropolitan Police Service, wasn't it?
A. Yes. And they had a range of facts which they could have considered which would have fully explained the position, and which they declined to do so. That is the bit I took issue with.
Q. But the Commissioner clearly thought that there was something which needed to go to the MPA, at least for a preliminary ruling. You have to accept that, haven't you?
A. No, no, no, I completely accept that and that is absolute due process, but it was the process they followed thereafter and the matters they could have considered, which they didn't, which they had before them, that's the bit I have an issue with.
Q. And the Shami Media issue was again a misconduct referral by the Deputy Commissioner and the
A. Not for me.
Q. And the MPA on 18 July didn't refer it to the IPCC but said it needed to be investigated further, didn't they?
A. With no but my name was not that doesn't involve me at all.
Q. What happened was that you resigned before you were suspended, weren't you?
A. Say again, sorry?
Q. You resigned before any decision was made to suspend you?
A. Yes. My sort of resignation statement makes that clear.
Q. Do you think, looking back on this, Mr Yates, that at the very least there is a perception of improper inference on your judgment by your contacts with News International?
A. No, I don't accept that.
Q. Not even a perception?
A. The perception I can't fault perception, because that's such a broad phrase, but I absolutely know and I guarantee that none of that played any part in my decision making. That's my conscience is completely clear on that.
Q. Mr Fedorcio has put a statement to the Inquiry. In paragraph 84 of that statement, he says this: "I was aware that John Yates and Neil Wallis knew one another through work, but did not understand them to have any significant contact outside of work." Was that awareness in Mr Fedorcio based on anything that you told him?
A. I wouldn't have seen to discuss it with Dick. Why would I? Dick certainly knew that I knew Neil Wallis and that he was a friend. Whether he knew that we went to the football together on the odd occasion we did, I don't see the relevance of it.
Q. Well, it goes to the Shami Media issue, and possibly other issues. Just the basis of Mr Fedorcio's knowledge of course we're going to be in a position to ask him soon, Mr Yates, but one possible source of his knowledge was what you told him. Do you follow me?
A. Yes, and I I would have thought he did know, to be honest, but I can't if he says he doesn't know, he doesn't know, but in terms of the Shami Media contract, that was let a million miles away from me, and I made that absolutely clear.
Q. When you said you would have thought that he would know, you're basing that on presumably your personal knowledge, and you may be suggesting that you told Mr Fedorcio of your contact with Mr Wallis outside work, and it was because you told him that you would have thought that he would know. Is that what you're telling us?
A. You have to rephrase that in a slightly less wordy way, Mr Jay. Sorry.
Q. Too many words?
A. It's three hours into this and that's defeated me, sorry.
Q. The basis of his, Mr Fedorcio's knowledge might have been what you told him, in other words he knew
A. Yes, I would absolutely know that Dick would know that Neil and I would be fighting about football and that would be absolutely in his knowledge, I would have thought.
Q. And all these dinners? Do you think he knew about that, from what you told him?
A. I'd imagine so, yes.
Q. You imagine so?
A. There's nothing I'm trying to hide around it. It's in my diary, even a private appointment. MR JAY Yes. Well, thank you very much, Mr Yates. LORD JUSTICE LEVESON Mr Yates, I understand why challenges to your decision-making may be seen by you also as challenges to your integrity, and I understand
A. Yes. LORD JUSTICE LEVESON why you feel that. But I would like your observations on how one deals with what may be legitimate perception. So we now know and we knew at the time News International are raided by the police, the Mulcaire notebook has emerged, with lots and lots of names, lots and lots of details. A decision has to be taken in 2006, which is entirely understandable, given what is happening in the country at the time.
A. Yes. LORD JUSTICE LEVESON Then there is clearly a return to it, there is a big civil case. There is a very substantial payment made. There are documents that reveal other material. Then the Guardian article, Sir Paul Stephenson is up in some other meeting. You view it and there is the suggestion of senior executives. You take the view that your knowledge of Mr Wallis is well-known that nobody could impugn you. But then when one is reviewing the matter on 13 July, at your Gold meeting, I think this is you have two meetings on 13 July. This is the one at 4.30, which is your divider 16.
A. Yes. LORD JUSTICE LEVESON And it's reported there's been some press coverage, and you've heard there are two newspapers have spoken about backhanders and that this was the reason why the investigation was not being reopened, and that's because Rebekah Wade had apparently said to a Select Committee that she paid the police. Did it occur to you then, in the light of all this, that the reputational risk to the Metropolitan Police was not such that you really did have to go back to be seen to be absolutely 120 per cent clear that there was nothing in the original investigation?
A. Sir, I absolutely take your point, my Lord. It's just that at that point in time forget what's happened since LORD JUSTICE LEVESON Well, I agree, I agree with that, I agree.
A. At that point in time, it was just there was nothing there that would say would I put 40 detectives, because that's what it would have taken, for several months if not years, to do that exercise, when there was no evidence to support that as a resource decision? We you know, the public sector cuts were kicking in, your Honour, the challenges around what you devote your resources to were immense. To say I'm going to do that on something where two people had gone to prison, all those things had happened, it just wouldn't have occurred to me and I deeply regret it now. In terms of what's happened LORD JUSTICE LEVESON I understand that you say in the scale of serious behaviour, this doesn't rank anywhere near all of the other
A. No. LORD JUSTICE LEVESON work that you were engaged with, but this isn't just about criminality.
A. I know. LORD JUSTICE LEVESON This is about reputational risk to the Metropolitan Police, and I wasn't suggesting that you put 40 police officers on for a year. I'm just wondering whether it didn't require somebody to go back to the original detective sergeants and the detective inspectors who really were at the root of all this and say what would a scope look like and what do you think with your feet very firmly on the ground, rather than me from my Olympian height and I'm not suggesting that's a word you would use, but you understand the point I'm making
A. Yes. LORD JUSTICE LEVESON what would it look like?
A. I mean, in fairness in fairness to me LORD JUSTICE LEVESON Well, I want you to do that.
A. on 23 July or whatever it was, I asked all this thing I was so concerned about our inability to analyse the material in any shape or form that I asked for it to be put on the HOLMES system. You have that email in your pack, where I've said as a matter of priority I took people off counter terrorism operations to put all the material on the HOLMES system. Now, if during that exercise run by detectives who, you know, would have a detective outlook, I would have expected, if concerns began to be raised about what's actually in that material, stuff that's come out, that I would have been told, but that didn't happen. So I was sufficiently exercised, as a critical incident in the Met parlance, to put the stuff on a computer, to invest I think it was ten detectives for three or four months working long days to put all this material on a system so I could search it, so I could actually with confidence say when people wrote in, I could say you're either on the system or not on the system. Now unfortunately that exercise wasn't done as thoroughly as it should have been. LORD JUSTICE LEVESON But that was to do with victims. That wasn't to do with
A. Yes but LORD JUSTICE LEVESON I take your point.
A. Okay. LORD JUSTICE LEVESON I'm just concerned that the very, very best person to have answered quite quickly what looking further would cost, what it would involve
A. Yes. LORD JUSTICE LEVESON what it would lead to might have been the DSs and I'm talking about sergeants here, who were actually doing the job.
A. But LORD JUSTICE LEVESON I'm not suggesting you should have asked them, I'm not suggesting there weren't chief inspectors and superintendents who could have all allowed it to flow down the chain of command, but
A. But that's what happened, by the way. The person that was in charge of putting it all on the system was the DS that was in charge of the original inquiry, so that absolutely was what happened. LORD JUSTICE LEVESON Okay. We're talking about Mr Maberly?
A. Yes. And others. I mean, others who had been involved in the operation, I think. I can't say that for certain. LORD JUSTICE LEVESON All right. Mr Yates, thank you very much indeed. Thank you.
A. My Lord, thank you. LORD JUSTICE LEVESON Right. I think we need another half an hour, then we have had our lunch hour. (2.51 pm)


Gave a statement at the hearing on 01 March 2012 (AM) ; and submitted 4 pieces of evidence
Gave a statement at the hearing on 01 March 2012 (AM) ; and submitted 80 pieces of evidence


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