Morning Hearing on 09 May 2012

DCI Brendan Gilmour and ACC Russell Middleton gave statements at this hearing

Hearing Transcript

(10.00 am) Statement by LORD JUSTICE LEVESON LORD JUSTICE LEVESON Full Fact, English PEN, the Media Standards Trust and Index on Censorship, none of whom are core participants in this Inquiry, although unsuccessful applications were made by English PEN and Index on Censorship at its commencement, have made a written application for directions regarding the ruling that I made on Friday last week concerning an application by the government for core participant status. Before giving me the opportunity of dealing with it, the application has been placed in the public domain. In the circumstances, although I believe the answer to be clear, and I have not found it necessary to seek the assistance of any core participant, I shall deal with it in public. Let me start by saying something of the way in which the Inquiry has dealt with requests addressed to it. On a very frequent basis, applications or requests of one sort or another are received at the Inquiry, both by post and email. In most cases, they can be dealt with administratively, either by a lawyer working as a solicitor to the Inquiry or by another member of the team. When it is necessary, requests are referred to me and my decision is then passed back to the solicitor for onward transmission. None of this is or need be in public. Very occasionally I have felt it necessary to say something more formally, in which event I have usually done so at the beginning of a hearing prior to the evidence being called. Examples of my taking this course will be obvious to anyone watching the proceedings or considering the transcript. I do not intend to alter that approach, and, before considering this request, wish to underline that the mere fact that it has been published has not caused me to do so. I am not prepared to allow the Inquiry to be diverted from the business of the day simply by the fact of publication of a request. I respond to Full Fact and others first because of the respect which I attach to their organisations and secondly because they raise issues that are potentially significant, not least because the implications of the consequences of my ruling have been misunderstood and so misrepresented in certain reports. In a ruling on Friday, 4 May, I refused to allow the government to have core participant status but I did grant such status to certain named ministers, who I determined should collectively be known as government core participants. Although not then stated in the ruling, I also decided under rule 7 of the Inquiry Rules 2006 that collectively they should be represented by the Treasury Solicitor. Three questions have been raised. These concern the position of special advisers within the confidentiality circle, the anonymity of ministerial staff within the confidentiality circle (which issues are both related to the purpose of the included group) and the question of redaction. The confidentiality circle. The first point to make is that core participant status and membership of the confidentiality circle is conferred for the purpose of assisting the Inquiry while at the same time ensuring fair treatment for those likely to be affected. What is important is the fact that everyone who is within the confidentiality circle understands the obligation to preserve the confidence of the information being shared, and not to reveal that information until it has been published on the Inquiry website. The terms of the undertaking and the order under Section 19 of the Inquiries Act 2005 (the Act) make that absolutely clear. I expect each core participant, including government core participants, to restrict the confidentiality circle to the minimum number necessary to participate fairly and effectively in the Inquiry. This group will usually involve legal advisers and those persons whose assistance is essential to ensure that the core participant can produce accurate and properly researched material for the Inquiry. For a newspaper core participant it might involve the editor and one or more reporter ready to undertake any necessary research. Government ministers will no doubt need further assistance, if only from those able to marshall the documents and to consider whether there is any point that should be advanced through counsel to the Inquiry. In addition, it was also a core part of the reasoning in my ruling last Friday that government ministers ought not to have to deal with demands for information about evidence emerging from the Inquiry without any prior notice about that evidence. In that regard I also implicitly recognised that there could be a number of persons who would need to be brought into the confidentiality circle for just this purpose. Indeed, for whatever purpose, given that ministers have been asked questions both as holders of public office, in which capacity they can be assisted by civil servants, including government lawyers, and as senior party leaders, in which capacity civil servants cannot be involved, it should not be surprising if requests for membership of the confidentiality circle are made for both civil servants and special advisers. In any event, whether such persons are civil servants, subject to an obligation to act with political neutrality, or special advisers not so restricted does not matter. I repeat that what is critical is that everyone who signs the confidentiality undertaking is absolutely bound by it. Neither is compliance merely a matter for exhortation. Breach of a notice under Section 19 of the Act can be certified to the High Court and the subject of such order by way of enforcement or otherwise as could be made if the matter had arisen in proceedings before the court, see section 36 of the Act. It has not been the practice of the Inquiry to publish the names of those who have signed the confidentiality undertaking. In some cases, it involves a large number. In others, few are involved. It is an administrative matter, albeit an important one, which has been addressed by the solicitor to the Inquiry and her team. The fact of the undertakings has been made public, but to go further and publish the names is, in my view, unnecessary. It would divert resource to do so and would identify all those who are privy to sensitive information. This may not itself be desirable because to do so might expose them to pressure to reveal confidential information. It is important to appreciate that all who have become core participants have already submitted signed statements. What matters is that whoever has access to statements before the witnesses give evidence keeps what they read confidential prior to the Inquiry making it public after the witness has given evidence. It must be understood that within days of statements being made available to core participants, the statement is in fact adduced in evidence and then published on the Inquiry website. Redaction. The concern expressed in relation to redaction is that in addition to the privilege of seeing evidence in advance, government core participants have the ability to suggest redactions before that material is placed into the public domain, with the result that where there is discretion to hide things from the public, there will be "worries about abuse among the public". It is submitted that the twin track procedure for redaction should be modified to require the publication of schedules in the public domain seeking to justify redaction, whether or not the proposed redactions are agreed. It is said that this would create an incentive for the government core participants to adopt a measured approach to its requests. No such concern has been expressed in relation to other core participants. This submission fundamentally misunderstands Section 19 of the 2005 Act. This provision describes the circumstances in which material may be restricted or redacted in these terms: "(1) Restrictions may, in accordance with this section, be imposed on "(a) attendance at an inquiry, or at any particular part of an inquiry; "(b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry. "(2) Restrictions may be imposed in either or both the following ways "(a) by being specified in a notice (a 'restriction notice') given by the Minister to the chairman at any time before the end of the inquiry; "(b) by being specified in an order (a 'restriction order') made by the chairman during the course of the inquiry. "(3) A restriction notice or restriction order must specify only such restrictions "(a) as are required by any statutory provision, enforceable Community obligation or rule of law, or "(b) as the Minister or chairman considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (4). "(4) Those matters are "(a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern; "(b) any risk of harm or damage that could be avoided or reduced by any such restriction; "(c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry; "(d) the extent to which not imposing any particular restriction would be likely "(i) to cause delay or impair the efficiency or effectiveness of the inquiry, or. "(ii) otherwise to result in additional cost (whether to public funds or to witnesses or others). " (5) In subsection (4)(b) 'harm or damage' includes in particular "(a) death or injury; "(b) damage to national security or international relations; "(c) damage to the economic interests of the United Kingdom or any part of the United Kingdom; "(d) damage caused by disclosure of commercially sensitive information." End of the citation of the statute. The only grounds for redaction are those set out in Section 19 of the Act or irrelevance. Although Section 19(4) is not determinative, but only exemplifies the potential grounds, for the purposes of this Inquiry the term "harm or damage" has only narrow ramifications. Where there are redactions, they are generally visible on the page for all to see, or alternatively it is apparent where they have been made. The situations so far experienced revolve around personal details such as signatures, private addresses and information such as telephone numbers, the identity, where it is material, of those who are under investigation by the police or who come within the umbrella which I've referred to as the self-denying ordinance, details which can properly be described as commercially confidential and, on occasion, material that is truly irrelevant to the Inquiry. Nobody has sought to challenge decisions made by the team as to redaction, and although I would be entirely prepared to do so, I do not believe that I have had formally to rule on any dispute. On occasion, redactions have preceded disclosure to core participants where the position is obvious and clear. In any event, I have no doubt that core participants such as the Guardian as well as other press interests, who will see unredacted or partially redacted material, will be particularly sensitive in relation to attempts to redact which stray outside the limits of what has been done to date or cause any concern. To follow the quotation from Baroness Onora O'Neill, other core participants will actively inquire and will not blindly accept. If the minister himself seeks to provide a restriction notice, that will itself be the subject of discussion within the Inquiry. Quite apart from the submissions that might be made by other core participants, there is the principled and strictly impartial approach for the redaction of documents submitted to the Inquiry, which is in place in relation to evidence submitted by government core participants, as it has been in relation to others. That procedure is wholly controlled by the Inquiry and taken very seriously. A protocol for the process was published by the Inquiry at the outset. I repeat that redactions of any sort by the government will be approached in the same way as redactions sought by other core participants. The practices adopted by the Inquiry have worked well with other core participants thus far and I see no reason to take a different approach in relation to government core participants. Furthermore, it would be unreasonably burdensome on this fast-moving Inquiry to make public, as we progress, workings of the redaction exercise conducted by the Inquiry itself. It would more importantly give rise to a heightened risk of material which rightly deserved redaction being inadvertently disclosed into the public domain. I am, however, happy to add that if I became concerned that any core participant was trying to abuse the process to hide matters that were merely embarrassing rather than properly deserving redaction, I would consider making public information about that particular attempt. I do not anticipate that such circumstances will arise, and continue to expect all core participants to seek redactions only where they are justified in accordance with the tests set out in the legislation and which I have sought to explain. I do not doubt the good faith of those who have raised these issues, although in the light of the way that I have tried to conduct this Inquiry throughout, I am somewhat concerned that it is thought that I might be party to reducing its transparency. Suffice to say I will not, and I would be surprised if I were asked to be. Thank you. MR BARR Sir, good morning. LORD JUSTICE LEVESON Yes, Mr Barr. MR BARR We start with two pieces of evidence which revisit an issue which the Inquiry first considered in December of last year. That is to say, the interception of Milly Dowler's voicemails. The first piece of evidence is going to be a statement updating us about the Metropolitan Police's investigation, produced by DCI John MacDonald. I understand that he has had the benefit of assistance from both Surrey Police and the mobile phone company Everything Everywhere in preparing that statement, and might I ask my learned friend Mr Garnham to read DCI MacDonald's statement? LORD JUSTICE LEVESON Yes. It ought to be clear that the circumstances surrounding the entire experience with the voicemail of Milly Dowler, whether by listening to it or doing anything else, have been the subject of evidence, and were obviously an important part in the background to the Inquiry. Therefore, it's right that this evidence should be given, but I think it is also right to make it clear that the precise detail of the extent to which there was such interference is probably not going to inform my overall view as to the culture, practices and ethics of the press. I am not merely content, but happy that this evidence be read, because it's part of the overall picture, but I would not want its significance in the context of the Inquiry rather than the overall pattern of evidence to be misunderstood. Yes, Mr Garnham? Reading of evidence of DCI JOHN MACDONALD MR GARNHAM Sir, thank you. This is a statement of Detective Chief Inspector John MacDonald of the Metropolitan Police. Sir, I will read it in its entirety. "Introduction. "Operation Weeting has been asked by the Leveson Inquiry for an update as to the current state of the investigation into the hacking of Milly Dowler's voicemail. "This is a complex enquiry, which is taking some considerable time to complete. To hope to reach a position of clarity, the MPS have had to carry out an hour by hour inquiry into the events of 24 March 2002, when Mrs Dowler was able to leave a message on Milly's answerphone, and into the events surrounding a saved message left on 26 March 2002. "I have summarised these inquiries below. "The original request from the Inquiry. "In her statement to the Leveson Inquiry, Mrs Dowler describes a 'false hope moment', when she heard Milly's voicemail message and believed that that meant that Milly was alive. She dated this to April or May 2002. "The MPS were asked by the Inquiry to carry out further inquiries with a view to explaining how the family had been able to leave a message and how the deletion of previous messages might have allowed this to happen. "The MPS commenced an investigation into how a message had been able to be left, whether space had been freed up due to deletion of previous messages and why the automated voicemail greeting that was played when her mailbox became full might have reverted back to Milly's personal voice message. "This report into the findings of the MPS investigation does not go into detail about Milly's phone being hacked. It is public knowledge that this is the case and I can confirm that there is evidence to support the fact that it happened. I would not wish to go into further detail because this is an ongoing investigation which could be undermined by the release of additional information. "The evidence. "The Dowlers' account. "Mr and Mrs Dowler's first account is set out in their Inquiry statement. As noted above, they dated the 'false hope moment' to April or May 2002. "The MPS's investigations caused them to doubt whether that date, or the interpretation of events provided by the Guardian newspaper, could be accurate. They sought to meet the Dowlers to discuss their concerns. At the time, Mrs Dowler was unwell and was not able to meet the police. "MPS counsel [namely I] made a statement on the subject to the Inquiry, and it is understood that this caused Mr and Mrs Dowler considerable distress. Accordingly, the MPS arranged to speak to the Dowlers at their solicitor's office. During the course of that conversation Mr Dowler queried the date of the visit to the Birdseye Building and the MPS undertook to check the available material to seek clarity on that point. "The family liaison officer's logs. "The MPS reviewed the Surrey Police FLO's daily log. The log dated 24 March 2002 has the following entries: "After 18.00 hours on 24 March 2002 Mr and Mrs Dowler attended the Birdseye Building to view CCTV recorded at 16.21 hours on 21 March 2002. "At 18.55 hours, Mr and Mrs Dowler confirmed that the girl seen on the 21 March 2002 CCTV footage was not Milly. "At 19.10 hours Mr and Mrs Dowler were taken home by the FLO. Whilst at home, Mrs Dowler rang Milly's mobile. The log records that Mrs Dowler 'became distressed as Milly's voicemail was now on the recorded message whereas previously there was a recorded voicemail message (automated)'. This call was from Mrs Dowler's mobile number. (These timings are from Surrey's FLO log.) It is not known what time the FLO notes were made and the timing in those notes does contradict the call data which indicates that the call Mrs Dowler made was at 18.32 hours. It is believed more likely that the call data is accurate and the notes were possibly completed retrospectively. The call data shows that there was an additional call from Mrs Dowler to Milly's phone at 20.32 hours, however the FLO had left the family home by that stage. "There is no other documentation in the possession of Surrey Police that would suggest that Mr and Mrs Dowler visited the Birdseye Building on any other occasion. "News International. "There is no evidence at present to support a suggestion that any journalist attempted to hack into Milly's phone prior to 26 March 2002. "Mercury one2one (now T-Mobile). "On 26 March 2002 there was a voicemail platform migration by Mercury one2one. That migration included Milly Dowler's voicemail box. It would have had the effect of resetting Milly's personal voicemail greeting to an automated generic voicemail message. That automated message would have remained until changed by the owner of the phone. It should be noted, however, that this voicemail migration occurred after 24 March (when Mrs Dowler called Milly's phone and was able to leave a message) and therefore had no impact on the 'false hope moment'. "Call data. "There is complete call data covering a period up to 23.59 hours on 24 March 2002. We say this because the call data appears extensive and likely to reflect the amount of calls made when Milly went missing. Thereafter the call data is far less in volume, and does not reflect calls that are known to have actually been made. For instance, a message left on Milly's phone at 14.10 hours on the 26th is not shown on the call data and neither is the call made by Surrey Police on that date to facilitate a recording of Milly's voicemail. Of the voicemail messages recorded by Surrey Police on 17 April, a number of the corresponding calls are not shown in the call data. "The following two points should be noted about the call data: "First, it would appear that the call duration would have to be over 16 seconds in length in order to be able to get past the greeting and to leave a message. Therefore any call duration greater than this has been researched. "Second, the phone provider states that there was a purge point at an unknown time during each day when groups of messages over 72 hours old were deleted. However phone analysts from Operation Weeting believe that the data appears to indicate that there was in fact an automatic deletion of individual voicemails once 72 hours had been reached. If the latter explanation is correct this would support the explanation as to why Mrs Dowler got access to Milly's personal message. There needs to be an awareness that this interpretation about the automatic 72-hour deletion of voicemail is by officers from Operation Weeting. The phone provider's explanation is different and does not appear to fit smoothly with the call data. "Bearing that in mind, the call at that time shows the following: "The last time Milly called her voicemail is shown at 17.07 hours on 20 March. An assessment of the call data indicates that at that time there was only one call in the recent history that could have resulted in a voicemail being left and this call was at 16.40 hours on the 20th. "At 19.46 hours on 21 March 2002 there is a call into Milly's voicemail from a friend's phone that lasts 24 seconds. That suggests a voicemail message was left. The phone provider has confirmed that the voicemail system allows a maximum of 10 messages to be left, before reaching capacity. Once 10 messages are left, the mailbox becomes full and a generic message would be played to the caller advising that no new messages can be left (rather than a personal greeting). Operation Weeting have reviewed Milly's call data for the days leading up to that time. It would appear that this call is the 10th voicemail message left over the period 16.40 hours 20 March to 19.46 hours 21 March, therefore her voicemail would be full at that stage and an automated message would be activated. "At 18.32 hours on 24 March 2002 there is a call from Mrs Dowler's mobile number that lasts for 28 seconds which suggests a voicemail message has been left again. "These events support the suggestion that the voicemail box was full with the 10 messages that could be left, and that on 24 March, some 72 hours after Milly's last sighting, messages could be left again. Mrs Dowler's call is likely to have been made when one of the previous messages from 21 March had been automatically deleted. "The phone provider has also confirmed that when the voicemail box was full the automated message would be heard, and once messages had started to drop off, the personal voicemail greeting that Mrs Dowler heard would again have come into effect. "The saved message of 26 March. "It was noted that there was one saved message present on Milly's voicemail on 26 March 2002 when Surrey Police, under the production order, first accessed Milly's voicemail and recorded any content. "A voicemail message is marked as being 'saved' even if it has only been listened to and not manually saved. It is important to note that a message must be played in its entirety in order to be marked as saved. Terminating a call mid-way through retrieving a message will still show the message as being 'new' as opposed to 'saved'. Any messages which have not been listened to would be marked as being 'new'. "The fact that this message was marked as saved could mean that someone had listened to Milly's voicemail after her disappearance and prior to police obtaining access to her voicemail facility later on 26 March 2002. "The following chronology has been evidenced: "25 March 2002. "At 16.02 hours on 25 March a notice of production order was served on Mercury one2one. "Voicemails would have been preserved at this point and the number of messages able to be left would have increased from 10 to 50. It is noted however that the records available up until 17 April indicate that at no stage were this amount of messages ever stored. "26 March 2002. "On 26 March Mercury one2one were in the process of changing the voicemail platforms used to store messages. Platform 19 (Milly's platform) was being shut down, and platform 51 was to be her new one. As part of the voicemail platform migration, any existing messages on the voicemail account could not be moved to the new platform. These messages were not deleted. They were still available to be listened to on the old platform by exercising an option to 'listen to your old messages' when accessing the mailbox. This connected the customer back to the old voicemail platform. It would also change the voicemail greeting to factory automated settings (rather than Milly's personal voicemail greeting). "At about 9.45 hours on 26 March a special procedure production order was applied for by DC John. "DC John says he liaised with DC Bonilla about downloading of voicemails. "10.47 hours the production order was faxed to Mercury one2one. "10.57 hours the voicemail pin reset by Mercury one2one. "14.10 hours a voicemail message left on Milly's mobile telephone. "15.19 hours voicemail pin reset by Mercury one2one. "15.25 hours voicemail download conducted by DC Bonilla. "Surrey Police records indicate that at some point on 26 March an independent company specialising in forensic analysis of phone data was commissioned to download Milly's messages. Their attempt to do so is documented as being unsuccessful. The MPS have made contact with the head of a private telecommunications company who recollects being called by Surrey Police and asked whether they would record some voicemails. He cannot remember whether this was in relation to the Milly Dowler case or the year it occurred, however he recollects it occurred late one evening. He states that no follow-up call was made in any event, and so no action taken. "DC Bonilla downloaded one saved voicemail message and exhibited the download. The phone provider has suggested that had DC Bonilla listened to the complete options he could have downloaded messages on the old platform (if they existed) using option 8 ('listen to your old messages') when accessing the mailbox. This was not done; however it is believed that Surrey Police were not aware of the voicemail platform migration or the fact that any messages left up to that point in time were still available to be listened to on the old platform using option 8. Further to this, the Surrey Police verbatim transcript of their voicemail download does not record that option being available (and neither does their later download on 17 April). It should be noted that the recording on 26 March is terminated before all the options are relayed to the caller. "The phone provider has confirmed that the reason for the option to listen to old messages not being available when Surrey Police conducted their download on 17 April is that this option was automatically removed 21 days after mailboxes were migrated to the new platforms. This applied to all customer mailboxes as part of the migration. Milly's mailbox was migrated on 26 March, so the option to listen to old messages (i.e. on the old platform) would have been removed on 16 April. "In line with one2one's own procedures they would have expected to have conducted the download themselves, as they do for all law enforcement agencies, and then provide the recordings to Surrey Police. Had they done this, they say they are likely to have been able to recover any messages that existed. Surrey Police's position is that technical support unit specialist officers did perform mobile phone voicemail downloads in-house pursuant to production orders in 2002 and that to this day Surrey Police continue to do so with respect to voicemail accounts of customers of two other major mobile phone network providers who do not download voicemail messages themselves for law enforcement agencies. "MPS analysis in respect of the saved call. "We have considered why, when Surrey downloaded Milly's phone at 15.25 hours on 26 March 2002, the voicemail message left at 14.10 hours was found as a saved message. It appears to indicate that in the 1 hour 15 minutes between those two events, someone has accessed Milly's voicemail and listened to it. The MPS cannot rule out that someone has illegally accessed Milly's voicemail on 26 March 2002. However the call data for 26 March is incomplete and we are therefore unable conclusively to establish the accuracy of this theory. "The information we now have about the activities carried out on 26 March 2002 do not help to give a clear picture of what has happened that day in relation to Milly's phone. "There were a number of technical matters being carried out on that day. The voicemail platform migration was under way, but T-Mobile has confirmed that this migration would have had no impact on why the message was marked as 'saved' or on the 'false hope moment'. There were two pin resets to Milly's phone; it is believed this was in order to ensure the police could get access to the voicemails, although it is not clear why the second one was required. There was the independent phone company commissioned by Surrey Police who the police say made an attempt to download, whereas the company says they took no action (therefore retain no records). "There are some further enquiries being undertaken in order to try and seek as full an explanation as possible as to what else occurred on that day that could have affected the data on Milly's phone, specifically the 'saved message' issue. However, it should be made clear that it is currently the assessment of the Inquiry team that no further clarity is likely to be provided, and that primarily because of the lack of a full set of call data and the fact that ten years have elapsed since that time, we will not be able to obtain a definitive explanation as to why the message at 14.10 hours was shown as saved. "Manual voicemail deletions. "The whole issue of whether any voicemails were manually deleted (rather than being deleted automatically) has been considered. In summary we cannot conclusively say whether any voicemails were or were not manually deleted, however there do appear to have been two messages missing that should have been present when Surrey Police carried out their second recorded download on 17 April. It is not known why that happened and it will not now be possible to provide an explanation. "It must be remembered that Milly's voicemail was placed into a preserved state on 25 March, thus preventing any automatic deletion of messages. It was still in that preserved state when Surrey Police accessed Milly's voicemail for the second time under a production order on 17 April. "The saved message of 26 March, left at 14.10 hours, was no longer present when Surrey Police performed its second download on 17 April. Neither was a message that the investigation team believe was left on 1 April at 14.16 hours. "There are limitations in interpreting the data, as previously set out in this report, ie the call data appears to be incomplete. It is not anticipated that any further clarity will be obtained on this issue. "It should be noted that the Guardian newspaper's 16 July 2011 story and the Dowlers' witness evidence to the Leveson Inquiry were not the only occasions during which the issue of manual voicemail deletions was raised. A note of 23 April 2002 of DC John Lyndon (during the original investigation into Milly's disappearance) records his suspicion as follows: '''As per previous report, the reason why there was no voicemail present is unknown. I have liaised with [redacted name] at Mercury Police Liaison and they are unable to explain why this is the case. In light of the News of the World's revelation that they or a third party has accessed the voicemail it is possible that the messages had previously been listened to by unknown persons and deleted.' "This note was disclosed by Surrey Police to the MPS in 2011 when Operation Weeting asked Surrey Police for the original Operation Ruby documents and (in redacted form, and on a confidential basis) on 8 December 2011 to the parties in the Mobile Phone Voicemail Interception Litigation pursuant to the order of Mr Justice Vos dated 18 November 2011. "Furthermore the possibility of manual deletion being the cause of the 'false hope moment' was speculated upon during meetings between the Dowlers and the police in 2011. On 1 April 2011, following an explanation of the hacking of Milly's phone by MPS, Mr and Mrs Dowler described Mrs Dowler's 'false hope moment' and wondered whether this could have been attributed to a manual deletion. The MPS also explained to the Dowlers how a victim of voicemail hacking may learn of the fact that they had been hacked by messages being moved from 'new' to 'saved' or by way of deletion. However, there was nothing in the possession of the MPS which suggested any deletions had taken place in respect of Milly's phone. Mr and Mrs Dowler's concerns were discussed further. Because the MPS did not know precisely what had happened to Milly's phone, they did not attempt to proffer alternative views or seek to dissuade Mr and Mrs Dowler from their belief that Milly's voicemail messages could have been deleted. At no time during this meeting did MPS police officers tell Mr and Mrs Dowler that messages had been deleted from Milly's phone. This was not something of which the MPS police officers were aware (either from their own investigations or from the information provided by Surrey Police). "On 21 July 2011 in a meeting between Surrey Police and the Dowlers there was also a discussion about whether voicemails were deleted. Surrey Police did not (and was not even in a position to) confirm whether Milly's voicemails have been deleted or not. However, it was noted that Mrs Dowler was: "'reassured that her thoughts that messages were being deleted were completely reasonable and absolutely possible given that she was able to leave messages one day but not the previous day. [The MPS senior investigating officer] had told them that it was a technique used by News of the World to delete messages they had listened to so that the owner of the phone did not know that they had been listened to. So again, she was justified in her view that they could have done this, but they did not delete the recruitment agency message or we have no evidence that supports that they did or did not delete messages from Milly's voicemail.' "Conclusions. "The MPS are now able to say with some confidence that Mrs Dowler's 'false hope moment' occurred on 24 March 2002. "The primary basis for this conclusion is that the FLO logs show the meeting at the Birdseye Building, as mentioned in Mrs Dowler's statement, occurred on 24 March 2002. It is logged there that Mrs Dowler had got through to her daughter's voicemail and heard her voice. "Furthermore, call data shows that at 18.32 hours on 24 March 2002 Mrs Dowler's mobile phone made a call lasting 28 seconds. This call is of a duration that supports the assertion that Mrs Dowler had got through to the voicemail of Milly. She made a further call to Milly's phone at 20.32 hours and that call lasted 27 seconds. It would appear that the reason she was able to do this is because voicemails previously left, that had hitherto filled up Milly's message storage facility, had started to drop off after 72 hours. "It is not possible to state why the message left at 14.10 hours on 26 March was shown as a saved message when Surrey Police listened to it at 15.25 hours. One possibility is that it was subject to an illegal intercept in that 75-minute period. However we should also consider the lack of a complete set of call data for that time when trying to interpret what happened. "Taking all the relevant information into account it is not possible to state with any certainty whether Milly's voicemails were or were not deleted. When Surrey Police conducted a download of her messages on 17 April there are believed to have been two messages that were missing. As previously stated, when trying to interpret the evidence and establish what did or didn't occur, it is necessary to consider the lack of a complete set of call data. Given this situation, whilst a reasonable understanding of the issues and events has been developed as a result of the MPS investigation, reaching a definitive conclusion is not, and may never be possible." And DCI MacDonald signs that statement indicating he believes the facts stated in his witness statement are true. LORD JUSTICE LEVESON Thank you very much, Mr Garnham. Yes, Mr Barr? MR BARR Sir, I should make clear the status of that evidence. It has been seen by but is not agreed by other core participants other than as between the police core participants themselves. The Guardian has helpfully produced a timeline setting out its understanding of the material events, and that timeline is going to be posted onto the Inquiry's website together with MacDonald's witness statement. It is perhaps obvious, but I should make clear for the avoidance of doubt that neither of the police core participants agrees the Guardian's timeline. Finally on this issue, I've been notified by my learned friends Mr White, Mr Sherborne and Ms Phillips that each would like to say a few words briefly about this issue. LORD JUSTICE LEVESON Right. Let's do it in this order. Ms Phillips, this has obviously been an issue that has materially impacted on the Guardian story and therefore if you want to say something at this stage, you may do so. You don't wish to read the timeline which I've had the chance of seeing? MS PHILLIPS No, sir, we don't. LORD JUSTICE LEVESON Well, as long as it's available for all who wish to see it, that's fine. MS PHILLIPS My understanding is it will go up on the Inquiry website at the same time. LORD JUSTICE LEVESON Thank you very much. Yes? Statement by MS PHILLIPS MS PHILLIPS Thank you. The Guardian welcomes the fact that the Metropolitan Police has modified its statement from last December. The Guardian has, as we've heard, prepared its own timeline for the Inquiry which reflects its understanding of the relevant events, which it believes to be accurate. The Guardian has no wish to cause any distress to the Dowler familiar. We also recognise the continuing need for care in reporting this matter, given the ongoing criminal investigation. What DCI MacDonald's statement makes clear is that the following facts are not now in dispute: Paragraph 7: the News of the World hacked into the voice messages of Milly Dowler after she disappeared in March 2002. Paragraph 27: the police have found evidence to suggest that somebody may have manually deleted two of Milly's messages, but they have been unable to identify the person responsible. They have also found evidence which suggests automatic deletion. Paragraph 31: in April 2002, Surrey Police made a connection between the apparent deletion of Milly's messages and the News of the World. Paragraph 32 and paragraph 33 and 34: the manual deletion of the messages was discussed by Sally and Bob Dowler and the police during meetings in 2011. The Dowlers speculated to the police that their 'false hope moment' was due to such manual deletion. Surrey Police continued to regard this link as "completely reasonable and absolutely possible", and the Metropolitan Police did not seek to dissuade Mr and Mrs Dowler from this belief. The Guardian story of 4 July 2011 was based on multiple sources and their state of knowledge at the time. Our error, as we acknowledged and corrected last December, was to have written about the cause of the deletions as a fact rather than as the belief of several people involved in the case. We regret that. After five more months of intensive inquiry, the police have found that the passage of time and the loss of evidence means that "reaching a definitive conclusion is not and may never be possible". Thank you. LORD JUSTICE LEVESON Thank you very much. Right, well, I think next Mr White. Statement by MR WHITE MR WHITE Thank you. News International would like to take the opportunity to repeat its apology to the Dowler family for the fact that Milly Dowler's voicemail messages were accessed by the News of the World. News International notes from paragraphs 13, 35 and 37 of DCI MacDonald's witness statement that the view of the Metropolitan Police Service is that there is no evidence that any journalist attempted to access Milly Dowler's voicemail messages prior to the awful moment of false hope described by Mr and Mrs Dowler in their evidence to this Inquiry, and that this moment of false hope resulted from the voicemail messages dropping off the voicemail message storage facility after 72 hours. LORD JUSTICE LEVESON Thank you very much. Mr Sherborne? Statement by MR SHERBORNE MR SHERBORNE Sir, as Mr Barr says, I'd like to make a short statement, and especially in view of the way this matter was reported back in December of last year when the Metropolitan Police first mentioned that they were looking into how Sally Dowler had managed to get through to her daughter's voicemail, as we heard so vividly in evidence, and what may be said in the press now. As part of what I'm going to say this morning, there is a brief statement, sir, as you're aware, which the Dowler family has asked me to read out on their behalf. As you can imagine, they are anxious to reach closure on this issue for obvious reasons, but at the same time they accept that there are some things to which we still don't know and will never know the answer. Whilst Detective Chief Inspector MacDonald's statement concludes that the 'false hope moment' was likely to have been caused by an automatic deletion of messages 72 hours after they were recorded, there are a number of equally important questions here which remain unanswered. In particular, despite the fact that other subsequent messages were deleted, and it appears that they may not have been the result of any automatic deletion process but rather at some later stage and by some human intervention, there is no clear answer as to who was responsible. There are, I would suggest, only a very limited number of potential suspects, but there is still no answer. The reason why there is no answer is a lethal cocktail of three potential ingredients. The first is the Surrey Police's utter failure in 2002 to investigate what they discovered about the News of the World's activities at the time in hacking into Milly's phone. On that subject, whilst we are currently in the dark as to the reasons why Surrey Police failed to hold News of the World or their journalists to account, much of what we've heard in Module 2 concerning the dysfunctional relationship between the police and the media may help inform our understanding. It is fair to say, perhaps, as I understand it, that the Surrey Police are still investigating this failure some ten years after the event. The second ingredient is the decision by the Metropolitan Police in 2006, despite having stumbled upon an Aladdin's cave of material indicating wholesale unlawful activity in relation to hundreds of victims, instead to close up the entrance and to tell no one about what they'd seen, and certainly not the victims, and instead to charge a single journalist and a private detective with only a handful of counts. And finally, the last but by no means least noxious of these ingredients was the deliberate concealment by the News of the World's senior staff of the scale of this illegal practice, concealment achieved by the deletion of documents and the peddling of that now infamous lie: that this was just the work of one rogue reporter, a lie which was not, as we've heard, even challenged by the Metropolitan Police at the time, even though they must have known, to quote the words of Colin Myler, the editor of the News of the World at the time, that there were "bombs under the newsroom floorboards" in this, the best-selling newspaper in the country. It is worth adding that if only Mr Murdoch senior had done what he sat over there last week and said he wished he'd done from the start, ignoring the lawyers, and had ripped the place apart, then maybe things would have been very different, but he didn't, and here we are several years later, despite the police's best of intentions, unable through the passing of time and the loss of vital call data to uncover the precise extent of what dark deeds were done. While some questions stay and may always remain unanswered, there are some to which we do very clearly know the answer, and I mention three very briefly in this context. First and perhaps most importantly, the News of the World did hack into Milly Dowler's phone, searching for a scoop, and at a time when, as we know, she had already been murdered. That fact alone is horrifying enough. But secondly, as the Surrey Police's report has plainly documented, we also know that the newspaper interfered seriously with the police investigation at the time, trying to use the information they had illegally obtained to get an exclusive on Milly's movements. And thirdly, and so there is no confusion about this, this Inquiry, investigating as it has done the practice, culture and ethics of the press as a whole, would have happened regardless of the suggestion which arose at the start of the evidence that Sally Dowler's 'false hope moment' may have been the activity of someone at or working for the newspaper. As students of what was said at the time will know, and those who study transcripts of the Inquiry's proceedings can also confirm, the 'false hope moment' and the News of the World's potential responsibility for this was not part of the decision to set up this Inquiry in the first place. Whether News of the World were responsible for later deletions or not, it was the work of an investigative journalist prepared to get to the truth and the public outcry at what this ugly truth looked like which generated this Inquiry, and particularly the fact that a certain newspaper thought it right, without any compunction, to access the messages of a missing teenager, which showed the depths to which certain sections of the press were prepared to go. No one who sat through Module 1, and particularly the first few weeks of evidence given by my clients, could possibly argue that this Inquiry was not entirely justified. Finally, before we hear again the wild suggestions that because the newspaper was not responsible for the 'false hope moment' means that it should never have been shut down, one should remember the industrial scale upon which it has been revealed that such hacking took place and how it pervaded like a cancer through the newsroom and other floors of the News of the World as a demonstration of the sad but inevitable truth, namely that this newspaper was rotten to its core. That is why Mr Murdoch cut it out and you heard him last week say that he wished he had done so sooner. And now, sir, on behalf of the Dowler family, I'd like to read a very short statement, if I may. The family would like to thank Detective Chief Inspector John MacDonald and his team for their efforts to get to the bottom of this issue, even if there remain a number of unanswered questions. If Surrey Police had prosecuted this activity in 2002 then the position would have been very different and perhaps countless others might also have avoided having their private messages hacked into by the News of the World. Police neglect and deference meant that it took the relentless efforts of one journalist to uncover what the police knew had gone on, and whilst we would never have wished to have been thrust into the middle of this extraordinary scandal on top of what we have already had to deal with as a family, we continue to have faith that his efforts and the efforts of the Inquiry and Operation Weeting will have a lasting positive impact. Thank you. That's all I wish to say, sir. LORD JUSTICE LEVESON Thank you very much. Well, that deals, I hope, in as much detail as we can possibly seek to request, with that aspect of the history, so we'll now go on. MR BARR Sir, my learned friend Mr Jay is going to take the next witness. LORD JUSTICE LEVESON Thank you very much. MR JAY Sir, we need a couple of minutes to sort out one or two technical arrangements. LORD JUSTICE LEVESON Right, we'll do that. We'll give the shorthand writer a break from what has been solid speaking. Thank you. (11.02 am) (A short break) (11.15 am) LORD JUSTICE LEVESON The next witness? MR EADIE Mr Brendan Gilmour, please. LORD JUSTICE LEVESON And he is to be the subject of a restriction? MR EADIE Indeed. LORD JUSTICE LEVESON For reasons which have been fully explained and in respect of which I am entirely satisfied, this witness will not be visually available, either within the annex or online. His evidence will, however, be carried live and be available orally. Thank you. MR EADIE Thank you. MR BRENDAN GILMOUR (sworn) Questions by MR JAY MR JAY Your full name, please, Mr Gilmour?
A. Brendan Gilmour.
Q. I would ask you, please, to turn up your witness statement which you made on 23 March of this year. It has five exhibits, a standard statement of truth, and it's signed and dated by you. Is this your formal evidence to this Inquiry?
A. Yes, it is, sir.
Q. Mr Gilmour, you are currently a Detective Chief Inspector. You've been in the Metropolitan Police Service now for nearly 21 years. The time which we're looking at, that's between 2002 and 2005, you were serving on the DPS, which is, of course, the Directorate of Professional Standards, and your rank, I believe, was Detective Inspector; is that right?
A. That's correct, sir.
Q. And the reason why we're asking you to give evidence today is to enlighten us in relation to Operation Glade, which I'm going to ask you about in a moment, which started in 2003, but in order to understand some background, I've been asked to put to you this general question: had you experience of dealing with the press in relation to operations before Operation Glade?
A. Not in the context of the press potentially being suspects, only in the normal context of using the media for information appeals.
Q. Of course, the standard work which you were undertaking between 2002 and 2005 was in relation to police corruption; is that right?
A. Yes, it was, sir, that's correct.
Q. So in that context were you previously aware of a practice of disclosing information gained from the Police National Computer or the CRO to private investigators?
A. I was generally aware of possibly one other investigation that had been going on or maybe was going on at the time that involved private investigators acting or using police staff to gain information, but not specifically from the PNC, and I'm not sure of the specifics of the information that they were actually requiring, but it's not an investigation I personally was involved in, it's just one that I was generally aware of.
Q. Can I ask you generally about the Police National Computer? Was it seen by you to be a general problem, namely a source of corruption, or was it something more isolated and sporadic?
A. Personally, I think it was more isolated and sporadic.
Q. Okay. So we understand the Police National Computer and how it works, it contains Criminal Record Office information; is that right? And it also contains material such as registered keeper details of privately owned vehicles?
A. Yes, it does, that's correct.
Q. And presumably a range of other sensitive information, some of which you wouldn't wish to discuss today.
A. That's correct, sir, yes.
Q. Can I ask you, please, about the background to Operation Glade and its commencement? This is paragraph 7 of your statement and following. You tell us it started in August 2003. In your own words, please, how did it originate?
A. From memory, and from the documents that I've seen, sir, it the investigation emanated from an inquiry that Devon and Cornwall Police had conducted, which I think was code named Operation Reproof, and at some point Devon and Cornwall linked in with the Information Commissioners who ran an operation called Operation Motorman, I believe, looking at the activities of private investigators potentially using police employees or accessing the information on the PNC, which was in turn then passed out to various journalists. During the course of Reproof and Motorman, or Motorman, investigators established that a Metropolitan Police employee, a civilian employee, called Paul Marshall, was conducting checks on the PNC and the information from those checks was subsequently ending up in various newspaper articles. So we have the wider Operation Motorman investigation going on, and from that Paul Marshall was identified, a Metropolitan Police employee, and because of that the Information Commissioners came to the Metropolitan Police with that information and then it was briefed into the Directorate of Professional Standards, the command that I was attached to, initially into the Intelligence Development Group, and one of their roles was to scope any information coming in to see if it required an operational response, for instance an investigation to be conducted on that information.
Q. Thank you. In terms of the chain of dissemination of information, Mr Marshall was the starting point working in south London, I understand?
A. Yes, in Tooting police station.
Q. In Tooting. Did he provide information to Mr King, who was an ex-police officer, and then Mr King in turn furnished the information on to private detectives, Messrs Whittamore and Boyall?
A. That's correct.
Q. The company you refer to, Data Research Ltd based in Surrey, was that connected with Whittamore and Boyall?
A. I can't remember which one of those persons it was connected with, but yes it was. I believe there were two companies, JJ Services, which I think may have been Mr Whittamore's company.
Q. I think you're right, and Mr Boyall therefore would be
A. Mr Boyall's was Data Research.
Q. Thank you. You explain in paragraph 13 that the inquiry was then scoped, as you explain, and we have the evidence of that. I don't think it's necessary to look at it in any particular detail. I've been asked to put to you a couple of points arising. We know Mr Marshall, who was the civilian communications officer at Tooting, remained in post. Do you know why that was so, given that there was an obvious risk of future disclosures by him?
A. Yes. That was a decision that I took. It's not unusual in these circumstances, depending on the level of risk that the employee poses, to leave them in post to allow the investigating team to covertly do what they need to do, so to evaluate, assess any information that we're already in possession of or to retrieve any information that we need to. It frequently can prevent the disposal of evidence by remaining covert in our investigation. I recall reviewing Marshall's position and the risk that he represented, and given the nature of what he was doing, it was a relatively low risk. We would always consider risk to life and various other factors, but predominantly risk to life, and clearly there wasn't a risk to life here and there was more benefit in leaving him where he was in order for us to obtain the information.
Q. The other general question is: you mentioned a few moments ago that the information that was provided to the private detectives eventually found its way into newspapers, so it was plain that the ultimate consumer or customer was a journalist. When you were scoping this exercise, was the sensitivity of investigating journalists discussed?
A. I can't recall specifically. I would imagine it was. We were certainly alive to the sensitivities of investigating journalists and the significance of that. But I can't recall specific discussions.
Q. Did that for you create any particular fears or trap falls or was it something that you would simply take in your stride, in the context of the work you were doing?
A. Well, considering the work that we were doing, investigating corrupt police employees, police officers and members of the civilian staff, investigating journalists didn't present any fear. There wasn't any fear involved at all. But we did recognise the significance of what we were doing and the attention that that would attract and that would obviously shape how we approached that, but it certainly wouldn't have stopped us doing it and there was no trepidation around it.
Q. Can I put it in a slightly different way, that there would be resource implications in taking on journalists and powerful newspapers, some might say. They would have access to sophisticated legal advice. Would those matters be a factor in your decision-making?
A. In terms of operational activity and our response? No. That wouldn't stop us doing what we needed to do. You can imagine that some the investigations that we were conducting at the time were relatively high profile and, no, that wouldn't have stopped us doing what we were doing.
Q. Thank you. I'm going to take as read quite a lot of the early part of your statement. We're going to note at paragraph 16 what the terms of reference of the inquiry, which was then I think code-named Operation Glade by that point, were: "To investigate (covertly) at this time the allegations against Marshall in order to prove or disprove his involvement in the offences alleged. The parameter of the investigation at this time will include Marshall himself, John Boyall and possibly Stephen Whittamore. It appears to be clear evidence Marshall is conducting illegal PNC or CRO checks on behalf of John Boyall at the request of a number of reporters. The aim of the investigation will be to gather evidence of Marshall, Boyall and Whittamore's involvement in the misuse of the PNC or CRO systems with a view to prosecuting them for any offences disclosed or to prevent further misuse. Early consultation will take place with the CPS regarding appropriate charges should sufficient evidence be obtained." From the way in which the terms of reference are set out, it's clear that charges of conspiracy might be under contemplation. Have I correctly understood it?
A. Yes, that's correct, sir.
Q. The possible conspiracies might be conspiracy to corrupt, which at that point would probably be under the 1906 and 1916 Prevention of Corruption Acts, or the common law offence of misfeasance in public office or the secondary offences in relation to that common law offence. Did you see any difference between the two?
A. I initially made reference to the fact that I was considering conspiracy to corrupt, and I think I made a note of that in my decision log. That really was a label that I gave the general activity at that time. Clearly the indictment subsequently read different, but that's not unusual when it's referred to the CPS and then obviously counsel have a view on that and they would choose the most appropriate charges. So conspiracy to corrupt was a general term applied to it because that's what we thought it was at the time, but the most appropriate charge was obviously decided by counsel. I believe that was conspiracy to commit misconduct in the end.
Q. I think it became conspiracy to commit what was described as misfeasance, it's the same as misconduct in public office. Can we look at a few of the decision logs to see how your thinking may have evolved? This is under BG2, tab 3 in the bundle which has been provided. Go to decision 20 on 10 November 2003, which is page 16094. The decision was taken to arrest Mr King, do you see that?
A. Yes, I do, sir.
Q. In your own words, why was the decision taken to arrest him?
A. I seem to recall that we had arrested Paul Marshall and we were analysing a lot of telecommunications evidence that we had taken from his telephones and from his premises, telephone bills and the results of billing requests and subscriber requests, and from that we identified another link in the chain that we had previously not realised was there, and that was Alan King, a former police sergeant, I believe, who used to work in the same area as Marshall, and we saw a series of contacts between those two, which indicated that he was part of that chain. So on that basis he was then deemed to be a suspect involved in that, and I made a decision that he should be arrested on that basis.
Q. On the same day, you make another decision, number 21, page 16095. You cross out the words "arrest the journalists". The decision was to: interview under caution the journalists who are suspected of being concerned in the offence of conspiracy to corrupt." First of all, why weren't the journalists arrested in the same way as Mr King was?
A. The default position isn't always to arrest in the first instance. My consideration then were what is it that I was hoping to achieve and what I wanted to achieve was to interview the journalists under caution. I, through the legal departments of the various newspapers, was able to access and secure the attendance of the journalists, and that was relatively straightforward, I think, without any complication. Whereas King, I didn't have that access to King and it was necessary to secure him by arresting to secure his attendance at the police station for investigation interview by arresting him. But it was always a for each of the suspects and for every suspect, it's a consideration as to whether or not they need to be arrested in order to achieve what it is you want to achieve.
Q. But we know that you arrested seven journalists
A. Interviewed.
Q. Interviewed, pardon me, seven journalists. How were they identified?
A. From the ledgers that Stephen Whittamore had as part of his business.
Q. There may be a misunderstanding about this, but how many journalists in all have been identified in Mr Whittamore's ledgers insofar as concerns this operation, Operation Glade, in contradistinction to Operation Motorman?
A. Seven.
Q. So you arrested the whole lot?
A. We interviewed all of them.
Q. Sorry, you interviewed the whole lot, you never arrested them. Can I ask you this: the quality of the evidence you had in documentary form you touch on this in decision 21, 16094, you said: "Evidence exists which implicates a number of journalists in the offence of conspiracy to corrupt. In some circumstances newspaper articles and invoices from Whittamore show that PNC data has been requested and acquired." Pausing there, you obviously had the newspaper article, which contains the source information; is that correct?
A. Yes, we did.
Q. And you had an audit trail of requests from the journalists to Whittamore, but in your own words, to do what?
A. Whittamore kept very detailed ledgers of his business and he had invoices in there to going out to the various newspapers and named individuals within those newspapers. And that's where the seven names came from. On the actual invoices it could show CRO and I think vehicle check, but it was quite clear that they were asking for CRO details or vehicle checks, registered keeper details, and on those invoices would be a price as well. So we had the invoice, which to us was the acknowledgment, and obviously the PNC audit trail showed that the checks had been done, and that the invoices had gone out to the various newspapers. So we already had very good evidence that that link between the journalists did exist evidentially, that they were requesting or that everything indicated they were requesting the information, and obviously we had the audit trail which showed that Marshall had conducted the checks and fed them back through the chain into Whittamore.
Q. Are there any inferences to be drawn, possibly from a few matters: first of all, the speed or otherwise with which Whittamore was able to obtain this information for journalists; was it slow or fast?
A. It was fast. And during the interviews of the journalists, we put that to them on a number of occasions, to each of them during the course of the interview, that they couldn't reasonably when they were being interviewed, quite a few of them said they thought the information was coming from the courts because they thought CRO stood for court record office, and we put it to them that they couldn't possibly they couldn't possibly accept or assume that that information would get turned around so quickly, I think a matter of hours in some cases, two or three hours, and I think without exception, from memory, they all said that that is genuinely where they thought it was from, regardless of our suspicions. Really because we were putting to them that the turnaround was so quick, it couldn't be from there, we didn't accept what they were saying, but they stuck with that line and all of them stated that they would not have used Whittamore or any other agency if they had known the information was being accessed or obtained illegally.
Q. About the price or the level of consideration, could any inferences be drawn from that?
A. I seem to recall that they were paying perhaps ?200, ?300, and maybe a bit more on occasions, for the information. I'm not sure that you could draw an inference from that. I think the information was of value to them, not necessarily the quick turnaround, but I'm sure that was a factor in their using Whittamore because he provided such good service.
Q. Were the words PNC or Police National Computer on any of the invoices you saw?
A. I don't recall, but I couldn't say for sure. I would have to have a look at them again. Certainly CRO was written on the invoices.
Q. The information itself included information as to previous convictions of a target; is that right?
A. A target for the newspapers?
Q. Yes.
A. Yes. Individuals that were of interest to newspapers. Registered keeper details for their vehicles, presumably to find out where they lived, or previous convictions that they may have had.
Q. In that interview was it put to the journalists: well, information as to previous criminal convictions is not in the public domain, almost by definition it must be obtained illegally?
A. Yes, it was. It was specifically put to them, and they pleaded ignorance around how the information would have been obtained illegally. They just said they wouldn't have used Whittamore if they had have known it was being obtained illegally.
Q. Did you conduct any of these interviews yourself, Mr Gilmour?
A. No, I didn't.
Q. You obviously reviewed the records of the interview, which we don't have. The CPS, we know, took a view about it. Did you take a view as to the plausibility or otherwise of the defences which were being maintained at interview?
A. I did take a view. As I said earlier, it was put to the journalists that the speed with which the checks were being turned around would suggest they weren't being obtained through courts or court records, but that said, we couldn't establish guilty knowledge on the part of the journalists as to where the information was coming from. LORD JUSTICE LEVESON Well, at highest, it would be an inference, wouldn't it?
A. Yes, sir. LORD JUSTICE LEVESON At its highest.
A. At its highest. The other difficulty that we had, sir, and this came out during the course of the interviews, was that all the journalists accepted that they used Whittamore to obtain the information, and obviously they all denied knowing that it was coming from the PNC, but frequently they would say, "Yes, I accept I asked for that information, but that piece of information I didn't ask for, it could have been any other journalist within the newsroom using my name when they contacted Whittamore", so even attributing all the checks to a specific journalist would have been difficult. LORD JUSTICE LEVESON I see. MR JAY Or maybe not on a conspiracy charge, Mr Gilmour, but let's not investigate that. Can we look at one or two other decision logs, just to see how this evolved. Decision 22, page 16096, you're thinking now about the need to devise a press strategy for the proposed interview of journalists?
A. Yes, sir. That's standard for all investigations of this nature, and any other investigation which is going to attract media attention.
Q. Did you fear a press backlash to an investigation of journalists?
A. No. We didn't fear a backlash. We were aware that it would cause a reaction. The reason for having a media strategy was to deal with the enquiries that we would expect to come from dealing with the media. It wasn't that we feared a backlash, we just knew that this would attract a lot of attention and we needed to have a process in place to manage the questions that would come in.
Q. Was the need to devise a press strategy in any way linked with your decision not to arrest the journalists but instead to invite them for interview?
A. No. There would have been a press strategy in any case.
Q. It's clear from the next decision that you weren't going to interview the journalists until you had arrested and interviewed Marshall and King. That presumably was for sound operational reasons. You wanted to have the best available evidence to be able to put to the journalists as and when the need arose?
A. That's correct.
Q. Decision number 24. The decision is to meet with the CPS after reviewing King's computers. The reason: "To assess and evaluate all evidence gathered to date, to assess the strength of evidence against all suspects, to decide if interview under caution for journalists should proceed." I've been asked to put this to you, so you can deal with it: does this decision demonstrate a diminishing will to interview the journalists?
A. No. In my opinion, no, because we did interview the journalists.
Q. And the decision just bear with me there was a further review, decision 27, which starts at 16101. We're now on 19 December 2003. King's computer has been fully reviewed. Then on the next page, 16102, you say: "I reviewed this case, which is the subject of CPS advice. It's likely that the advice will be to charge all subjects on 14 January 2004. Careful consideration needs to be given to the interviewing of the journalists who it would appear have required the checks." I've been asked to put this to you: why was careful consideration required in relation to the journalists over and above any consideration you gave to the other suspects?
A. Sir, I should point out that this isn't my entry. I do recognise the signature, I believe it's Detective Superintendent Tony Fuller. So I don't think I'm in a position to answer that. I can give a view, if you wish. I think it's because of the significance of what we were dealing with and recognising that significance and just giving it due consideration to be able to manage the consequences of what we were doing, or the fallout from what we were doing.
Q. Because the record reads on: "Clearly there would be huge press interest when this happens which would need to be very carefully managed." Out of interest, was there huge press interest?
A. I don't believe there was. I don't recall that much press interest.
Q. Then you say: "I will therefore arrange a Gold Group to take place before 14 January 2004 involving That's a Deputy Assistant Commissioner, isn't it?
A. Yes, it is sir.
Q. So you're taking it to a high level. Then that's Mr Fuller, he's the superintendent or the chief superintendent, and then you and then other officers, and then Mr Fedorcio is involved as well. Do you know why he was going to be involved?
A. I think I should say that I don't believe this meeting took place. I haven't seen any record of this meeting taking place and to the best of my recollection I didn't attend a Gold Group. I'm not entirely sure there was a Gold Group. Just to help everybody understand, a Gold Group is called to review a significant event, it could be an investigation, it could be some other event. So as the organisation can properly manage that and co-ordinate a response to it, members of the Gold Group would generally be the heads from particular units or other people who can bring specific skills or support or arrests which could assist the investigation or the event. So in answer to your question, sir, I would assume that would be why Dick Fedorcio would have been included on that, because from recollection I think he was head of the media section or media department within the MPS at that time, but I can't specifically recall
Q. He was.
A. And that would have been why he would have been there.
Q. Well, at all events, the decision to interview the journalists is decision 28, taken by you on 16 January 2004. We'll come to the upshot of that decision. Can I go back to paragraph 33 of your statement. You point out at paragraph 33, this is at a meeting which took place in November 2003, you were in fact of the view that the journalists should be arrested before they were interviewed; is that right?
A. Yes. That's correct, sir.
Q. Can you explain why you were overruled or did you change your mind?
A. I wasn't overruled, sir. That was an opinion that I had formed at that point. The investigation stopped well, from the operation's point of view started in August. As you can imagine, there was quite a large quantity of material that we needed to go through, we were constantly doing that, so the evidence was being updated almost on a daily basis, particularly from the ledgers, the information within the ledgers and the telecommunications data. As that assessment went on over a period of weeks and months, I realised that we actually had significant evidence to show that connection between the journalists and Whittamore, and in fact everybody within the chain, to the point that taking you back to the question around arrests, I then reconsidered the need to have to arrest the journalists and to conduct any searches because in reality I already had what I assessed to be significant evidence showing that link, so in my view the need to arrest diminished and I didn't need to do that and secured their attendance through invitation. LORD JUSTICE LEVESON So it's not just a question of arrest that's concerned, it's whether you need to effect a search, because arrest carries with it, under PACE, certain rights of search?
A. Yes, correct, sir. They can obviously be two operate issues. LORD JUSTICE LEVESON Of course.
A. But on this occasion there wasn't I decided there wasn't a need to go and search premises used by the journalists because we had a proof of that relationship and the information requests already within the ledgers. LORD JUSTICE LEVESON This was before they were interviewed and before they were saying, "I might be responsible for this bit but not that bit"?
A. Yes, sir. LORD JUSTICE LEVESON Had you understood that earlier, then that might have itself impact on your decision whether a search would have been of assistance?
A. Yes, sir. MR JAY But we know that the decision to interview was made on 16 January. The actual interviews took place between 19 January and 31 January 2004. This is paragraph 39 of your statement.
A. Yes, sir.
Q. And the journalists co-operated, they responded to written invitations to attend police stations to be interviewed under caution and they had legal advice. Is that broadly speaking correct?
A. That's correct, sir.
Q. Might it be said that you, rightly or wrongly, deprived yourself of the element of surprise? The journalists would know full well what you were going to ask them, and any line they might take in defence could be, as it were, orchestrated?
A. I certainly couldn't discount that. And equally, the need to search the premises may not have delivered anything for exactly the same reasons because Motorman and Reproof had already, for want of a better word, let the cat out of the bag. So yes, they would have been forearmed in advance of the interviews, but I can't say that for sure.
Q. I think you have told us that there was a consistency between the journalists and the lines they did take in answer to your questions. Is that fair?
A. Generally speaking it was along the same lines, yes.
Q. I suppose there are at least two inferences which could be drawn from that. Can I ask you about paragraph 41, please?
A. Yes, sir.
Q. You say two-thirds of the way down that paragraph, our page 18584: "All of the journalists accepted that they had used Whittamore to obtain information but denied knowing that a corrupt police employee or unlawful methods were being used to access the information." You told us that you had evidence from King and from Marshall. Did you have evidence from Whittamore which would enable you to complete the jigsaw in relation to what you might put to the journalists?
A. From the ledgers? Yes.
Q. But beyond what the ledgers said, they spoke for themselves, did you have an interview under caution taken of him?
A. Of Whittamore?
Q. Mm.
A. Yes, we did.
Q. Was there any reference there to his use of the Police National Computer?
A. He denied using the Police National Computer to obtain his information.
Q. When he said "his use", I meant of course his use through the agency of Mr Marshall. He denied that?
A. Yes, he did, sir.
Q. What did you think of that denial?
A. Well, again, looking at Mr Whittamore and Mr Boyall and Mr King and Mr Marshall, it was my view, a view shared by companies, that given the nature of their business and how prolific certainly Boyall and Whittamore were in acquiring information, that it didn't wear, you know, the fact that they were saying they didn't know it came from the PNC. They were professional information gatherers who would have recognised that you couldn't get that fast turnaround from a court, even though they did say that they thought it was coming from court. So we didn't accept what they were saying.
Q. But the link between Whittamore and Marshall was clearly established, wasn't it?
A. We didn't we never established a direct link between Whittamore and Marshall. We had, obviously, the indirect link. We had Marshall, King, Boyall and then Whittamore.
Q. Was Mr King denying that he knew the information was obtained through access to the Police National Computer?
A. Mr King didn't make any comment, from recollection, to any of the questions put to him about that.
Q. Well, what happened then, we know that the last interview took place on 31 January 2004. The file was then passed on to the CPS in the natural and ordinary course of things and in paragraph 45 of your statement, 6 March 2004, CPS advised there was insufficient evidence to charge any of the journalists.
A. That's correct.
Q. That's their decision, it's taken out of your hands by then. And then letters are written to the journalists explaining that state of affairs. That's right, isn't it?
A. Yes, sir.
Q. We also know what happened at Blackfriars LORD JUSTICE LEVESON Before we go to Blackfriars Crown Court, I think we just ought to clear something up in relation to your exhibit BG5.
A. Yes. LORD JUSTICE LEVESON They needn't go on the screen. They are copies of letters that were written to journalists and the names of the journalists will be redacted, if they haven't already been. But the important feature to anyone reading these letters is this, isn't it: Presumably you've taken these off a computer system which automatically dates the letter?
A. That's correct. LORD JUSTICE LEVESON So it is wrong to read the date as 20 March 2012, which is presumably the date that the letters were printed?
A. Yes, sir. LORD JUSTICE LEVESON Your statement makes it clear that it was March 2004 that these letters were sent.
A. Yes, sir. LORD JUSTICE LEVESON So before anybody suggests that you've been creating letters later on, that's just not right?
A. It's just the way that the computer updates them on the day they were actually printed. LORD JUSTICE LEVESON I'd understood that, but I wouldn't want anybody to misunderstand it. MR JAY Were you disappointed by the CPS decision or not?
A. I accepted the decision on the basis that we couldn't prove guilty knowledge. I wasn't disappointed with the CPS taking that decision; I was disappointed that we couldn't prove guilty knowledge.
Q. Well, I suppose that was nothing compared with your level of disappointment with what happened at Blackfriars Crown Court in April of 2005, Mr Gilmour?
A. That was very disappointing, the outcome of the trial. Obviously the four were convicted but the sentences, in my personal opinion, were lenient. LORD JUSTICE LEVESON Let's just understand this. Were these different judges, Marshall and King on the one hand, Whittamore and Boyall on the other?
A. I think it was the same one, sir. LORD JUSTICE LEVESON So they were all am I misrecollecting that Whittamore and Boyall was Judge Samuels, is that right? MR JAY Yes, it was all on the same occasion. LORD JUSTICE LEVESON Yes, I noticed that, but I thought that he was referring to some earlier decision of a recorder.
A. Sir, if I can help, Mr Marshall was found to be in possession of a large quantity of property which didn't belong to him, and he was charged with handling stolen goods, and a different judge heard that matter, and maybe that's what's being referred to. LORD JUSTICE LEVESON I see, all right. But there it was, these four were all conditionally discharged, and you describe the sentences as a disappointment to such extent that consideration was given to referring them to the Court of Appeal, but unduly lenient sentences at that time, certainly, could only appeals could only be brought in relation to indictable only and certain other offences, isn't that right?
A. It's beyond me, sir. I wouldn't like to comment. LORD JUSTICE LEVESON All right. You're coming back into my territory of the law. And the other feature is the only penalty for Data Protection Act offences, am I right in saying, at this time was financial and indeed remains financial, so by adding Section 55.1(a) of the Data Protection Act 1998 to an indictment that charged conspiracy to commit misconduct in public office, which of course is a common law offence and therefore sentences at large, pleas were accepted to offences which only carried a potential financial penalty. Do you know about that?
A. Sir, I'm obviously aware of what happened. It was a matter for the Crown Prosecution LORD JUSTICE LEVESON I wasn't in any sense criticising you, Mr Gilmour, but do I have that right, Mr Jay? MR JAY You have. LORD JUSTICE LEVESON I thought so. MR JAY I think the rest of it speaks for itself and you've covered the inferences, if any, which could be drawn from the journalists' interviews. The rest of the questions which I've been asked to put are really just comment on the facts as they stand, and I don't think it's necessary for me to ask them. Thank you very much, Mr Gilmour.
A. Thank you. LORD JUSTICE LEVESON Mr Gilmour, thank you very much indeed for the obvious work you've put into reconstructing what happened a very long time ago. Thank you.
A. Thank you. LORD JUSTICE LEVESON I'll rise so that we can reconnect the bits of electrical equipment. (12.02 pm) (A short break) (12.14 pm) MR JAY The next witness, please, is Mr Middleton. MR RUSSELL CHARLES MIDDLETON (sworn) Questions by MR JAY MR JAY Your full name, please?
A. Russell Charles Middleton.
Q. Thank you. You've provided us with a witness statement dated 26 March of this year. You've signed and dated it under the standard statement of truth. This is the evidence you are content that this Inquiry accepts formally?
A. That's right.
Q. In terms of your current rank, you were temporary Assistant Chief Constable in the Devon and Cornwall Police at the time you gave your statement. I think you're now back to your substantive rank
A. That's correct. Please don't read anything into that.
Q. Detective Chief Superintendent.
A. Yes.
Q. That is what your rank always was?
A. Yes. I was in the temporary role for seven months, yes.
Q. You've been in the Police Service for 24 years, but at the material time, this is 2002, you were a Detective Inspector?
A. I was, yes, with some 14 years' service at the time.
Q. Thank you. What was your role in relation to Operation Reproof?
A. I was the deputy senior investigating officer. The actual senior investigating officer retired some years ago.
Q. Can you in your own words you cover this in paragraph 2 of your statement, 18368 tell us the background to Operation Reproof and what it was about?
A. Yes. Reproof started, if I just briefly cover that because I'm sure you'll ask me some further questions, as a result of a blackmail investigation inquiry down in Plymouth in 2001 whereby a member of the public produced at a local action group meeting some previous convictions of a person who was bidding for the contract for a particular development in Plymouth. That obviously caused some concern and led to an initial investigation as to where had that individual got those previous convictions from, which led to some searches of various premises, which then gathered much information that led to the scoping of Operation Reproof as to how people had come to that information. LORD JUSTICE LEVESON Just pause a moment. (Pause). All right, carry on. MR JAY In terms of Operation Reproof I will have to speak up a bit, we have competition, Mr Middleton.
A. Yes.
Q. Who were the ultimate consumers or customers?
A. There were many different consumers and customers, and that was why the investigation was very extensive and wide-ranging. Predominantly we were looking at members of past and present police officers in Devon and Cornwall accessing the initial information and that was going through private investigators, private detectives, and on to various customers, sometimes three or four links away in that chain, so customers would vary. Predominantly, at the end of the inquiry, the main customers were national/international sometimes insurance companies, debt recovery agents and the like, who had instructed private investigators, and then three or four links down the chain, some of that information was being obtained corruptly.
Q. The direct perpetrators of the offences, or rather those suspected of committing the offence, you list in paragraph 5, page 18370. These were a range of serving and retired police officers and support staff; is that right?
A. Yes, that's correct.
Q. And they were obtaining information well, from where?
A. As I said, the instructions were coming from various different customers. The predominant basis of my investigation was based on previous conviction information, and on occasion vehicle keeper information, addresses and that sort of thing, so the main areas of focus were from the Department of Work and Pensions, a retired police officer who worked there, and also the serving or currently serving, as was then, police officer in Devon and Cornwall accessing PNC information. That was being passed to a particular private detective, who was then channelling it upwards from there.
Q. Channelling upwards to whom?
A. To various different people and that's why the scope and the range of the investigation was very wide. As I've said, on most occasions it went to ultimately three or four links up the chain, national companies, insurance companies, who were instructing their own investigations into civil claims, accidents, that sort of thing, through to on some occasion matrimonial issues with a private detective only one or two links up the chain from our main private investigation company locally in Devon.
Q. There was a link and this brings in, I suppose, the nexus with other operations with a company called Data Research based in Surrey; is that right?
A. That's correct, yes.
Q. What was the nature of the link?
A. If I can start by saying once we'd commenced the investigation, because of the potential scale of it right from the outset we involved the as were then Police Complaints Authority, the PCA, pre-IPCC, and the Crown Prosecution Service were involved right at the early stages, so that we had advice and guidance support all the way through as a joint prosecution team, if you like. Once we'd done the initial searches, huge amounts of data was recovered that had to be painstakingly gone through to find the links back up through the chains. Data Research is a company in Horley, as you mentioned. They featured very heavily as the third link in the chain, who were instructing the Devon SAS investigations, who were therefore, from that point, asking the police officer or the DWP staff to do the checks for them. And then it would have been interpreted into reports, passed back through the various private investigators, predominantly, as we said, to Data Research in Horley.
Q. Their premises were searched pursuant to a warrant?
A. Yes. Obviously I'm aware of previous evidence that's been given to this Inquiry in respect of that. Having done a lot of the investigative work, and clearly intending and needing to search and make arrests at Data Research based on what we knew at that point, we actually briefed the Information Commissioner's office as to what we were doing, we were aware of an interest they had in that company, we came to an agreement with the Information Commissioner that they would come along with us on the search so that we would deal with what we were looking for, and any subsequent information that would be relevant for this morning they would take away and deal with themselves.
Q. The search, I think, was on 8 March 2003.
A. That's right.
Q. Mr Owens gave us the exact date. That's the date I recall. He was there on that occasion. Your officers were also there on that occasion?
A. Yes.
Q. And a substantial quantity of data was recovered pursuant to that search; is that right?
A. Yes. I actually went on that search myself.
Q. Can I deal with this critical issue, really, in relation to the scope of Operation Reproof?
A. Mm-hm.
Q. Why were journalists not within scope, as it were?
A. I think I need to make clear they weren't out of scope. The whole inquiry right from the outset was extremely open, an open-minded approach as to what we would discover. The initial information, as we said, linked pretty much specifically to a local investigation, detective private investigation agency in Devon and the flow of information was from the police officer and the other staff I've mentioned through to that private investigator, up one or two more chains, and we were tracking the customers each and every occasion, open-minded as to who those customers would be, and we never found any direct evidence or indirect evidence linking that information being requested by or for any part of the media or journalists.
Q. Were you in liaison, though, with the ICO, who of course were undertaking their own Operation Motorman, which operation did reveal copious links with journalists?
A. In liaison, yes, in the true spirit of that word. Actually what did happen is we went to them to brief them on our operation and investigation, invited them along on the search so that they could seize any information that was relevant to what they were doing, that they would then take on, and there was effectively a contract drawn up as to who would deal with what if anything particular was found. A particular document was found, I think it was PS28 from recollection, that was of extreme interest to the Information Commissioner's team, that they took that away on the absolute understanding they were then going to deal with that to allow us to deal with the other wide-ranging matters that we had. They took that away. We were aware of the culmination of that inquiry but they effectively went their way and did their investigation. We carried on with ours. There was contact between disclosure packages shared et cetera but they did their investigation distinctly separate to ours. I'm also aware that their investigation, Operation Motorman, then led to Operation Glade, so you could track it back and say that the seizure of that document at Data Research subsequently led to those two investigations, but we weren't involved LORD JUSTICE LEVESON PS28 was what generated Motorman; is that right?
A. Yes. MR JAY We recall Mr Owens' evidence about that. It was a list of vehicle registration numbers
A. That's correct, yes. We then carried on with our investigations to what we were dealing with, leaving the Information Commissioner's investigators to deal with their own matters. LORD JUSTICE LEVESON So we've heard this evidence in absolute reverse order?
A. Yes, that would appear to be the case. LORD JUSTICE LEVESON Right. MR JAY In paragraph 8 of your statement, 18375, you say: "There was no direct evidence found during the course of the investigation that any media organisation was involved in any way." What about indirect or inferential evidence?
A. As I've said right from the outset, the mindset of myself as the senior investigating officer and my team, who were thoroughly professional throughout, was we were open-minded as to what we would find and we would have dealt with that and pursued that based on information or evidence that we had. We deal with information, intelligence and evidence. The CPS were working alongside us, as were the Police Complaints Authority. We did not have anything that directly or indirectly linked to journalists. Had we done so, we'd have thoroughly investigated that.
Q. Can I ask you this general question, taking care not to name anybody: did part of your investigation include two senior politicians?
A. It did, yes.
Q. The fact that senior politicians were involved, or at least two of them, was that at least not an indicator that the press might be of interest?
A. There could be and was some speculation at the time. As I've said, I was dealing with at the time, and still do now, information, intelligence and evidence. There was legislation that was investigated, and when I say investigated, when we're dealing with those particular issues, every single case was dealt with properly, from my perspective, which resulted in those cases there was a particular private investigation company up in Newcastle that was investigated thoroughly. That individual was arrested, his premises were searched, all information seized from that premises was thoroughly researched with a view to trying to find who he was getting that information for. We did not find that, which was disappointing, but it just wasn't there. We arrested that person, interviewed them thoroughly and his answer to every question was "No comment", so we weren't able to take that particular line any further.
Q. At the hearing in the Crown Court on 17 October 2005, this is the Exeter Crown Court, His Honour Judge Darlow, counsel for one of the accused, Mr Stidwill as your statement makes clear there were six accused in all?
A. Yes.
Q. He speculated there's only one copy of the transcript available: "Because what the inquiry has apparently shown up is something which cannot be laid at the door of Mr Stidwill nor indeed if there are cases, as it appears there are, where somebody has been enquiring, perhaps on behalf of a newspaper or elsewhere, into MPs So he was onto the point that newspapers might be involved, particularly in the context of people of political interests.
A. I think the key point there, sir, is you've used the words "may be" and "might". That was the point. We were looking for the information, we were searching for the evidence, so it was part of the inquiry. We did not find that as to who those customers were. The person you've mentioned who was a barrister for the defence raised that as a may be and a might, but there was no evidence to support that. I don't know who that customer was. I wish I did.
Q. Page 18376 of your statement, on the internal original numbering it's page 9, level with the upper hole punch, you're talking here about the customers you had identified rather than customers one might speculate about.
A. Yes.
Q. You say clearly: "There was no evidence that these companies were aware that the people they were hiring to get the information were obtaining some of the data illegally." You may have been following the evidence given by the previous witness?
A. Yes.
Q. It's perhaps a similar point?
A. Yes, very.
Q. Would you like to develop that for us?
A. The evidence is the point as to my statement indicates at the end of the inquiry we didn't have the evidence. That's not to say we weren't searching for that information at the time, and every single customer and as I said, sometimes two or three links up that chain, sometimes four or five, and the further away you get, the harder it is to establish what they're actually requesting at the time every customer, through to some companies that were represented by senior solicitors in London, were interviewed and gave statements as to what they were asking for, what they expected, did they know, should they have known what they were getting. And a key point in the whole of the inquiry which was relevant to Data Research particularly is I would use the phrase "laundered", that actually the information they were getting right down at the front end, CRO details, conviction details, address details and the like, was then turned into a report that didn't indicate where it had come from. Indeed I think it was mentioned by the previous witness, if you know what date and what court to go to, one can get conviction details. So what certain companies were then doing, once getting the PNC information, they then went to the various courts and on payment of a fee were given the certified copies of convictions. They then featured as part of the reports that were passed on to the customers. LORD JUSTICE LEVESON But you have to identify precisely what you're looking for.
A. Absolutely. LORD JUSTICE LEVESON You can't say, "Well, I'd like to see every single Crown Court conviction for 30 March or for the month of March.
A. Absolutely. You have to go with the name, the date and the court. LORD JUSTICE LEVESON Or for the year.
A. Absolutely. Name, date and court, you can then go and for a fee collect that, which is what those companies were doing, and turning them into certified copies of convictions which they then passed on to their customers. LORD JUSTICE LEVESON So a certified copy of conviction is potentially obtainable, but you only get that if you know precisely what you need to know, or you only get what you need to know if you do something which actually you contend, and contended in that prosecution was criminal.
A. Absolutely. It that was entirely our case and our view, that's why the individuals who were systematic in that abuse were charged with the offences that they were charged with. MR JAY I've been asked to request you, Mr Middleton, if you don't mind slowing down a bit. You're a very articulate witness, but everything you say has to be noted down.
A. Okay.
Q. What happened was that there was a hearing in Exeter on 19 October 2005.
A. Yes, there was.
Q. The transcript of the ruling is available under tab 2 of the bundle we have. It starts at page 20013. I've read the ruling twice. It's not altogether easy to follow some of the reasoning, or indeed the conclusion, but the conclusion appears to be that the judge was sceptical that even if the facts were proven, they could as a matter of law amount to the common law offence of conspiracy LORD JUSTICE LEVESON I think you ought to expand that a bit, Mr Jay. I think what he was faced with was an application to stay proceedings as an abuse of process, which application he roundly rejected. But in the course of rejecting it, he offered his views first of all as to whether the facts made out the offence, which actually he was basing purely upon his study of the papers, and secondly, on what he would do even if they were. MR JAY Yes. LORD JUSTICE LEVESON And he caused the Crown Prosecution Service to ask themselves: do you want to spend all this time on this trial if I am of the view either (a) that the facts may not make out an offence, or (b) that if they do, this isn't terribly serious? And then not perhaps surprisingly the CPS went away to think about that. Is that a fair summary of what the judge did?
A. That's a very fair summary. Thank you, sir. LORD JUSTICE LEVESON Yes. MR JAY Yes. It's not really necessary to look at that any more. LORD JUSTICE LEVESON Sometimes my experience comes in valuable, Mr Jay. Not often, but sometimes. MR JAY And that's where it ends, probably, Mr Middleton; is that right? In terms of your you may have been disappointed by the outcome, but there we were.
A. That's the case, sir, yes. LORD JUSTICE LEVESON And whereas now this might be considered a terminating ruling, in fact it might even have been capable of being fashioned as a terminating ruling, there was no basis upon which that ruling could be challenged in a higher court.
A. Yes. LORD JUSTICE LEVESON Therefore, the CPS accepted the consequences of the judge's expression of view.
A. Absolutely. I met a number of times afterwards with CPS and counsel, and that was the decision that was made by them ultimately. MR JAY Yes. Those are all the questions I have, Mr Middleton. LORD JUSTICE LEVESON Yes. Thank you very much indeed, Mr Middleton. I'm very grateful to you for providing the summary of what was the origin of a lot of the evidence that we've heard. Thank you very much indeed.
A. Thank you. LORD JUSTICE LEVESON The next witness is due at 2 o'clock; is that right? MR JAY Yes. I think Mr Sherborne has a short application he would like to LORD JUSTICE LEVESON Yes. One moment, Mr Middleton. This might involve you. Does it? MR SHERBORNE It doesn't, no. LORD JUSTICE LEVESON It doesn't? Thank you very much. MR SHERBORNE Sir, given the evidence of Mr Gilmour this morning and what it reveals, there are a number of matters that I wanted to raise with the Inquiry. Mr Crossley has already sent an email to the Inquiry solicitors about this. I was going to raise these matters, if I may, at 2 pm, given that there are some additional points that I wanted to discuss with Mr Crossley and with some of my clients in the light of the oral evidence that Mr Gilmour gave earlier this morning. I don't think it's going to take particularly long, although, as I understand it, we are somewhat short of evidence this afternoon. LORD JUSTICE LEVESON We're never short of evidence, and I can always find something to occupy our time, Mr Sherborne. MR SHERBORNE And I'm happy to assist in that. LORD JUSTICE LEVESON Yes, it's clear you are. Is it sensible then to put off that which you want to make submissions about until after we've heard the sole witness that's available for this afternoon? MR SHERBORNE I'm happy to do that, if that assists the witness. LORD JUSTICE LEVESON Yes. Is Mr Jay aware of the general nature of the applications that you wish to make? MR SHERBORNE I hope that he is. I can't see from behind whether he is. His face betrays the answer to that question. LORD JUSTICE LEVESON I think there are sufficient nods. MR SHERBORNE I'm very grateful for nods. LORD JUSTICE LEVESON Doubtless somebody at some stage will tell me. Thank you very much. 2 o'clock. (12.36 pm)


Gave a statement at the hearing on 09 May 2012 (AM) ; and submitted 1 pieces of evidence
Gave a statement at the hearing on 09 May 2012 (AM) ; and submitted 1 pieces of evidence


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