(10.00 am)
LORD JUSTICE LEVESON
Yes, Mr Jay?
MR JAY
Sir, first of all, we're going to have an update from DAC Akers, please.
LORD JUSTICE LEVESON
Thank you very much indeed. DAC SUE AKERS (recalled) Questions by MR JAY
LORD JUSTICE LEVESON
You've twice given evidence before, Deputy Assistant Commissioner, I'd be grateful if you bear in mind you're still subject to the oath you took at the beginning.
A. Yes, sir.
MR JAY
Deputy Assistant Commissioner, you've kindly provided the Inquiry with a further witness statement dated 20 July under the standard statement of truth; is that right?
A. Yes.
LORD JUSTICE LEVESON
So that it's quite clear, this statement, as indeed each of the others, has been provided following notice issued under Section 21 of the Inquiries Act.
A. Yes, sir.
LORD JUSTICE LEVESON
Thank you.
MR JAY
Paragraph 4 of the statement, first of all. You continue to lead all the operations. These, of course, are Operations Weeting, Elveden and Tuleta; is that right?
A. That's correct.
Q. Paragraph 5, could I ask you to speak to that, please?
A. Investigating all of these investigations and they're numerous we've worked obviously closely with the CPS, and they have advised us regarding potential offences. We've sought legal advice and in respect of both individual and corporate offences, and also in relation to our police powers and our options for investigating.
Q. Thank you. To date, as you explain in paragraph 6, you've primarily been seeking the co-operation of News International. Indeed the subsidiary company, NGN as well, I suppose. But your dealings with the Management Standards Committee, you explain that at the end of June of this year, a Mr Zweifach replaced Mr Klein; is that right?
A. That's correct.
Q. Can you help us with paragraph 8. Mr Lewis and Mr Greenberg no longer attend the regular meetings. Can you remember about when that change took place?
A. It took place fairly recently. At the beginning, when we began the enquiries, all contact was through the lawyers; then these were other lawyers, Burton Copeland. Then Mr Lewis and Mr Greenberg were introduced to help facilitate the co-operation, which they did. And in mid-May this year, following a development in our investigation, it caused the MSC to reconsider their position and they decided that they would prefer the meetings to be on a more formal basis with lawyers only. I should say, that hasn't affected the co-operation, which is still very good.
Q. Thank you. You explain in paragraph 9 in mid-May of this year there was a development in your investigation, which appears to have caused the MSC to reconsider their relationship with you. And there was a pause for several weeks in the voluntary disclosure material to you. But a meeting took place on 1 June, Lord Grabiner and other lawyers acting for the MSC, and voluntary disclosure resumed. So the pause was for two or three weeks; is that right?
A. Yes. The pause was from the middle of May until I think we then got more disclosure in the middle of June. 14 June, I think, was when we got our next disclosure. And it's continued since that date.
Q. In terms of the resources, you observe in paragraph 10 that the Management Standards Committee have committed significant resources to assist these investigations, continuing to co-operation and disclose documentation; a professional and productive relationship and not without its challenges. Operation Weeting now, paragraph 12. You explain the background. In paragraph 13, could you sum up the position there as to the number of people who have been arrested and when the bail has to be renewed or reconsidered?
A. Yes. 15 current and former journalists have been arrested and interviewed in relation to conspiracy to intercept communications. 12 of those remain on pre-charge bail, 11 of whom are due to return to various police stations tomorrow, 24 July, other than one individual who has been bailed to 2 August. One non-journalist has also been bailed to tomorrow, 24 July. Files in respect of all of these individuals are currently with the CPS for advice as to potential charges.
Q. Thank you. The perverting the course of justice matter, I think we all understand what that relates to and who the individuals are, but you've been careful not to name them. It's summarised in paragraph 14; is that right?
A. Yes.
Q. We can just note that. Paragraph 15, the non-journalist; you want to change paragraph 14 to paragraph 13?
A. Yes, the re-numbering has caused us to miss that. That should read "the non-journalist referred to at paragraph 13".
Q. You make it clear there that the alleged offence relates to money-laundering matters, and the bail has been extended to tomorrow's date. Paragraphs 16 and 17, I think you've already covered that satisfactorily?
A. I think I have.
Q. Unless there's anything else you'd like to add?
A. No.
Q. We're moving forward to Operation Elveden, which starts at paragraph 18 of your statement. May I invite you, please, to sum up the position there. It's paragraph 19.
A. Yes. Elveden to date has conducted 41 arrests. Broken down, that's 23 current or former journalists, four police officers, nine current or former public officials and five individuals who acted as conduits for corrupt payments. There are currently files at the CPS for three police officers and one journalist. And we're continuing to supply the CPS with files as we get them ready.
Q. The CPS are continuing to advise. There's a range of offences there, which of course will be familiar to the Inquiry and to criminal lawyers, but the money-laundering, apart from the well-known corruption offences and new Bribery Act offences, and before the Bribery Act, it was of course the Prevention of Corruption Act. Can I ask you, please, about paragraph 21, if I could ask you to summarise that?
A. Yes. Before I do, when I go on to talk about developments in our investigation, I have in some cases used the word "alleged" but I haven't repeated it throughout. I think I said this on a previous occasion when I gave evidence. Where I talk about these developments, what I say is a matter of allegation and not established fact. In relation to Elveden then, our ongoing investigation has recently revealed that in some cases where we've identified a public official who's received payments from News International, we've also established that they have received payments from other newspapers.
Q. Thank you. I'm going to ask you now to deal with paragraph 22 in some detail.
A. This relates to one case where the public official was a prison officer at a high security prison during the periods when the payments were made and the related stories were published. In this case, the individual's former partner has acted as the conduit and facilitated the payments into their bank account. And that bank account, from the former partner, reveals numerous payments from News International, Trinity Mirror and Express Newspapers between April 2010 and June 2011. And those payments total nearly ?35,000. There were in fact further payments after the prison officer retired, which he did in June last year. The last of which was made by Express Newspapers in February this year.
Q. Thank you. And paragraph 23, you say that co-operation from the MSC has enabled you to identify the stories to which the News International payments related, and further investigation has enabled you to identify stories in the Daily Mirror, the Sunday Mirror, the Daily Star and the Sunday Star that are suspected to be linked to the payments?
A. Yes, that's right, sir.
Q. Again, in the same way as you carefully dealt with paragraph 22, can you do the same, please, for paragraph 24?
A. Yes. This describes another case we're investigating, where again the public official is a prison officer at a different high security prison. And again, that individual's partners has facilitated the payments into their account. These payments are from Trinity Mirror. They were made between February 2006 and January 2012, and the total amount in this case was in excess of ?14,000. Again, further investigation has enabled us to identify stories in the Daily Mirror which we think are linked to those payments.
Q. Thank you. In paragraph 25, the assessments you've made to date, could you explain those to us, in particular the public interest aspect?
A. Yes. As I say, ultimately the public interest test is a matter for the CPS, but we make an assessment ourselves as well around public interest as to whether the alleged criminal conduct can be justified as being in the public interest, as well as whether there are grounds to suspect offences. It's our assessment that there are reasonable grounds to suspect that offences have been committed and that the majority of these stories reveal very limited material of genuine public interest.
Q. Thank you. On 11 July obviously only two weeks ago or slightly less following the arrests of one employee of Trinity Mirror and one employee of Express News Group, letters were served on the head of legal for those newspapers requesting specific evidential material. Can I ask you, please, to explain what has happened and to update us as to progress and co-operation with those companies?
A. Yes. We've we asked for a response by 18 July to our request for evidential material, which we think are in the possession and control of both Trinity Mirror and Express News Group. We've had those responses. Trinity Mirror Group have asked us to obtain a production order and indicated that they won't oppose that. Express Newspapers have taken a slightly different stance. They wish to proceed by way of voluntary protocol, which would be more akin to how we've co-operated with News International. And at the moment we're in the process of drafting that voluntary protocol.
Q. Thank you. In paragraph 27, further lines of inquiry may result in further arrests. In paragraph 28 now, Deputy Assistant Commissioner, can you explain what's happening with Elveden and the MSC, in particular the Sun newspaper?
A. Yes. These paragraphs I'm attempting to explain, as asked in my Section 21, how co-operation has worked. We opened our investigation, as we say, on the basis of full co-operation, and the MSC then conducted their own internal review of the Sun, which was not a request made by us, but they did it nevertheless. As a result of that, they voluntary provided a lot of documentation, which evidenced suspected criminality and which led to a couple of individual arrests and then to very substantial arrest days, which were highly publicised. They were on 28 January this year and then again on 11 February, and involved the Sun newspaper. Following that, those two arrest days, there was considerable adverse publicity of both the MPS, the police and the MSC, including threats of legal action against the MSC. Following that, there was a change in the nature of the co-operation. We were being asked perhaps to justify our requests to a degree that we perhaps formerly hadn't been, and the material that we were requesting was slower in being forthcoming. The MSC were obviously very conscious to protect legitimate journalistic sources, and of course the law places very strict restrictions on the police obtaining such material. The comments are we started on the basis of full co-operation, so any change in that co-operation could adversely affect initial decisions that we'd made and arrests that were made as well. But I should stress that, despite challenges, quite correct and proper challenges, the co-operation continues and we have recently received a substantial amount of material.
Q. Thank you. In paragraph 31 you refer to an internal review the MSC have conducted of their own volition, but that has yielded no further evidence for you; is that right?
A. Well, the MSC would say the result of the review was the material that they had disclosed to us, but we haven't received or I understand there is no formal report as a result of their review.
Q. Okay. May we move forward to Operation Tuleta, and I ask you, please, first of all in paragraph 33 to summarise where we are. It's paragraphs 33 and 34.
A. Yes. "Tuleta" is a kind of over-arching name for a number of discrete investigations. We're conducting an assessment of 101 separate allegations of data intrusion. These include allegations of phone hacking, computer hacking, improper access to medical, banking and other personal records. In order to undertake this assessment, we've collated relevant documentation from previous inquiries and looked at electronic storage devices which had been previously seized in other inquiries. And we're gathered between 8 and 12 terabytes of data across 70 storage devices, which we're searching for evidence to either support or contradict the allegations that have been made by these 101 individuals. That's a very substantial amount of documentation and data. I know the last time I was here I was hopeless in answering your question as to what that might amount to, so I've done some homework and a terabyte, if downloaded in the form of a kind of normal-size paperback, which is then piled on top of one another, I'm told the terabyte amounts to three and a half times the height of Everest. So between 8 and 12 terabytes, whilst leaving rather a large margin of error, I agree, it's still a substantial amount of documentation.
LORD JUSTICE LEVESON
It creates its own problems for analysis and research?
A. It absolutely does, because we can't look at every piece of documentation. We have to be careful about how we search it and what criteria we put in that in our questions of the data.
LORD JUSTICE LEVESON
Yes.
A. But continuing on, sir, to date we've made six arrests under the Computer Misuse Act and/or in respect of offences of handling stolen goods, subjects of which are all on police bail pending completion of the arrest phase and further investigation. As in the other cases, in due course files will be submitted to the CPS for charging advice.
MR JAY
Thank you. The MSC have been one of the sources of material for Operation Tuleta purposes. Then paragraph 36, you explain what happened in April of this year. Can I ask you, please, to tell us about that?
A. Yes. As a result of the material that we've had provided to us from the MSC, it seems that on occasions we've found that material has been downloaded from and is in possession of News International titles which appear to have come from stolen mobile telephones. It appears from some of the documentation, and that's dated around late 2010, that one of the mobile phones has been examined with a view to breaking its code, its security code, so that the contents can be downloaded by experts. And obviously a significant and important line of inquiry for us is to identify the experts that have been used.
Q. At the moment, as you say, their identities are unknown to you but they're likely to exist in different parts of the country. Paragraph 38, tell us about that, please, and then lead into paragraph 39.
A. We'll obviously request now further documentation from the MSC as a result of what we've discovered in respect of the stolen mobile phones, and we're hopeful that that will produce further relevant information which will then lead us to the expert services, and when we reach them, at that point we hope to establish whether in fact these are just isolated incidents or just the tip of an iceberg.
Q. Mm. Thank you. Paragraph 40, one mobile telephone theft took place in Manchester and another in South West London, and this may suggest that this is more than an isolated local issue, but as you're careful to say, you're at a very early stage in the investigation.
A. Yes.
Q. Paragraph 41, please, it's a similar pattern, I think, with the co-operation of the MSC. It's now only lawyers who
A. Yes. The co-operation is exactly the same in terms of the make-up of the MSC team that deals with our offices, and now we deal entirely through the lawyers.
Q. You say that initially there was a challenge to Operation Tuleta's request for information about the apparent handling of the stolen phones and subsequent downgrades, but now there's a willingness to assist.
A. Yes, there is.
Q. Victims next. You're taking the story forward from when you last gave evidence. Can I ask you, please, to summarise paragraphs 42 to 46?
A. Yes. I think the last time I gave evidence we were still in the process of notifying victims and potential victims of phone hacking. We've completed that process now as far as we can insofar as we could identify the victims who we think have been likely to have been subjected to phone hacking. And so we've notified a total of 2,615, of which 702 we think are likely to have been victims.
Q. Mm.
A. We have a figure above 702 who we think are likely to have been victims but, for one reason or another, we're unable to contact those people. That's why there's a discrepancy in the figures between paragraphs 44 and 45.
MR JAY
Great, that's very clear. Thank you very much, Deputy Assistant Commissioner.
LORD JUSTICE LEVESON
Ms Akers, I received evidence of the response which the police received when they visited News International in 2006. Would it be right for me to conclude at this stage that whatever might have happened in the past at News International titles, the senior management and corporate approach now has been to assist and come clean, from which I might be able to draw the inference that there is a change in culture, practice and approach?
A. Yes, sir. I don't disagree with any of that.
LORD JUSTICE LEVESON
Thank you. It is obviously very important that when I report, and the exercise of this Inquiry will come to an end, as I'm sure at some stage so will your operations, it has the benefit of absolutely up-to-date information. Of course, I am not concerned about individuals at this stage, I am merely concerned with what's gone on in the past and what I might derive from that as to culture, practice and ethics, and what impact that might have on the future. But in order that I am absolutely up-to-date as far as is possible, I would be grateful if you would be prepared to return in the autumn so that I know what the position is it's obviously fast-moving and in that way at least can give those who read my report the benefit of what that up-to-date position is. I hope that won't cause you too much inconvenience.
A. No, sir, I'd be very happy to do so.
LORD JUSTICE LEVESON
Thank you very much indeed. Thank you. Right.
MR JAY
Now 81 statements which we were planning to read in today, but we've had a request from at least one core participant that that be delayed until tomorrow on the basis that they say there wasn't time to read them all.
LORD JUSTICE LEVESON
All right.
MR JAY
We can do that first thing tomorrow.
LORD JUSTICE LEVESON
All right. Does that prejudice proceeding with the submissions that people want to make at this stage?
MR JAY
(shakes head).
LORD JUSTICE LEVESON
They've all seen the statements, and therefore, to such extent as they wish to, as that might affect their submissions, then their submissions with be tailored accordingly.
MR JAY
Yes. I imagine the submissions are going to be at a higher level of generality. I don't know that, having had no idea what topics are going to be addressed orally, but I suspect it's going to make no difference whatsoever.
LORD JUSTICE LEVESON
All right. Before commencing the oral submissions that I have invited at the end of this module, it is sensible if I deal with the future progress of the Inquiry, and I do so under three headings, that is to say: issues that presently remain outstanding, the impact of Rule 13 of the Inquiry Rules 2006 ("the Rules") and any further developments. Outstanding issues. As I have just made clear to deputy Assistant Commissioner Akers, it is important that my report is based on what is then the most up-to-date information about the progress of the criminal investigation. Thus, without descending into who did what to whom or offending the self-denying ordinance on the detail, the extent of that investigation including how widely it then ranges and what it has excluded may inform my view about the culture, practice and ethics of at least a section of the press. It is in those circumstances that I make clear that I will issue another request under Section 21 of the Inquiries Act 2005 ("the Act") returnable on a date probably in September. Notice of a hearing will be provided in good time to all core participants to Modules 1 and 2, and they will have the opportunity of submitting any evidence they wish to deal with what is then reported. There are three remaining issues in relation to Operation Motorman. The first two arise from my ruling on 11 June 2012, paragraph 11 of which reads: "If Mr Sherborne's clients wish to provide the Inquiry with such information as they have collated from the Whittamore records where a continuous link to the present day can be established, they should do that without further delay and in witness statement form. Any other core participant will then be able to submit a short statement in response, either from the title or the journalist concerned. The purpose of this exercise is necessarily limited. It would not be to require titles to list when each journalist who made a request to Mr Whittamore left the paper; it is only intended to address the specific journalists that Mr Sherborne's clients have identified who are still in their employment. Nor would it be to require titles to prove in general terms the history of their retention or destruction of information acquired from Mr Whittamore, in the absence of specific and recent evidence of use. I am not in any event requiring that any of this be done either by Mr Sherborne or the individual titles but I will, of course, consider anything that emerges from the exercise (in addition to the information which Mr Dacre for Associated Newspapers Limited offered to provide in writing) and it will form part of the evidence." As I understand it, that information has not yet been provided to the Inquiry but is being pursued. It only seems fair to put a deadline on it: if any other core participant is able to deal with it, the evidence should be provided by the end of this month with a response by any relevant newspaper by 10 September. So as to ensure that there is no risk of work having to be done twice, I also identify that date for the other information that Mr Dacre offered to supply to which I also refer in that ruling. I do not anticipate that this evidence will require oral elaboration and I anticipate that I will make it part of the formal record of the Inquiry, along with other statements that are being read into the record when DAC Akers or whomsoever is then in charge of the police inquiry provides the further update. The third remaining issue arising out of Operation Motorman flows from my ruling of 10 July 2012 concerning the attitude of Associated Newspapers Limited to the evidence revealed in the documentation seized from the private detective Steve Whittamore. In short, I had been concerned to learn whether any core participant wished to argue that I could not use the Motorman material to reach generic adverse conclusions about the practice in general of the press perhaps because it was be wrong to conclude, even on the balance of probability, that breaches of Section 55 of the Data Protection Act 1998 could have been established against journalists. I then postulated three possible approaches namely, first, that it is conceded that there is prima facie evidence that journalists did act in breach of Section 55 by seeking information which, prima facie, could not be justified in the public interest. The second position is that the core participant does not want to advance a positive case contradicting the first position. The third was that it is, in fact, challenged that there is a prima facie case against journalists that they acted in breach of the law. Associated Newspapers Limited has now responded to that ruling and made it clear that it adopts the second of the three approaches: the open letter from its solicitors to the Inquiry to that effect will be published as part of the record. Apart from the police investigations and Operation Motorman, I recognise that there is real potential for other evidence to be forthcoming. In a number of the closing submissions, it has been suggested that one of the consequences of the fast-moving nature of this Inquiry has been an inability to challenge material particularly where relevant witnesses have already given evidence prior to new allegations being made. That is to misunderstand how the Inquiry has proceeded. It has always been open to core participants (and others) to submit evidence to the Inquiry to answer allegations that have been made and, in appropriate cases where the interests of fairness require, that evidence will be published as part of the record of the Inquiry. There have been a number of examples where this has already happened and I am prepared for that type of material to be provided to the Inquiry over the weeks to come (albeit no later than the end of August 2012 in respect of evidence prior thereto). One example will suffice. The Inquiry only learnt of the existence of Matthew Sprake very recently, but I am conscious that his evidence last week concerned, in large part, the work which he had been employed to carry out for The People. Further, it raised issues relating to the responsibilities for the ethical decisions in connection with its commissioning. Although I recognise that it is now too late to serve a notice under Section 21 of the Act on the editor, Mr Lloyd Embley (who gave evidence during the course of Module 1), should he wish to provide his account of that relationship, dealing with what Mr Sprake has said, I will, of course, consider it. Rule 13 of the rules. On 1 May 2012, I handed down a ruling dealing with my approach to Rule 13 of the rules, which I supplemented three days later with a further ruling dealing with the position of the Metropolitan Police. I did so specifically so that any challenge to that approach could be tested by way of judicial review in good time and without disrupting the timetable: see paragraph 64 of the ruling of 1 May 2012. There has been none and I intend to proceed accordingly. It is, however, important to make public certain aspects of this procedure. First, Rule 13 provides that I may send a warning letter to any person who I consider may be the subject of criticism in my report and, by Rule 13(3), must not include any explicit or significant criticism of a person in the report unless I have sent such a letter and provided the recipient with a reasonable opportunity to respond. In the circumstances, I intend to send letters under Rule 13 setting out criticisms which may be made on the basis of what is considered to be reasonably arguable on the facts and evidence canvassed over the course of the Inquiry to date, the purpose being to alert the recipients to the full range of matters in respect of which further representations may be made. What it is critical to appreciate, however, is that it should not be thought by any recipient that the specific criticisms which I consider to be reasonably arguable will necessarily appear in that form (or, indeed, necessarily at all) in the final report. Warning letters are an inherent part of conducting the Inquiry fairly and constitute the process of ensuring that all those potentially subject to possible criticism have the opportunity to respond. It may be that it will be thought that submissions that have already been made deal with the possible criticisms and it will be sufficient either not to respond or simply to refer to those submissions. At the other end of the spectrum, representations can include the provision of further evidence and I am prepared to consider the possibility that I may have to reconvene oral hearings to allow an appropriate response: see Beer, Public Inquiries, paragraph 9.41. Having said that, however, bearing in mind the approach which I have made clear that I intend to adopt to the facts, it should only be in the clearest of cases that the submission of further evidence should be contemplated. I ought to add that although further evidence might be read into the Inquiry record, I anticipate that the likelihood of consequential oral hearings to be comparatively remote. The second point to be made about the Rule 13 letters is to underline that responses will only be of value if they address the possible criticism. As foreshadowed in my ruling, I will shortly be issuing Rule 13 letters of a generic nature relating to the culture, practises and ethics of the press referring either to the press as a whole or to a part of or section within the press. I appreciate that it will be tempting for companies to respond by reference only to their own practices; each, however, has read or heard the evidence that has been put before the Inquiry and I expect responses which address the wider issues about the conclusions that I may reach generically. A response that says no more than, "Not me", will be of little, if any, value. Obviously, other letters may address possible individual criticisms: they will require an individual response. Finally, I wish to say something about the confidentiality of these letters. Rule 14 makes it clear that the contents of a warning letter are to be treated as subject to an obligation of confidence owed by each member of the Inquiry Team to the recipient and by both the recipient and the recipient's recognised legal representative to me. The purpose is not to keep the workings of the Inquiry secret: indeed, in relation to the recipients of any letter, the duty of confidence lapses when the Inquiry report is published. Rather, it is to recognise that which is set out in paragraph 10 above, namely that the criticisms outlined in the letter do not represent my concluded view. Thus to publish them as my view or as "emerging thoughts" (as some of the challenges which have I asked about during the hearings have been reported) would be to misunderstand the purpose of the exercise and misrepresent the position of the Inquiry. I hope that the duty of confidence will be observed by all. I will, however, wait to see. Further developments. In the ten months during which the Inquiry has received briefings, held seminars and been taking evidence, much has happened which is relevant to conclusions that may be reached as to the culture, practices and ethics of the press, and as to many aspects of the terms of reference. Events have transpired which have been reported and reports have given rise to complaint: a good example can be found in the evidence of Giles Crown dealing with the tragic death of an 11-year-old boy. In the same way that I wish to be kept informed about the progress of the police investigations encompassed by Operations Weeting, Elveden and Tuleta, so if there are further incidents that cause concern about the press that I can consider before issuing my report, I shall do so. Concerns have come to the attention of the Inquiry in different ways. The Inquiry has clearly attracted considerable public interest which itself has generated additional lines of inquiry beyond those initially identified. In addition, the Inquiry has been subject to a great deal of commentary. I have previously directed that the press cuttings in relation to the Inquiry will form part of its record. Without necessarily dealing with any explicitly, I will consider reports that in my view either support or undermine concerns that have been expressed in evidence; I will equally consider the validity of the comments that are critical of the direction or approach of the Inquiry. I add only that the collection of cuttings will continue until the Inquiry reports. Right. We were to start with Mr Sherborne, but I understand that he's suffered a family bereavement and in those circumstances we'll take a slightly different order. Do the core participants, Mr Jay, understand the order in which they are to speak and does it cause them any embarrassment?
MR JAY
I haven't checked with all of them.
LORD JUSTICE LEVESON
I'll rise for a few minutes for you to do that. (10.45 am) (A short break) (10.35 am)
LORD JUSTICE LEVESON
Mr Jay, I gather that arrangements have been made for those core participants who were due to speak this afternoon for representatives from their clients to attend. I don't want to disrupt those arrangements, so I'll hear Mr Garnham, who was due to speak this morning, and then we'll have an early break and resume this afternoon.
MR JAY
Yes.
LORD JUSTICE LEVESON
Right. Yes, Mr Garnham. Closing submissions by MR GARNHAM
MR GARNHAM
Sir, at the beginning of this Inquiry, the MPS emphasised that it came here to assist not obstruct, to self-criticise and not to justify, and to try and improve rather than to hide. The MPS has done everything it can to be open and transparent, willing to acknowledge mistakes and learn from the errors which the Inquiry exposes. In our written closing submissions for Module 2 of 11 May 2012 and our closing submissions for Module 3 of 17 July, the MPS attempted to summarise the evidence heard by you and the Inquiry insofar as it was relevant to the MPS or the relationships between the MPS and the press. We frankly admit that there have been incidents which have led to a plain perception of cosiness between particular senior MPS officers and particular journalists. The MPS also acknowledge that the decisions in July 2009 and September 2010 not to reopen the phone hacking investigation were taken too quickly and with a defensive and closed mindset. However, the MPS also submits that it's clear from the evidence you've heard that the vast majority of contact between the police and the media has been and continues to be sensible, constructive and proper. There has been nothing to suggest corruption on anything other than the rarest of occasions, and those rare occasions have been the subject of proper investigation and proper sanction. The evidence received by the Inquiry unequivocally demonstrates, we submit, that there was no relationship between senior officers and journalists that was in fact corrupt. There was no cosiness or inappropriately close relationships that in fact tainted police decision-making. More specifically, we say, the evidence has demonstrated that the phone hacking investigation was not at any stage limited because of pressure from or fear of the media, whether News International or the press more broadly. Similarly, we submit, the evidence has demonstrated that the decisions in 2009 and 2010 not to reopen the investigation were not in fact influenced by relationships between senior officers and News International. The MPS has addressed these points in detail in its written submissions and I will not repeat those submissions here. However, we are grateful for the opportunity briefly to address orally some assertions and criticisms made by other core participants in their written submissions. In particular, sir, I want to deal today with two issues, which we say are critical to any proper analysis of the evidence. First, the danger of conflating the perception of wrongdoing with its reality, and secondly, inaccuracy concerning the current work of the MPS to implement changes to its media relations, policy and practice. The written submissions of the core participant victims in relation to Module 2 of 28 May cover much of the same ground as our submissions. Like us, the CPVs make a distinction between the perception that there were corrupt or inappropriate relationships between the police and the press and the reality of such relationships. However, in our submission the CPVs have at numerous points conflated or confused the two. That, we submit, is both unhelpful and potentially dangerous. At paragraph 2 of their submissions, the CPVs say that: "Perception is as important as reality." With respect, that cannot be correct. A perception that senior officers are too close to journalists is indeed a source for concern. The MPS well recognises the damage that such a perception has caused and acknowledges the importance of ensuring that it doesn't arise in the future. However, had the Inquiry uncovered evidence of actual corruption of senior police officers or of inappropriate relationships with journalists actually causing different operational decisions to be made, it would, we submit, rightly be even more concerned about this than about the perception that some relationships were unduly close. Saying that, sir, is not to downplay the importance of perception. It simply recognises the obvious truth that actual corruption or relationships which actually affect police decision-making would be worse. To say that the perception of corruption and real corruption are equally important is simply not valid. The CPVs say perception is so important because perception that the police are corrupt can lead to a loss of public confidence in the police and a perception that the press can act with impunity, which can lead to a worsening behaviour by the press. We agree. The same point has been made by many witnesses to this Inquiry. However, asserting that there is widespread corruption in the police and that inappropriate relationships between police and press have compromised police independence when the evidence doesn't demonstrate that is unjust and simply serves to worsen the perception. In short, it creates the very problem that the CPVs are so keen to avoid. That, we submit with respect, is precisely what the CPVs have done on a number of occasions in their submissions. Having recognised the distinction between perception and reality, and, we say, wrongly asserted that perception is just as important, the CPVs then assert that a number of senior police officers did in fact become too close to reporters and failed as a consequence of that closeness fully to investigate or disclose evidence of media wrongdoing. In particular, they assert that in 2006, 2009 and 2010 close relationships with News International journalists and editors actually affected police decisions. In doing so, the CPVs are eliding the perception of police independence being compromised with the reality of such compromise. That's clear from phrases such as "independence or at least the appearance of independence was compromised", paragraph 32 of the CPVs' submission. They have conflated the two and asserted that because there may have been occasions when it appeared that certain senior police officers' independence was affected, it was in fact affected. That plainly doesn't follow.
LORD JUSTICE LEVESON
No, the question is whether it's an inference that can be drawn.
MR GARNHAM
Absolutely. Sir, you anticipate precisely the next clause of the sentence, which is: and there is nothing to support so serious an inference. The CPVs are not the only core participants to have conflated perception with reality. Guardian News and Media Limited have done the same in their Module 2 submissions. They assert at paragraph 10(1) that there was "cosiness between senior MPS officers and News International executives". At paragraph 12 they state that there is "real force in the view that an excessive close relationship developed between NI executives and senior police officers such as to materially influence the MPS response to the phone hacking investigation". But the evidence they point to, primarily the Filkin report, is about a perception of inappropriate relationships, not actual compromise of independence, and that flawed analysis, we submit, needs to be exposed. I'm going to concentrate for the main part in these short oral submissions on the core participant victims' submissions, as they're the most extensive, but the points could equally be made towards the Guardian's submissions. There are several points in the CPVs' submissions where the evidence referred to may justifiably be said to demonstrate a perception or appearance of unduly close relationships, but cannot be said to show that there was compromise of police independence in reality, yet the CPVs do assert such actual compromise. I deal with it by just three examples. At paragraph 48, the CPVs refer to a dinner hosted by the News of the World, which Andy Hayman and Dick Fedorcio attended on 25 April 2006. They note that this was at a crucial time in Operation Caryatid and assert that "the possibility of inappropriate conversation cannot be excluded". But in fact the timings suggest that such hospitality could have had no effect whatsoever on operational decisions. On 18 April, a few days before this dinner, DCS Phil Williams had sought and been given additional resources for Operation Caryatid. On 26 April, the day after the dinner, the decision was made to proceed with the investigation. Those actions are suggestive, we submit, of a robust, independent police force, not one whose independence was compromised.
LORD JUSTICE LEVESON
But could it ever have been sensible for the police for particularly a very, very senior ranking officer to have dinner with an organisation that one of his officers was then investigating?
MR GARNHAM
That, with respect, is a separate question. It may well be, sir I'm going to make no concession you will decide that it was not. But that is not and this is the critical point evidence of corruption in fact.
LORD JUSTICE LEVESON
No, I understand the point that you're making, but the trouble is that this is where perception does become extremely important. If, as was the event, that investigation was limited, no doubt for different reasons, it doesn't require a very suspicious mind to join the dots together.
MR GARNHAM
I absolutely agree and concede that, sir. Of course that's right. And the which of such a dinner happening at such a time is plainly something which can be the subject of comment. But it's a huge jump to say that you can proceed from that to a conclusion that in fact at that dinner they got around the table and said, "Tell you what, we'll just go through the motions". And that is, in our submission, at the root of the error of the analysis that's been put forward by some. The CPVs severely criticise DSC Williams for failing to widen the scope of Caryatid in 2006. They conclude at paragraph 82 that there remains in relation to DCS Williams a strong inference that he was fearful of the influence of the powerful media friends of his superiors. There is simply not the evidence to support such an inference. I will deal with these criticisms at little length because they're more extensive and haven't been specifically covered in our written submissions. In our submission, the Inquiry has heard compelling evidence from all the officers involved in the investigation about the overwhelming pressure on the MPS from the terrorist threat in 2006 and the absolute priority that had to be given to counter-terrorist operations. As Peter Clarke said in a memorable phrase: "Invasions of privacy are odious. They can be extraordinarily distressing and at times they can be illegal, but to put it bluntly: they don't kill you." The CPVs, in their analysis, skip lightly over this crucially important factor in a single sentence at paragraph 75. They say: "Be that as it may, it doesn't explain the reluctance of DC Williams to reveal the full extent and nature of the evidence to the CPS or pursue the agreed strategy of informing victims." We submit that that is wildly to underappreciate the nature and significance of the evidence about terrorist threats. There's no need to drive that point home, I suspect, sir. We deal with it in our written submissions and I'm not going to labour it. The Inquiry has heard no evidence that DCS Williams himself had any relationship with the media which could conceivably be perceived as overly close, let alone actually corrupt. Moreover, as the CPVs acknowledge, there is no evidence that he made any conscious decision to suppress evidence. Nonetheless, the CPVs feel able to assert, paragraph 76, that he would no doubt have been aware that his superiors in the MPS hierarchy enjoyed extremely close relationships with those he was investigating and therefore that it was: "Inevitable that the relationships between very senior MPS officers and the media exerted some influence on his decision-making." With respect, that's nonsense. First, there's no evidence to suggest that DCS Williams had any knowledge at all about the relationships between other officers and particular journalists at particular newspapers, and that point was never put to him. Second, that assertion assumes what it seeks to prove, that DCS Williams was making not just incorrect decisions, but decisions motivated by improper considerations. And third, it ignores the fact that DCS Williams's superior was Peter Clarke, an officer whom, as the Inquiry has repeatedly heard, is held in the highest regard by everyone who's ever worked with him. Even the CPVs accept that Mr Clarke did not accept much hospitality at all, and what he did accept was even-handed as to his relationship with the media. The CPVs make their inference about DCS Williams on the basis that he knew there was evidence of journalists other than Clive Goodman being involved but "misled" the CPS prosecuting counsel and AC Clarke by saying there was no such evidence. We've addressed that in our submissions and I just make three short points. First, CPS and counsel were plainly aware that the evidence implicated journalists other than Goodman because of counts 15 to 20. The CPS knew about the corner names. They had a copy of the Blue Book. Second, DCS Williams was working on the understanding that the evidential requirement to prove unlawful interception of voicemail was that it had to take place before it was accessed by the intended recipient. Now, sir, you may decide he was wrong about that. You may conclude that he was taking too narrow a view of the legal requirements to make out his case. But there is nothing to support a case that DCS Williams was there actively or intentionally misleading anyone.
LORD JUSTICE LEVESON
It's not just a question of my construction of the statute, is it? Because at the time charges were pursued on the basis of the wider view, and in any event, he, like any experienced detective, would well have understood the reach of the law of conspiracy.
MR GARNHAM
Absolutely, absolutely. But he was guided in the decisions he made and it may be he got it wrong. But he was guided by the advice he'd received. And it is an enormous jump, and one which we would suggest the Inquiry would not be justified in taking, between saying he got it wrong on these points and saying, as the core participant victims do, that he was misleading in some active sense anybody, whether counsel or CPS or his superiors. We say the evidence simply doesn't support such a conclusion. It is also, in our submission, significant that it became clear from DCS Williams's evidence that he was applying a restrictive view of what constituted evidence. He appears to have believed that he had to obtain concrete, forensically irresistible proof. His whole approach, it emerged, was that it wouldn't be sufficient to rely on inference, however powerful a lawyer might think the inference to be drawn was. He might be wrong about that, but the idea that he was actively misleading anyone is, in our submission, farfetched. The CPVs also base their inference about DCS Williams on the assumption that the MPS was in possession of all the evidence in 2006 necessary to realise that phone hacking was as extensive as it's turned out to be seen to be. But that, in our submission, is to fall into the obvious trap of viewing this through the wrong end of the telescope. It wholly fails to take into account the hugely time-consuming and resource-intensive nature of the work that would have been needed to be carried out in order properly to investigate these affairs. It is, in our submission, sufficient to look at the extent and nature of Operation Weeting to see the quantity of work involved. DAC Akers reminded the Inquiry this morning about the volume of material involved in some of these operations. The CPVs point to a failure to seek a production order against News International as a further reason to draw inferences against DCS Williams. We've made separate submissions on this issue in relation to Module 4. You have written evidence from the Deputy Commissioner on that topic, and we would respectfully refer you to that in this context.
LORD JUSTICE LEVESON
Yes. What he's saying is that actually it becomes almost impossible because merely to assert, "We'll co-operate", makes it extremely difficult to satisfy the engagement criteria for a production order.
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
Because you can't prove that they haven't co-operated. So the co-operation might be a fig-leaf for doing not very much, and there's nothing very much the police can do about it.
MR GARNHAM
It's seen as a self-justifying, self-fulfilling assertion when police are met with that sort of response.
LORD JUSTICE LEVESON
But on the other hand, of course, one has to be very careful to respect journalistic sources, for all the reasons that we've discussed during the course of the Inquiry.
MR GARNHAM
Absolutely. And that's the nature of the problem that we have sought to address in Deputy Commissioner Mackey's submission.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
But it suffices for present purposes to observe that the Operation Caryatid team found News International's lack of co-operation back in 2006 frustrating in the extreme. You'll remember in answer to a question from you this morning, sir, DAC Akers drew a sharp distinction between that level of co-operation and what she has received in more recent months. The criticism faced by the police when journalists are investigated or searched is apparent from Module 2, written submissions from the NUJ, which I'll come back to in a moment. But we say the CPVs' attack is undiscriminating when it fails to recognise that whatever criticisms might be made of the law relating to production orders in cases involving newspapers, DCS Williams and the rest of the Operation Caryatid team was having to work with the law as it was then, not as it might be at some future day. Finally, sir, the CPVs point to the failure of the strategy for informing potential victims as evidence from which inferences can be drawn against DCS Williams that his independence was compromised. Again, we say the scattergun nature of the CPVs' analysis is evident. The MPS has acknowledged that the victim strategy was not properly implemented. It's done so both in its submission to this Inquiry and in the judicial review proceedings, but the reasons for that were various: lack of resources, competing demands, failure to follow-up a process that was believed to be working properly. But there's no evidence that you've heard at any stage to suggest that it was fear of News International, whether on the part of DCS Williams or anyone else in the investigation team, which caused the failure of the victim strategy. We say that for the CPVs to assert to that effect is another example of conflating perception and reality. CPVs summarise their allegations at paragraph 108. They say that the failures in the investigation are so significant that an inference can be drawn that police officers deliberately sought to downplay the evidence out of fear of News International. Hindsight is a dangerous device in an Inquiry of this sort. Nowhere, we say, is it capable of greater mischief than here. No one concerned with this Inquiry can wholly exclude from their minds knowledge of the significance of the material which subsequent events have demonstrated. The potential significance of first names scribbled across the corner of a piece of paper is now patent, but it's a long way from providing a ground for criticising those who at the time regarded this not as evidence of complicity in wrongdoing by journalists but as no more than a potential lead, which with a great deal of further work might lead to evidence, which might justify the arrest of an as yet unidentified individual. Still less, we say, is it grounds for inferring that operational decisions were made because of fear of News International.
LORD JUSTICE LEVESON
But the police certainly had got to grips with the Mulcaire documentation, hadn't they?
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
Because they sought to interview I think it was Mr Mulcaire about these very topics, and also identified other names and the material which included PIN numbers and the like, which suggested, at any rate, that this was very much more extensive than that which eventually emerged as the prosecution case.
MR GARNHAM
They had begun to get to grips with it, I readily concede, and they had started to detect what that evidence might suggest, yes. But it's a long way from that to putting together a case that was sufficient to be taken to court.
LORD JUSTICE LEVESON
I understand that, but that's not the charge specifically. The charge might just as easily be, as I read the submission, that you never went further. And another example that might be given of that could be and I ask you to deal with it the failure to deal with the much enunciated "rogue journalist" theory, where certainly the police had the very gravest concerns, it seems to me, that this wasn't one rogue journalist, and yet I mean, normally, if the police fear that there may be other criminal conduct which they can't prove, I think the phrase is they "warn people as to their conduct".
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
Rather than caution them, because they can only caution somebody who admits it. Because it was nothing like that.
MR GARNHAM
Two points in the observations you've made, sir. As to the second, about the good sense of giving such a warning, that was addressed by senior officers, more recently-appointed senior officers, in answers to questions from you, and they agreed. Mr Peter Clarke agreed that although it would be difficult sometimes for him to go into the office of a managing director of a large organisation and read the riot act in the way you've suggested, there were occasions when that would be sensible, and I don't attempt to dissent from that.
LORD JUSTICE LEVESON
I can't immediately see that an officer as senior as Mr Clarke would have very much difficulty in making his views very clear to whomsoever he wished to make his views clear, however unhappy the response he might receive.
MR GARNHAM
I don't attempt to dissuade you from that view, sir. That was put perfectly fairly to Mr Clarke and he dealt with it. But what I do attempt to respond to is the suggestion that there is in that some evidence which founds an inference that DCS Williams was either cowardly in his approach to police officers [sic] or was positively corrupt. Those are huge jumps, which I say are simply not justified on the evidence. The final example of CPVs conflating perception and reality relates to the decisions in 2009 and 2010 not to reopen the phone hacking investigation. Paragraph 109 of the CPVs' submissions read: "Intentionally or not, the MPS supported and participated in a cover-up of the facts, which has led to suspicions of corruption." Sir, in our submission it may be valid to consider that the evidence surrounding 2009 and 2010 could give rise to a perception or suspicion of cosiness influencing decision-making, but it's simply not valid, I would submit, to assert that the MPS were involved in a cover-up, intentionally or otherwise. Indeed, I'm not entirely clear how one can unintentionally cover up anything, since the verb "cover-up" in this context necessarily involves some deliberate action.
LORD JUSTICE LEVESON
I think I agree with that.
MR GARNHAM
It's right to acknowledge that the decisions were probably taken too quickly and with a defensive mindset that may not have asked the right questions. That was conceded by Sir Paul Stephenson and by others subsequent to him, and we respectfully urge you to adopt that. But there is absolutely nothing by way of hard evidence which calls into question the integrity of John Yates when he made those decisions. There's nothing to show that he was in fact swayed in his decision-making by his friendship with Neil Wallis or his relationships with News International more generally. There's nothing to show that he deliberately misled the Select Committee, the DPP or the victims, and again we say that to confuse legitimate criticisms that can be made about perception with reality is wholly unwarranted.
LORD JUSTICE LEVESON
Mr Yates certainly didn't do himself any favours, did he?
MR GARNHAM
And fortunately that's not the case I'm having to make out, sir.
LORD JUSTICE LEVESON
No.
MR GARNHAM
We would urge you not to make the same mistake as the CPVs and others. Some of the evidence heard over the course of the last nine months could give rise to criticisms based on perception, but the evidence goes nowhere near to establishing that corruption or actual compromise of police independence occurred. And to slide from perception to fact is an easy move to make, but would not be remotely justifiable on the evidence you've heard.
LORD JUSTICE LEVESON
What about this, Mr Garnham and it may be that it doesn't take any matters any further, and I'm not saying that I've reached this conclusion, I say immediately. But in connection with the decision in 2009, could it be said certainly approached too defensively, but also approached on the basis that very senior officers knew and understood the leaders of this organisation, and because of their personal knowledge of them were therefore less prepared to think ill of what they had been doing?
MR GARNHAM
Sir, that's somewhere between the two stances
LORD JUSTICE LEVESON
That's why I asked you about it.
MR GARNHAM
I've identified. I understand that, sir. I would submit that even that would be going too far. You don't have the evidence even for that. But that is some way short of actual corruption or actual compromise of independence; and I say you can't go even that far on what you've heard, but plainly it is a gradation. It's instructive, we say, to observe that the very same factual context can be perceived from very different standpoints, depending on the observer. That's apparent from the NUJ's submissions on Module 2, which criticise the MPS for being "interfering" and "threatening" in its media relationship. And it does so over precisely the same period of time during which it's accused of being over-cosy by the CPVs. We submit we're trapped somewhat between a rock and a hard place in trying to get this right. On the one hand, we can be criticised by the NUJ for being draconian. On the other, we can be criticised for being overfriendly. That serves, we submit, to illustrate the difficult position the police are in when it comes to dealing with an investigation of the press, and in that circumstance it is, we would submit, remarkable that the Inquiry has heard such a substantial body of evidence that's been positive about the work of the MPS, about the relationship between the MPS and the press and about the work of the MPS and the press together. The second of my two issues, sir, you'll be glad to know, is much more straightforward and can be dealt with much more shortly. The Guardian has at paragraph 6 of their submissions suggested that the MPS has adopted the recommendations of the Filkin report, and they then go on to criticise some of those. It's simply not correct to say that the MPS has adopted the Filkin report's recommendations. As Commissioner Hogan-Howe explained, the MPS has accepted her findings and the broad thrust of her report, but needs to do more work on whether and how to implement the recommendations. The work is being done now and that's set out in our Module 2 submissions. There's an update on progress at annex 1 of our Module 3 submissions. We submit that the overall picture that's emerged in the course of your Inquiry is that relations between the press and the police, whilst not perfect, have been essentially sound. We recognise that there has been some legitimate grounds for criticism of MPS conduct, primarily regarding the public perception created by the actions of some of its officers. We submit that the MPS has demonstrated through the evidence of its current senior officers an intent to address and correct the errors that this Inquiry has exposed. We remain ready to listen to and learn from your conclusions, and we do so whether or not they happen to coincide with our own analysis.
LORD JUSTICE LEVESON
Mr Garnham, I'm very grateful for that, but could you help me with the present position of the ACPO responses, both to Sir Denis O'Connor's report and I think that also encompasses what Elizabeth Filkin had to say?
MR GARNHAM
The honest answer to your question is: No, I don't think I can. I don't act for ACPO, but I have lines of communication to ACPO and I would have to take instructions and respond to that
LORD JUSTICE LEVESON
I wasn't necessarily asking from an ACPO perspective. Presumably your clients know where they've got to in relation to the ACPO line.
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
I think it would be useful if you could just at some stage submit a very short note on it so that I know.
MR GARNHAM
I will do so, sir.
LORD JUSTICE LEVESON
Thank you very much indeed. Thank you. Right. It's not happened many times during the course of the last ten months, but in the light of the fact that we can't proceed further, we'll adjourn now until 2 o'clock. Thank you. (11.32 am)
