Today I belatedly came across a tweet by Jon Baines (@bainesy1969) on the subject of the Op Motorman evidence being presented at the Leveson Inquiry:
Op Motorman, in my mind, is key to the unravelling of the whole phone hacking scandal, and I was fascinated to hear Alex Owens’ evidence to the inquiry. It is clear Owens feels let down by his former bosses at the Information Commissioner’s Office (ICO). He claims he wanted to pursue the journalists requesting information from Steve Whittamore et al, and the answer, from above, was a clear 'No'.
On Wednesday 30 November Owens described the Deputy Commissioner at the time, Francis Aldhouse, as saying of the media “We can't take them on, they're too big for us”, a claim roundly denied by Aldhouse on Monday. Perhaps the evidence of the former commissioner Richard Thomas on Friday will shed some light.
Regardless of what Aldhouse did or didn’t say, the fact remains that no journalists were interviewed, let alone prosecuted. If it wasn’t out of fear, then why?
In a blogpost back in October, Tim Turner (@tim2040) highlighted a possible answer in an article he’d read in The Independent.
The article was written by David Smith, the current Deputy Commissioner at the ICO. In it, he clearly distances the organisation from any fear of the press. Instead, he says that “expert legal advice” led to the decision not to pursue journalists:
Any suggestion that the decision not to pursue prosecutions against journalists was driven by a fear of the press is entirely false. We exposed the involvement of the press in the first place. Our decision was based on expert legal advice that pursuing prosecutions would not be in the public interest, because of the difficulty in proving beyond all reasonable doubt that the journalists who received information from Mr Whittamore knew it could only be obtained illegally.
Tim Turner then did something I’d never have thought to do, and even if I had thought of it, would have given a snowball-in-hell’s chance of working: he asked the ICO for a copy of the legal advice. To be precise, he submitted a Freedom of Information request for the advice. Anticipating some of the defences the ICO might throw up, the request was carefully worded to counter these, and astonishingly the ICO responded. Here’s what they said:
In response to your request, we do not hold recorded information in relation to this request. We do not hold a written legal advice in relation to the decision not to prosecute the journalists involved in Operation Motorman
Please do read Tim’s blogpost for the full context of this reply; there doesn’t seem to be any doubt that the ICO is specifically referring to the “expert legal advice” David Smith writes about in The Independent.
So now we have a strange thing.
According to my reading (and I’m no lawyer) of the transcripts of evidence given to the Leveson Inquiry, it seems clear that there is indeed ‘recorded information’ and ‘written legal advice’ in relation to the Op Motorman counsel.
First, from Alex Owens’ evidence given on Monday, the Inquiry appears to have attendance notes of a meeting on 3 October 2003 in Birmingham:
Q - Mr Owens, do you recall going to see counsel in Birmingham on 3 October?
A - I did, yes. Down in Birmingham, yes.
Q - We have an attendance note of that conference.
[The transcript is available in full at the Leveson Inquiry website - this link will take you to a text file of the relevant hearing]
There then follows a description of what appears to be a report that Owens prepared for the counsel to advise on, detailing the practices his investigation uncovered. Then Mr Jay appears to read from a record of counsel’s advice:
Q - We can look then under the heading "Gunning". We can see further information in relation to area searches, but let's look at what counsel advised under his name with regard to the prosecution of the press. This is what he said:
"Although there is evidence to support a prosecution, a prosecution would not be considered favourable because of the financial aspect."
A - Yes.
Q - Put in other terms, what was he saying there?
A - Basically said it would be too expensive.
In order for Jay to quote from it eight years later, it seems to me there must be a written record of counsel’s advice.
The only way I can harmonise this with the ICO’s response to Tim Turner’s FOI request is that the Leveson Inquiry obtained the attendance note from a source other than the ICO, for example the barrister. Then the ICO could stand by its claim that “we do not hold recorded information in relation to this request”.
However, there is a second example:
Q - I'm going to ask you, please, to look at counsel's written advice, which is under tab 4, which privilege has been waived by the ICO. It bears the number 48716.
A - Yes.
Q - This is advice that counsel gave, I think, on 22 December 2003, which was now nine months after the research, wasn't it, Mr Owens?
A - December would be nine months, yes.
LORD JUSTICE LEVESON - So just let's understand this. This is a barrister who has been instructed by solicitors acting for the Information Commissioner to advise on the material that you've obtained in relation to a potential prosecution?
A - Yes, sir.
Jay then proceeds to take Owens through what is evidently at least two pages of written legal advice. From Lord Justice Leveson’s interjection, it is clear the advice is specifically relevant to Operation Motorman. On this occasion, reference is made to the ICO waiving legal privilege so that the Inquiry could use it. It seems unlikely that they would waive privilege on something they don’t even have a copy of.
Later, during Francis Aldhouse’s testimony the same morning, reference is made to a further meeting with counsel on 27 May 2005, after Steve Whittamore’s conviction.
The idea that the ICO, of all organisations, didn’t make any record of counsel’s advice from numerous meetings on the most important investigation they had undertaken, is ludicrous.
Tim writes that he has sent a follow‑up request to the ICO to clarify whether there were records, that are now lost or destroyed, or there really never were records. I, for one, am very interested to hear the reply, and to hearing Richard Thomas’ evidence on Friday.
UPDATE, Friday 9th December
Richard Thomas has now given evidence to the Inquiry. At length. I was unable to hear the live session, so will be playing catch-up over the weekend.
I did, however, come across something of relevance in Thomas' sixth(!) statement to the Inquiry (PDF), dated 6th December, i.e. following the appearances of Francis Aldhouse and Alex Owens.
In it, Thomas claims to have seen a "bundle of legal and related papers which were sent by the ICO to the Inquiry on 22 November 2011 (MOD100048708 to MOD100048827)."
He then refers to the attendance note of the meeting with counsel on 3rd October 2003 as being among these notes:
That S[enior] M[anagement] G[roup] meeting almost certainly took place soon after the conference with counsel which I now know took place on 3rd October. It is worth highlighting that the Attendance Note records Bernard Thorogood advising (MOD100048711) “With regard to prosecution of the press. Although there is evidence to support a prosecution, a prosecution would not be considered favourable because of the financial aspect.” The note later records “The Met have a second phase in their minds which may involve prosecuting of reporters. This would be solely in relation to the criminal record checks.” (MOD100048712)
Thomas also refers to an attendance note of a further meeting with counsel on 20th October 2003, though he doesn't mention the 'MOD' reference number:
The next written record is the Attendance note made by Karen Nolan of her discussion with counsel on 20th October. Bernard Thorogood is recorded as advising “Prosecution of the Press – the scale of the case requires substantial manpower. Several cases and the cost would be excessive both to investigate and prosecute. It would have to be that there was a good purpose to be served in prosecuting the Press.”
It is hard to escape the conclusion that the ICO did indeed retain records of advice related to the decision not to prosecute journalists implicated by Op Motorman. The ICO's response to Tim Turner's follow-up request for clarification could be very interesting indeed.