Tuesday, 7 September 2010

Two Puzzling Questions on MetGate

I am most puzzled by two aspects of the MetGate situation.

First, according to Assistant Commissioner John Yates, there were only to 10 to 12 cases which could be proved.

However, there were 91 unique (that is, not factory-set) PIN codes seized from Mulcaire on 8 August 2006. These PIN codes presumably mean interceptions or attempted interceptions had occurred.

Even before that raid, a Met internal document quoted by Nick Davies states:

"A vast number of unique voicemail numbers belonging to high-profile individuals (politicians, celebrities) have been identified as being accessed without authority. These may be the subject of a wider investigation in due course. A number of the targets of this unauthorised access have been informed."

The 10 to 12 cases are not easily reconcilable with the 91 figure or the "vast number".

Is there an explanation?

Second, it had been reported that Mulcaire is bound by a confidentiality agreement as part of a settlement with News International after he brought a claim for wrongful dismissal.

It appears the settlement amount was substantial.

This confidentiality obligation is the reason given for him not speaking on what happened.

However, it appears that Mulcaire was not actually an employee.

According to the invoices disclosed by John Prescott, Mulcaire contracted through a limited company.

It is thereby difficult to see how he was able to bring any claim in respect of his dismissal.

Nonetheless, the confidentiality provision which came about because of that threatened claim has more legal bite than it otherwise would have.

I wonder if there is any explanation why News International accepted such a compromise agreement in respect of a claim which appears to have been brought by an non-employee?

Perhaps the Home Office Select Committee, which has now announced an inquiry, can provide answers...


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Ian said...

However, it appears that Mulcaire was not actually an employee.
According to the invoices disclosed by John Prescott, Mulcaire contracted through a limited company.

I can't remember cases or statue on the matter offhand but there are circumstances where someone has
acted as an employee, despite remuneration being paid on one of the various basis used by the self-employed, that they are treated under the law as an employee. As well as employment rights it also applies to taxation and it's quite possible for the taxman to claim "employee's" unpaid tax from the "employer".

It's particularly common in media circles, who use a lot of freelance labour, for freelancers to drift into the role of an employee. I'm not suggesting that this is so in the case in point, but it's common nevertheless.

Nick Gordon said...

What exactly is the effect of any confidentiality agreement on wether or not Mulcaire provides information to the police about criminal activity?

I imagine a scenario in which I respond to police questions about the criminal activities of my employer or colleagues by saying "Sorry, but I signed a confidentiality agreement", and I don't see myself feeling all that protected.

Millar said...

It's true that a self employed person can drift into employment, certainly for tax purposes. But that cannot apply when the contract is with a limited company, which cannot be an employee. (HMRC get round this one in tax terms using the infamous IR35 legislation).

Niklas said...

I'm more interested in the first question: how could only 10-12 crimes have been committed when Mulcaire had 91 secret voicemail PINs?

Is it illegal in itself to obtain a PIN without the permission of the owner? Or do you have to do something illegal with that PIN (e.g. listen to someone's voicemail or take out cash from their bank account) for it to become an offence?

Nick Gordon said...

@Niklas It's not necessarily illegal to have obtained someone else's PIN - it depends how you do it. If they gace it to you, or left it lying around in plain sight for exampe, you'd have broken no law. If you obtain it by deception, you're probably guilty of something.

However, having a large file of other people's PINs is certainly grounds for suspecting that something illegal might be or have been going on

Andrew said...

Judgments in cases such as Dacas in 2004 and Muscat in 2006 demonstrate that an employment relationship can arise where a person's services are procured through an employment agency or their personal services company. Decisions since 2007 have retrenched a little, limiting the implication of an employment relationship to situations where it is necessary to explain the facts, but Mulcaire's compromise agreement could have been signed during the period when there was an expectation that the caselaw would develop to impose employment status in a wider range of circumstances.

There may be other explanations, of course.

English Pensioner said...

Personally, I cannot envisage how the editor, Andy Coulson, didn't know what was going on in spite of his denials.
When I was working (as a professional engineer), I would keep an eye on how my staff were doing their work and when they returned from a job, I'd invariably ask how it went.
I just can't envisage an editor, when someone comes to him with a scoop, not saying something like "This is a great story, how did you manage to find it out". It would be human curiosity if nothing else.
If he didn't have some idea about what was happening, surely he is a very poor manager and shouldn't be on David Cameron's team.

Nile said...

Would our learned host care to clarify the legal position of an employee - or any person - who signs a confidentiality agreement having the effect of binding them to silence about an illegal act?

If a departing employee who signs a compromise agreement that includes a confidentiality clause is subsequently summonsed and compelled to testify in court, can their former employer claw back the severence payment?

Would that employer be at risk of prosecution for conspiring to pervert the course of justice if the confidentiality clause was mentioned in conversation to that employee - no matter casually - in the run-up to a trial? Or, indeed, at any time if it was clear to both parties that a criminal offence had been committed?

Somehow, I have fallen into cynicism and a pessimistic outlook in which the departing employee is forced to testify against his former employer, prosecuted and convicted for his own part in the criminal offence and jailed, and sees his emoyer get off with a fine, or nothing... And then discovers that he's pursued for repayment of the severance and bankrupted by an order for the costs from his employer?