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Wednesday, 29 September 2010

Guest Post: John Dixon on Scientology

I am delighted to host a guest blogpost by Councillor John Dixon. The background to the complaint made against him by a scientologist is here. The complaint against him was dismissed yesterday.



I know the first part of this is going to sound a bit like an Oscar acceptance speech, but there are some people that I just have to thank before I start.

Bel (or Mrs D) has been through this with me since the start. She's an intensely private person, who hates my being in the public eye, but puts up with it anyway. All this attention has been a bit wearing for her, and required some very delicate cooking on my part to win her round again.

David Allen Green, aka Jack of Kent - prior to his taking an interest, it just was me trying to convince Bel that this was a ridiculous case, and assuring her that it would all work out. Afterwards, all of a sudden, I had a lot of other people saying the same thing, which made life a touch easier.

Believe it or not, the councillors in Cardiff Council too - to a man and woman, they've been supportive. This has been an issue beyond party political boundaries. During the whole time, not one of them has tried to gain any short-term advantage, although there have been a few wry comments in debates. It'll probably halve my number of followers, but I think the vast majority of councillors in the UK are decent people who've made the choice to stand up and do something about the problems they perceive, rather than just sit in a pub and complain.

You could see that yesterday. It was pretty obvious that the members of Cardiff's Standards and Ethics Committee wanted to get rid of the complaint at the first opportunity they had, having been required to investigate by the Public Services Ombudsman for Wales.

They agreed with me that, irrespective of my Twitter handle at the time, it was clear to any but the most cynical, that the context of the messages made it evident that I was writing the posts in question in a private, rather than official capacity, so the Code of Conduct did not apply. At that point, there was no further case to answer.

Now, I have to admit that part of me a little sad. I would have enjoyed my day in court, and I would have liked the opportunity to test the Ombudsman's judgement (which you can read in full here).

Even the one member of Standards and Ethics who spoke against dropping the complaint there and then did so only because they wanted to hear the evidence in more detail.

Having being accused of religious bigotry, I would have liked the chance to defend myself. To be honest, I wanted to know on what grounds the Ombudsman can say that I both don't understand the Code of Conduct, and why they felt the need to 'note' that I showed no remorse for my actions.

Given my responsibility for social services in Cardiff, providing services for the most vulnerable people in the city, I wanted to explore why, given the history of the 'Church' I was expected to apologise to an organisation with a long history of court judgments detailing family breakup, and also of the mistreatment of people with mental illnesses and complex developmental disorders.

I'd rate myself as a fair bar-room lawyer, and a pretty decent speaker, and I've watched Twelve Angry Men, and every episode of Rumpole of the Bailey. So that part of me feels as though these things will never now get said, or recorded as part of the canon of Code of Conduct cases, so they can never apply in similar cases in future. All that happened yesterday was to decide that a councillor doesn't act as a councillor 24/7/365, and that we're entitled to express views in a private capacity.

But I can't blame Standards and Ethics - ultimately it was the right decision to drop the complaint, even if I would have preferred the result to have had more of an effect on the wider system. None of them really wanted to be dealing with this case, or could even understand how a complaint so trivial could have made it so far through the system.

Of course, Paul Chambers has probably been thinking the same thing for a while too.

Both of us are guilty of no more than a darkish sense of humour and a compulsive desire to share an ephemeral thought.

But compared to him, I've been lucky - I've not been arrested, charged, and convicted, I've not lost my job, I've not had my career destroyed, there have been no calls for me to stand down as an executive member, or as a councillor. For me, bar the odd fraught conversation at home and random applause at occasional meetings, my life has been pretty much as per usual.

I'm embarrassed to be referred to as a 'hero' - like Paul, I stumbled unwittingly into this situation, rather than chose a battle to fight, but if anything he's the one who's responded heroically.

He's the one who deserves your admiration for the way he's conducted himself under extraordinarily trying circumstances.

All I did was not say 'sorry' when I was asked to on Newsnight, which seems so trivial by comparison. As I tweeted last night, if you haven't done so already - actually, even if you have done so already - take a moment now to go and contribute to the Twitter Joke Trial Fund. I'll still be here when you get back.

An unexpected side effect has been my rapid elevation to 'skeptical heavyweight'. Probably the most enjoyable part of my experiences this year has been to provide a bit of help and advice to Rhys Morgan in his campaign against the pushers of 'Miracle Mineral Solution' - an industrial bleach that AltMed advocates claimed would cure his Crohn's Syndrome, as well as any of the near endless list of conditions, like HIV, malaria, influenza, cancer, asthma, bronchitis, emphysema, multiple sclerosis, he might have had.

Thanks to him, the UK Food Standards Agency, has issued warnings, as has the health ministry of the Kenyan government is aware that this snake oil is being peddled. As I've said to him, saving hundreds if not thousands of lives in Africa is not a bad thing to have ticked off your list of things to do before you're 16.

Another opportunity has arisen to reform the regulation of local councillors. It's maybe not as sexy or important as libel reform, but as David Allen Green accurately summarised "we seem in the United Kingdom to be in the counter-intuitive position that our locally-elected representatives have a narrower right to free expression than either their voters or Members of Parliament." Or Welsh Assembly Members, Members of the Scottish Parliament, Members of the Legislative Assembly or Members of the European Parliament.

That can't be right. Don't get me wrong, the Code of Conduct is a set of values that I signed enthusiastically, and aspire to daily. But the Ombudsman's judgement and its literal interpretation of my duty of respect puts no limits on that duty, so it's an absolute one. That means the logical conclusion is that I must respect the Klu Klux Klan or Al-Qaeda. The judgment does allow that I should not be restricted from challenging those views, but that I must do so respectfully.

So that's another thing that I'm going to be taking up in Wales, across political parties at a pretty high level - the future role of the office of the Ombudsman. I suspect that, come the Welsh Assembly election next year, we'll be seeing a common position on the need for reform in the manifestoes.

However, the main result of all of this has been an increased focus on the activities of the 'Church' of Scientology, and that brings me to last night's Panorama. Ooh I should be on telly with a seamless segue like that.

The original, "Scientology and me", from 2007 was part of my required watching as I was preparing for my hearing, along with the archive here so I was looking forward to the follow-up. If things hadn't gone my way earlier, I was hoping for ideas for my defence at least.

First I have to say I think it was brave of John Sweeney to return to the subject, given the hell he was put through in the first documentary.

To me, it felt like the documentary he wanted to be able to make the first time around. Following Twitter at the same time, I saw plenty of comments from people feeling disappointed, and wanting new information and, if truth be said, I was feeling the same.

For a start I would have liked to see the background to their recent history in France - Aude-Claire Malton's case and the fraud trial last year, Alain Stoffen's book "Voyage To The Heart Of Scientology", how Martine Boublil was treated for her mental illness, and the death of Gloria Lopez. And that's just in France, so there's plenty of new material that could have been used.

But we need to remember that, outside our own echo chamber, in a world obsessed with the superficial, where superstar Scientologists enthusiastically talk up the 'Church', John Sweeney needed to re-establish a bit of credibility over the evidence he's providing following his 2007 outburst. The wider world probably has only what I had before Mr Wood's complaint last December - no more than a feeling that something isn't quite right with it.

I think "The Secrets of Scientology" went a long way to strengthening the foundations for concern in wider society. We now know that he wasn't paranoid in 2007 - I think most of us thought he was right to suspect he was being followed constantly, but Mike Rinder confirmed how they operate against their critics.

Mike Rinder explained how, rather than discuss and debate any issues of concern raised, they provoke and search for emotional buttons to press. How they harass and intimidate - evidenced by their performance at the hospital while he was waiting for the birth of his child, unwittingly recorded by John Sweeney who he was on the phone to at the time. How they use records collected in confidence against their former members.

All of this, and more, showed how they react in a way that no reputable organisation, never mind one that purports to be a religious one, would do. But then they do retain Carter-Ruck as their lawyers in the UK - please feel free to draw your own conclusions.

If things are to change in the UK, then that evidence base has to be firmly established in the public mind. Politicians do need convincing too. This will only be one of a huge number of subjects that people expect them to be both expert and passionate about, so for it to be more than just the issue du jour there needs to be both solid evidence of harm, and a sustained, widespread opinion that action needs to be taken.

I'd have preferred this to be at least a three-part mini-series, so that John Sweeney could have the time to really get into his subject. If you've got to spend time establishing the history of the 2007 documentary, and showing how you'd been manipulated into your outburst with the help of one of the then protagonists, an hour goes by pretty fast.

I can only hope that the BBC has the conviction to go deeper and further in future documentaries. I also hope they can find a someone who can put a soundtrack together that doesn't sound like they're plundering every audio cliche available. It'd also be nice if #stupidscientology could again surge to the top of the trending topics - that always fills me with a warm glow, and I know it makes David dance a little jig of excitement. Plus, I have it on good authority that every time it's used on Twitter, a body Thetan dies.

But this Panorama was another step, and a useful one - more confident and assured than 2007, and more convincing as a result. It's reminded me we can't stop, whether the issue is about free speech, or skepticism, or the 'Church' being "corrupt, sinister and dangerous" in the immortal words of Mr Justice Latey. Because, to borrow from my own meme, and as Gloria Lopez and many others have found, there's a lot worse than stupid that can rub off if you don't hurry past.


COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Sunday, 26 September 2010

The Appeal of Paul Chambers


The first part of the appeal of Paul Chambers was heard by Doncaster Crown Court on Friday 24 September 2010.

It had been hoped that a decision could have been made on the day, but that turned out not to be possible, and so the case will be concluded on a day yet to be decided.

This blogpost includes a fair and accurate account of what was heard in court on Friday.

However, I do need to declare an interest. I am now formally one of Paul's legal representatives. And, as a solicitor, I am an "officer of the court" owing duties to the court in an ongoing case. For these reasons I am therefore not in a position to blog about this case as if I were - say - just sitting in the public gallery or on the press bench.


Chronology

Based on both the evidence heard at court and statements in the public domain, the following sequence of events in this case can now be established.


6th January 2010
Paul uses the Twitter website to create and send a message to his followers:

“Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!”


11th January 2010
The tweet is found in a search of the Twitter website by the Airport Duty Manager (ADM).

The court heard on Friday that the ADM did not and does not have a Twitter account and was searching Twitter for Robin Hood Airport (RHA) on Twitter whilst off duty. The reason for this search was not security-related but because he had heard that RHA had a Twitter account and he wanted to see what it looked like. He was thereby not searching for threats nor expecting to see one.

When Paul's tweet came up as a search result, the ADM did not know whether it was a joke or not. And in his short witness statement he twice mentions the word "jest". In any case, it was not for the ADM to assess the risk, if any, of what he had found and so he alerted his more senior colleague who was responsible for making such an assessment. He copies the tweet into an email and sends it to the Station Manager (SM).

The SM reviews the tweet and grades it as a "non-credible threat". However, it is passed on to the Special Branch stationed at the airport.

In his evidence before the court, the ADM confirms that the tweet did not have any operational impact on RHA.


13 January 2010 (afternoon)
Some two days after the tweet is referred to the police at the airport, the police at Doncaster Police station are informed (presumably by the Special Branch stationed at the airport). Paul's barrister Stephen Ferguson emphasised in court this two day delay as evidencing the complete lack of menace felt by those first dealing with the matter.

Two officers from Doncaster Police station attend Paul's workplace and arrest him "on suspicion of making a bomb threat against Robin Hood Airport" (that is under the 1977 bomb hoax offence). His telephone, keys, and a Tesco Club Card are seized.

Paul is taken to Doncaster police station for questioning.

Later that afternoon, police make their first printout of Paul's tweets for the relevant period. It is not clear whether the print-off use UK or US timings, and no print-offs are made of other Twitter accounts which would contextualise the exchanges relevant to Paul's original tweet.

Paul is then interviewed by two Detective Constables (but not those who arrested him). It appears these are specialised police officers. Paul is questioned for over two hours (with a break). Paul consistently denies any wrongful intent and repeatedly explains that the tweet was merely a joke.

The police appear to accept Paul's account. The police case file states:

"There is no evidence at this stage that this is anything other than a foolish comment posted on Twitter as a joke for only his close friends to see."

For some reason, the CPS did not disclose this file note at the original trial and it was only disclosed to the defence for the appeal on 23rd August 2010.


So, as Stephen Ferguson told Doncaster Crown Court, it appears that the person who found the tweet did not know whether it was a joke or not but was duty bound to refer it to the person whose job it was to evaluate it; the person who evaluated it rated it as not having any credibility but passed it on to airport police as he did with all such evaluated material; there is a delay of two days; and then police on investigation of the matter, and after interviewing Paul, said they had no evidence that it was anything other than a joke meant for only his close friends to see.

After his police interview, Paul is released on bail to attend Doncaster Police Station on 11th February 2010.

In a later statement, the police's press office explain why and how the matter is transferred to the CPS (however, please note these press office statements were not mentioned in court, and not part of the defence or prosecution, but are public domain statements set out in my article here):

“The Force take such misuse of these sites seriously and will take robust action to deal with those who choose to use them in such a way as to cause unnecessary alarm and distress to members of the public.


“There was huge public and media interest in this case. Whilst the investigation and collation of evidence was straightforward, due to the wide-spread interest in the use of Twitter in this way, the case was referred to CPS to make the decision on disposal. Based on this “public interest test” it was not appropriate for police to make this decision.

“The CPS themselves could have decided on a caution, but based on the evidence and the public interest they decided to charge in this case, a decision that the police feel is appropriate.”



So at some date before 11th February 2010 the CPS decide to charge Paul Chambers under section 127 of the Communications Act 2003 (and not the bomb hoax offence for which Paul was originally arrested). In statements again provided for my article here (again this is not evidence in the appeal, but public domain statements), the CPS press office stated:

“While Mr Chambers may have meant this as a joke, the airport could not risk treating it as such. The threat had to be taken seriously by the airport authorities, who contacted the police. It caused unnecessary disruption because of a menacing communication.


“The police and the CPS, in the current climate, take any hoaxes very seriously. In the wake of the 7/7 bombings in London, for example, there were a number of bomb hoax cases around the country which resulted in prosecutions under various acts, mainly the Criminal Law Act or the Public Order Act.

“Section 127 of the Communications Act 2003 was considered to be the correct charge in the particular circumstances of the case. Under 127(1) an offence is committed where suspect sends by means of a public electronic telecommunications system a message or other matter that is “grossly offensive, or of an indecent obscene or menacing character”. A message can be any of these (rather than having to be all of them) and the message in this case was clearly of a menacing character.

“A more serious charge under section 51 Criminal Law Act 1977 was considered but was not felt to be appropriate as there was no evidence that he intended to induce in the recipient a false belief there really was a bomb.”



11th February 2010
Paul attends Doncaster Police Station, where he is charged with an offence under section 127 of the Communications Act 2003. He is then bailed to attend Doncaster Magistrates' Court on 19th February 2010.


19th February 2010
Paul pleads guilty after the CPS (wrongly) tell the court and the defence that section 127 is a strict liability offence. The case is adjourned for sentencing.


2nd March 2010
I publish my Lawyer article here criticising the decision to use the section 127 offence. In particular, I am highly critical of the CPS decision to try and prosecute the section 127 offence as a "strict liability" offence, not requiring proof of wrongful intention. (My day job is as a media and communications act lawyer and so I was luckily able to spot from the press reports that the CPS had used the section 127 offence and this immediately troubled me.)

As consequence of my article, Paul seeks to change his plea from guilty to not guilty. He can do this as he had not at this point been sentenced.


12th March 2010
Paul instructs new solicitors, and the court is told that he is now seeking to vacate his plea. The case is adjourned.


15th March 2010
The Magistrates' Court accepts Paul's application to vacate his plea (see here and here).


10th May 2010
The case is reheard. The CPS again try to prosecute the case as not requiring proof of intent, but submit there would be sufficient proof of intent in any case.

Paul is found guilty by the District Judge. The judgment is here and the sentencing decision is here.

Paul then decides to appeal and invites me to co-ordinate his defence. I ask Stephen Ferguson, one of the UK's most sought-after defence barristers, if he would be willing to help. Stephen and I then start working on the defence, along with with Paul's criminal solicitor Richard Haigh.


23rd August 2010
The CPS disclose to the defence the police assessment of the evidence.


24th September 2010
The appeal begins at Doncaster Crown Court before a circuit judge and two lay magistrates. The CPS concede that section 127 is not a strict liability offence and that they do need to show wrongful intention.

After the prosecution case concludes, Stephen Ferguson makes a "half time submission" that the CPS has not made out a case for the defence to answer.

The case is then adjourned for the court to consider the defence application. Because the bench includes two lay (that is, not full-time professional) magistrates, the date on which the case will resume may not be until October/November.


The defence case

The basis of the defence case has three parts: that the message was not of a menacing character (ie, there is no "actus reus" in legal jargon), that it was not sent with the intention of communicating a message with a menacing character (ie, no "mens rea"), and that it was not a message anyway covered by section 127 of the Communications Act 2003.


Actus Reus

The defence submitted that, regardless of intent, that the message was simply not of a menacing character.

It was not menacing on its own terms: it was self-evidently facetious and hyperbolic; it was not addressed or sent to RHA; it used exclamation marks and was in jokey, parody language. Indeed, on its own terms, it was no more threatening than Sir John Betjeman's famous line calling for the bombing of Slough.

This lack of menacing character is confirmed as one looks at all the surrounding circumstances: it was sent only to the 600 or so followers who had chosen to receive tweets of this nature; it was in the context of tweet exchanges about Paul seeking to visit a new girlfriend and so was in course of a bantering exchange of which the followers would be aware; and there is no evidence that any of Paul's followers interpreted it as having any menacing character.

Furthermore, even the ADM who found the tweet accepted that it could have just been a jest; the SM rated it as having no credibility as a threat; and the police accepted it was a joke meant only for friends.

So regardless of intent, the defence submitted that the prosecution has not shown that the tweet had the "menacing character" to begin with.


Mens Rea

The defence also submitted that Paul did not have any intent to send a menacing message.

In his police interviews he consistently explained it was intended only for his followers. His tweet named the airport which had closed as a result of snow, but it was not directed at the airport nor was there any reason to believe the airport or any other person would regard his tweet as anything other than a joke.

The CPS seem to accept that it was not directed at the airport.

If so, the remaining issue as to mens rea is whether the risk that someone would be menaced “must have been recognised by the sender” (the relevant legal test).

It was submitted by the defence that the extensive interviews (two separate interviews lasting an hour and eleven minutes in total) clearly demonstrate that Paul had no foresight whatsoever of any such risk.

Here, the defence state that Paul began his police interview with a lengthy voluntary statement without any intervention from his solicitor in which he stated:

“…now not for one second did I, you know it was meant as a joke…. within the context of my Tweet it was actually kind of humour, I mean looking back it’s daft now, but that’s you know my kind of dry humour… I didn’t realise, not for one second did I think that anyone would even look at it… it’s just a jokey comment made off the back of the frustration that the flight’s been grounded… like I say not for one second did I ever think that Robin Hood Airport themselves would ever be looking and ever take it seriously because that is, that was not the intention at all…”

Paul made similar comments throughout the two interviews. It was submitted by the defence that it is quite plain that the appellant made the comment as a joke and did not think for a moment that anyone would be menaced by it. It is important here to note that the legal test is that the risk “must have been recognised by the sender”, not should have been recognised.

It is a subjective test, and it is submitted that the test is not met by the evidence in this case.


Section 127

Finally, on a technical point, the defence submit that the message was not one sent by means of a public electronic communications network in view of the definition of "public electronic communications network" used by the House of Lords.


The next step

When the hearing is resumed, it is likely that the court will give its decision on the defence "half time" application to strike out the case.

If that application is unsuccessful, the defence will then present its case, including calling Paul to be examined. Paul would then be cross-examined by the prosecution. The hearing should not last more than another day, though any judgment might then be reserved.


COMMENTS MODERATION

As this is a live case, it may well be that I will not publish comments which I see as inappropriate at this stage.

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Saturday, 18 September 2010

Why the Paul Chambers case matters


This week will see the appeal by Paul Chambers of his conviction under section 127 of the Communications Act 2003.

He was convicted - and so given a criminal record - for what was, and what was intended to be, a joke contained in a tweet.


(By way of background, see my posts here, here, and here.)


The appeal takes place on Friday at Doncaster Crown Court; the time estimate is one day.

In one way, this is not a significant case at all: just another appeal from the Magistrates' Court by just another defendant, and indeed the formal penalty - a fine and costs totalling £1000 - is not anywhere near a custodial sentence, but is instead at the lower end of what the English criminal justice system can impose.


However, it is one of the most significant cases of our times, and it is significant on three levels.


First, there is the horrifying lack of common sense or proportion shown by any of those who dealt with the matter.

The original tweet sent by Paul Chambers was clearly a joke and was sent only to his Twitter followers. For anyone else to see it would require directed effort.

It came up on what seemed to be a deliberate internet search by an employee of Robin Hood Airport.

He noted it was a "non-credible" threat.

But it seems "process" required he pass it onto South Yorkshire police anyway.

Then the police are breathtakingly gormless.

They send several anti-terrorist officers around to Paul's workplace.

(Unsurprisingly, Paul loses his job very soon after.)

The police arrest Paul and keep him in custody for a number of hours.

However, it appears that even the police do not think this is a serious matter.

But again "process" means it needs to be taken further. And so the case is referred to the Crown Prosecution Service (CPS).

The CPS realise quickly that there is no evidence for Paul to be prosecuted under the bomb hoax legislation.

(I set out what happened at the CPS here and here.)

The case could then have been dropped. Perhaps someone could have had a quiet word with Paul.

But the CPS decide to prosecute Paul anyway and dig-up an obscure offence intended for a quite different purpose to do so.

And so they prosecute Paul at the Magistrates' Court, wrongly telling themselves, the court and the defence that the offence does not require proof of wrongful intention.

On that basis, Paul pleads guilty.


At no stage in this story does any person who knew better - either at airport security, the police, or the CPS - act in a sensible and responsible manner.

None of these people believe this is a serious matter - the airport security judge it "non-credible", the police seem to eventually accept it was not a significant issue, the CPS know it is not a bomb hoax - but Paul is to be prosecuted anyway, just because no person can be bothered to stop an illiberal process which would give a blameless man a criminal record.


It was at this point I got involved.

My day job is as a media and communications lawyer, and in the news reports of Paul's guilty plea I was shocked to see the wording of the Communications Act. At a stroke I realised that there had been an injustice.

I wrote in The Lawyer that there seemed to have been a miscarriage of justice.

This article led directly to Paul changing his plea (which he was able to to do because he had not yet been sentenced).

The CPS would be required to show proof of intent, which of course they could not.

I then just expected Paul to be acquitted.

And so it seemed did everyone else, including (I understand) the prosecution.


However, the District Judge in a judgment which simply defies credibility (and which is, in my view, a disgraceful decision) purported to find sufficient intent.

Paul was found to be guilty.

Paul now had a criminal record.

The hapless decisions of airport security, the police, and the CPS had now been complemented by an illiberal and incorrect application of the law by a judge who should have known better.

This is not how our criminal justice system should be working.


The second significant feature of this case is how the law in question was used by the CPS.

It may seem a technical legal point; but the importance of this aspect should not be underestimated. The implications of the CPS position are highly concerning.

The prosecutors of a section 127 offence need to show that an appropriate action occurred (the actus reus, in legal jargon) and that the defendant had a wrongful intention in doing this action (mens rea).

Paul's tweet was not menacing - there is no actus reus. And he had no intention of sending a menacing communication - so there was also no mens rea.

Of course, one could take a different view to mine as to whether actus reus was made out.

But it is misconceived to say that there was any wrongful intention.


However, the CPS regard the section 127 offfence as not needing any intention WHATSOEVER.

The CPS regard section 127 as a "strict liability" offence, which means they do not believe they have to provide any evidence at all of intention before they decide to prosecute someone.

Once the CPS have decided that there is evidence of menacing communication, that is enough for them to launch a prosecution.

And once the CPS prosecutes a strict liability offence then someone gets a criminal record, unless the judge intervenes.

The breadth of what constitutes a communication under section 127 is immense: emails, website content, telephone calls, texts, and so on.

If the CPS decide the content of the communication is "menacing" (or grossly offensive, indecent, or obscene) then you are open to them seeking to give you a criminal record, regardless of your intention.

Just setting out Paul's tweet on a website, as I will do again now, would be enough for them to prosecute:

"Crap! Robin Hood Airport is closed. You've got a week... otherwise I'm blowing the airport sky high!"


It matters not to the CPS that I am quoting this with the intention of discussing a legal issue of public concern; my intention is irrelevant.

The CPS position would be that I am just as guilty as Paul; that I deserve to face prosecution; and that I too deserve a criminal record and my life ruined.

The CPS believe that intention is irrelevant with a section 127 offence.


This cannot be correct.

And it is indeed not correct; the House of Lords in Collins decided that the "offensive" alternative of the offence requires evidence of intention; and this carries over to the menacing element.

So it is the CPS position on the strict liability which is the second significant feature of the case; and that concerns anyone who sends any electronic communication.

Including you.


The third significant aspect is the human context.

Prosecutions and criminal records ruin lives.

Paul has now lost two jobs because of this situation. His quite wonderful partner set out in a a moving guest post how the conviction had wider consequences.

I have had the privilege of meeting Paul a couple of times since this case emerged (and I have helped co-ordinate his appeal).

Paul is a great bloke, engaging and good-humoured.


But it wouldn't matter if he were an arsehole.

Prosecutions and criminal records should not be light affairs; they fundamentally affect the lives of the defendants, their families, and friends.

A criminal record has never improved a person's life; a criminal record has never directly benefited society as a whole.

Of course they are unavoidable for those who commit crimes; but they should not be imposed casually, and certainly not as casually as it has been imposed in this case.

Paul should not have lost one job because of this, let alone two.


The Paul Chambers case - known as the "Twitter Joke Trial" - has three points of significance:

- how relentless administrative and judicial stupidity can end in a conviction;

- how the CPS are wrongly using criminal law in respect of electronic communications; and

- how a criminal record can change a person's life for the worse.

Let us hope Doncaster Crown Court can reverse this injustice on Friday and allow Paul to rebuild his life.



COMMENTS MODERATION

No purely anonymous comments will be published; always use a name for ease of reference by other commenters.

Saturday, 11 September 2010

Conspiracy Theories, Dana Scully, and AJP Taylor

There can be no doubt that conspiracies exist.

Sometimes things happen which can only be explained by co-operation by those with an improper motive.

Sometimes such co-ordination can occur in the public sphere: ministers, officials, and state agents, together can be engaged in conduct injurious to the interests of those whom they are supposedly serving.

And sometimes such activity - or inactivity - is done in silence, on the basis of silent intuitions or shared assumptions, rather than by any express agreement.


I enjoy a good conspiracy story.

For me, one of the great merits of the X-Files show was the unfolding of the "mythology" - the story of a conspiracy between terrestrial and extra-terrestrial agencies behind a tactic of plausible deniability.


The show had other merits.


So conspiracies do happen, and they make good drama, but when should one believe that they occur in our non-fictional world?


My view is relatively simple.

There are conspiracies and there are cock-ups, and conspiracies tend to occur so as to hide the cock-ups.

It is only when there is something to hide that groups of people will have sufficient presence of mind and mutual interest to work in such a concerted way.

Such anxious and strict co-ordination seems rare for human beings unless there is some evasive and selfish purpose.


However, it must be said that "coincidences" do seem to happen.

And sometimes these coincidences do seem to be convenient.

For example, we have recently seen the investigation of the founder of WikiLeaks.

Many jumped quickly to the view that there must be a conspiracy, even though there was no evidence, but because the timing seemed such a coincidence.


But disconnected events do happen.

The political genius is usually not someone who can contrive such useful events, but someone who can exploit the opportunity presented by an unexpected event.

In his works of diplomatic history, my favourite historian AJP Taylor repeatedly showed how politicians and diplomats invariably reacted to unexpected events; sometimes to their advantage, but sometimes rather badly.


All because a politician can exploit an unexpected event does not mean that the event was unexpected.

After all, being able to manipulate opportunities is often how such people become powerful in the first place.


The most sensible position is to have a presumption against a conspiracy theory being correct, especially when the available information is limited.

This is not to deny that that the conspiracy theory can be correct; but the first step should not be to theorise but to seek further information and to work out how the situation should be investigated.

That is why this blog has urged that:

- the investigation against Julian Assange proceed under Due Process;

- there be a formal inquest in to the death of Dr David Kelly; and

- the allegation in the New York Times that there is collusion between News International and the Metropolitan Police be the subject of a fair and open inquiry.


When faced with the possibility of a conspiracy, the lazy mind may assume that there "must" be one.

This is rarely correct.

However, the better response is not to simply deny the conspiracy but, if it is sufficiently serious an allegation to warrant examination, to look at the evidence and to apply the appropriate methodology to the evidence.

In politically-charged matters, this may include a formal criminal investigation, or a coroner's inquest, or a parliamentary or judicial inquiry.

And that is an evidence-based approach upon which both Agent Scully and AJP Taylor (who otherwise would seem to have little in common other than my idolisation) would agree.


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Friday, 10 September 2010

What if Pastor Jones had been in the UK?

In the US, this Pastor Jones - with his indescribably stupid and irresponsible threat to burn the Koran - was pleaded with and pressed by politicians to stop.

But he was not banned.

He was not threatened by state officials with their coercive powers.


In the UK, however, he would probably have been arrested and possibly charged.

The arresting officers would probably not have given it a second thought.

Which way is the better way?


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Thursday, 9 September 2010

MetGate: A Guide to the Current Issues



Today the House of Commons will debate the "phone hacking" affair.

However, so much has happened in this matter since the New York Times published its article last week, it is probably a good moment to try and disentangle the various threads of this still-developing scandal.


First, there is the issue of what happened within the News of the World newsroom: what the reporters did, what private investigators were contracted to do, what the editor and executives knew about and signed-off, and just how widespread was the use of unauthorised interceptions in producing stories for the newspaper.

At the moment the centre of attention is Andy Coulson, not least by virtue of his current position as head of communications for the government.

But the import of this first issue is wider than just one employee, or indeed one newspaper.

And even in respect of what happened at the News of the World, this is wider than Andy Coulson.

There now seems to be a steady drip of significant new documentary and witness evidence: the invoices produced by John Prescott ; the testimony that may be provided by Sean Hoare, Ross Hall , and now Paul McMullan; and also what is seemingly contained in the drafts of a proposed book by the investigator Glenn Mulcaire.

The emerging picture really does not look promising for Mr Coulson, who appears to have either known about this activity or should have known. He may even be forced to resign.

However, it would appear that other executives and reporters, perhaps even on other newspapers, may now get caught up in this.

So far been the main focus of many Labour politicians and commentators has been this one element of the story, and on Twitter their favoured hashtag tends to be #Hackgate.

The next step in this first element is likely to be a re-opened investigation by the Metropolitan Police; an investigation which, of course, now seems to have been highly flawed in its initial execution.


And this leads us onto the second element: the seemingly flawed police investigation.

What caused the Metropolitan Police investigation to be so apparently misconducted?

Here the crucial allegation of the New York Times is that there was an improper relationship between the Metropolitan Police and News International.

And in respect of this allegation, it is important to bear in mind the chronology of the investigation (see my New Statesman post here for more on this).

The police investigation is triggered by events in November 2005. By May 2006, there seems to be evidence of a large number of unlawful interceptions. However, for no apparent good reason, the operational decision is made to significantly narrow the investigation.

When the arrests are then made in August 2006 of Clive Goodman and Mr Mulcaire, and evidence seized, the evidence seized from the latter of 2,978 complete or partial mobile-phone numbers and 91 secret (ie, non-factory-set) PIN codes appears not have then been properly investigated.

Charges are still brought only in respect of Mr Goodman and Mr Mulcaire.

As I have blogged previously, even the 91 secret PIN codes render the current assertions that there were only a handful of cases which could be prosecuted as very difficult to understand.

The possible errors of the police investigation and any undue effect on this investigation caused by the relationship between News International and the Metropolitan Police looks as if it is in within the scope of the recently announced inquiry by the Home Affairs Select Committee.

Those who are more interested in the New York Times allegation of an improper relationship tend to favour the hashtag #MetGate on Twitter.


And then there is a new, third part of the scandal.

This is the extent to which the unlawful interceptions and the failure by the Metropolitan Police affected the privileges and rights of parliamentarians.

This is the focus of today's debate, and one can see how it draws on both "HackGate" and "MetGate".

Members of Parliament have good reason to be wary of encroachments by both the police and the others.

There was the all rather hapless raid on Damian Green's office by the Metropolitan Police; and then there was the misconceived (and legally-illiterate) attempt by those acting for Trafigura to restrict reporting of parliamentary proceedings.

In a democratic and representative political system it is correct that MPs have protection from unlawful interference. Not even the security services are allowed to monitor the correspondence and telephone calls of MPs.

That said, the right to personal privacy is something all individuals are entitled to, unless there is a wider public interest in interfering with that right and, if so, that interference should always be proportionate and on a lawful basis.

So, although MPs are right to hold a debate on how MetGate affects their positions, there are implications for those who are not elected representatives.


This scandal has now lasted a week. The seemingly re-opened police investigation, the Home Affairs Select Committee inquiry, and today's parliamentary debate all will ensure the story carries on further.

And then there are revelations which may come from impending and current legal proceedings (see my post here).

This is a story, now with at least three emerging threads, which will not go away.


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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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New Statesman - What Next for MetGate?

I have over posted at New Statesman on what next for the MetGate scandal.


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The New Statesman

I am proud to announce that I will now be blogging regularly at the New Stateman.

I will be posting there on policy and law from a liberal and critical perspective.

You will also see I have buckled under the pressure of friends and readers and have changed the name of this blog back to Jack of Kent, though I have changed the sub-title. However, most of my writing will now be under my own name.


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Monday, 6 September 2010

MetGate: the law relating to interception of telephone calls and voicemail

English law does not directly recognise terms of art such as hacking, cracking, and tapping.

Such activities thereby have to be fitted into legal definitions before a prosecution can be brought under criminal law or a private action brought under civil law.

This blogpost sets out some of the potentially applicable law relating to the unauthorised interception and retrieval of voice messages.


Section 48 of Wireless Telegraphy Act 2006

Under section 48 of the Wireless Telegraphy Act 2006 (WTA), a person commits an offence if (unless authorised) they use “wireless telegraphy apparatus” (which may include a mobile telephone) with the intent to obtain information as to the contents, sender or addressee of a message of which neither they nor a person on whose behalf they is acting is an intended recipient.

It is also an offence if they disclose information as to the contents, sender or addressee of such a message. (This would thereby presumably include publication of such a message in a newspaper.)

Note this offence does not need an interception to actually have occurred; it is enough that they used a mobile with that intent, or that they disclosed the wrongfully retrieved message to another person.


The Crown Prosecution Service (CPS) guidance is here.

This offence only took effect on 8 February 2007 and so cannot be used for any incident before that date.


Sections 1 and 2 of Regulation of Investigatory Powers Act 2000

The Regulation of Investigatory Powers Act 2000 (RIPA) provides that it is both a criminal offence and a tort (a civil right of action) to unlawfully interfere with any communication in the course of transmission.

The offences are provided for in sub-section 1(1)(b) (public telecommunications systems) and sub-section 1(2) (private telecommunications systems), and the tort is provided for in sub-section 1(3).

By virtue of sub-sections 2(7) and 2(8) of RIPA, the tort and the offences contained in RIPA include interception of voicemails.

The CPS guidance is here.


Section 1 of the Computer Misuse Act 1990

The Computer Misuse Act (CMA) provides under section 1 that it is an offence if a person causes a computer to perform any function with intent to secure access to any program or data held in any computer when the access he intends to secure is unauthorised, and that person knows at the time when he causes the computer to perform the function that that is the case.

The question is whether the data is being held on a "computer". There is no definition of computer in CMA, but either the handset or the mobile operator's server and voicemail storage and retrieval system is likely to be a computer for the purposes of CMA.

The law blogger Simon Bradshaw, a lawyer and electronics engineer (who also helped pro bono on the Simon Singh case), has written about what is a computer under CMA here.

The CPS guidance is here.


Other legal areas

Also applicable may be law relating to misuse of personal information (which is a tort which has recently developed by the Courts out of the historic equitable doctrine of confidentiality) and provisions of the Data Protection Act 1998.



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Sunday, 5 September 2010

MetGate: why an inquiry is not a party matter


Nick Davies, the author of the excellent Flat Earth News, continues to provide excellent journalism on the unfolding MetGate affair.

He has now filed a detailed piece setting out the grounds for an independent inquiry. (It is also worth seeing his other articles on the same scandal.)

Also see the detailed and interesting article by Brian Cathcart at Index on Censorship.


As this blog pointed out last Thursday (almost alone of the political and legal blogs), the issues raised by the New York Times article are serious.

That is not to say that there is proof of wrongdoing; but there now is an array of witness and documentary evidence indicating that an independent and open inquiry should take place in the relationship between the Metropolitan Police and News International.

It is this relationship which is key to the whole matter.

The alleged interceptions and unauthorised access raise potentially significant legal issues under both the Regulation of Investigatory Powers Act and the Computer Misuse Act. Any possible offences should be investigated fully.

In all this, some Labour politicians are rightly focusing on the role of News International and Andy Coulson (they favour the hashtag #Hackgate on Twitter), whilst others are more concerned with what happened at New Scotland Yard (they favour #MetGate). I am one of the latter.

There is no doubt that Labour politicians are using this as a matter of party advantage.

However, that does not make their concerns illegitimate.

Many who generally support the Coalition (like me) are able to see that the concerns are serious, and to realise that the emerging evidence requires proper, fair and open consideration.

This is simply not a party matter; it is much more serious than that.

It is not good enough for Tories to try and close this down so as to protect Andy Coulson from criticism, or to save David Cameron from embarrassment.

As this Blog said last Thursday:

"Public confidence in the press and the police is crucial to a modern liberal and democratic society; any without an inquiry into these serious allegations, it is difficult to see how such confidence can exist."

And even partisan Tories should care about that.



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The police and video footage

Imagine the scene.

A police baton charge.

Imagine it being filmed by some leading action movie director: the noise, the speed, the aggression, the sense of determination and danger, the anticipation of impact.

The police being portrayed as if they were Roman legionnaires or a rampant cavalry.

You watch, and you tense as they approach their target.

And...


...the target calmly raises their camera phone.

The charge comes to an abrupt halt.

I do wish someone would film or animate such a scene.


The recent video footage of police misconduct featured on this blog and elsewhere has revealed sickening and disappointing police behaviour.

We have seen thugs such as PC Simon Harwood, PCSO Peter Lightfoot, and now Sergeant Mark Andrews violently attack members of the public.

It is likely that such behaviour has always been shown by some police officers, but only now is it being captured and broadcast.

This is a welcome development, as it is almost impossible to otherwise individual police officers to account for their conduct in office.

It would be better if there were functioning mechanisms to otherwise hold individual police officers to account; but until there are such mechanisms, the responsible promotion of such video footage seems to be the best way of in turn promoting police accountability for their seemingly relentless violent misconduct towards defenceless members of the public.


Of course, the majority of police officers should not mind being filmed whilst they discharge their public duties with the coercive powers they are uniquely entrusted with in our society.

After all, if someone is behaving lawfully then presumably they must have nothing to hide...


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*Please note there appears to be a bug with commenting at the moment. Please let me know at jackofkent@gmail.com if there are any error messages or other such problems.*

Another police assault

The BBC are reporting another disturbing police attack on a civilian.

This time the thug is Sergeant Mark Andrews.

The fuller video is here:



The victim was found asleep in her car.

The victim was taken to the police station, where the assault occurs.

She is said to have been terrified; she was taken to hospital.

He has now been convicted of ABH, but remains on full pay although suspended.

Something seems very wrong with our police at the moment, and it does not inspire confidence.


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Definitions...

According to the Independent on Sunday, the News of the World states:

"We reject absolutely any suggestion there was a widespread culture of wrongdoing at the News of the World."


This does seem a statement which has been, shall we say, lawyered.


So one may wonder what is actually meant by:

"widespread"

"culture"

and

"wrongdoing"


Also, one may perhaps wonder why the statement did not just say:

"There was no unlawful activity by News International."



There must be a very good reason.


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Saturday, 4 September 2010

#MetGate: These invoices mentioning John Prescott...


When I first read the New York Times article on Wednesday evening, I realised that it was a potentially significant story (see blogpost here).

So whilst many others in the political blogosphere were obsessing on William Hague's special adviser, I helped Labour bloggers and politicians to promote the story.

(I never expected to ever help Labour politicians, and I am fully aware that some may be seeking party advantage here, but the New York Times story clearly seemed to have wider implications.)


But, although there were some named sources, and although the New York Times has a good reputation for investigative journalism, there needed to be further documentary (rather than witness) evidence.


And now there are invoices: see tonight's Guardian website.

Invoices are, in my experience, the most common documents to feature in litigation; almost every commercial dispute involves an invoice.

An invoice will always be presumed by a court to be valid; unless those disputing its validity can show it to be a fraud.

Once its validity is accepted, the question usually becomes what the invoice actually says.

Here the Guardian states:

"The invoices are both dated May 2006, at a time when Prescott was the subject of intense media scrutiny following revelations that he had had an affair with his secretary, Tracey Temple. There is also a piece of paper obtained from Mulcaire on which the name "John Prescott" is written. The only other legible word on this document is "Hull".

"The name "Prescott" appears on two "self-billing tax invoices" from News International Supply Company Ltd to Mulcaire's company, Nine Consultancy.

"The Yard's letter, obtained by the Observer, states: "One appears to be for a single payment of £250 on 7/5/2006 labelled 'Story: other Prescott Assist -txt.' The second, also for £250, on 21/5/2006 contains the words 'Story: Other Prescott Assist -txt urgent'.""



Unless these invoices are fake (and that would be for News International to prove should the matter ever go to a court), the question becomes what would such statements on invoices mean?

Who knows?



There now appears to be a steady stream of new evidence on the key question raised in Thursday's blog: has there been a failure by the Metropolitan Police to properly investigate alleged criminal activity by those working for the mainstream media?


And, to repeat the conclusion of that blogpost:

"Serious allegations always just remain allegations; and so a due process needs to be followed in investigating them: a process fair to those involved, but also a process open to public scrutiny.

"As the New York Times allegations go to the relationship between the police and the press, it is not appropriate or possible that it should just be left to their respective supervisory bodies (even if one had any confidence in such bodies).

"There instead needs to be an open judicial inquiry, and the Deputy Prime Minister (a Liberal Democrat) and the Home Secretary (a Conservative) should appoint one immediately.

"Public confidence in the press and the police is crucial to a modern liberal and democratic society; any without an inquiry into these serious allegations, it is difficult to see how such confidence can exist"
.


There should be no rush to any conclusion; but neither should these serious allegations just be closed down by skilful political-media management.

Open scrutiny of these serious allegation by an independent body is required, and one with a process fair to all those involved.


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On blogging pseudonyms

As you can see above, I have changed the name of the blog to my real name.

I wonder if blogging pseudonyms will become as passé as Citizen's Band Radio handles?



[7 September - a number of readers have asked me to change it back, so I have but with a new subtitle.]



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The death of @jackofkent

You may have noticed that my @jackofkent account is no longer on Twitter.

Twitter has been very kind to me.

@jackofkent had over 7000 followers by yesterday.

It was a wonderful but strange (and sometimes slightly intimidating) sensation to think that any more than a handful of people had the slightest care as to what I tweeted.

I have engaged with some witty and intelligent individuals. I have also been able to work with like-minded people around the world on a range of causes.

And I may have been able to make a marginal difference via Twitter to things which spilled over into the real world: the Simon Singh case, the Paul Chambers "Twitter Joke Trial", making fun of Scientology and getting a story on Newsnight, and this week even keeping the story alive about the Metropolitan Police's seeming failure to properly investigate the mainstream media ("#MetGate").

(The latter even got me a direct thank you from John Prescott!)


However, Twitter really is a time-eater of the highest order.

And helping make #MetGate as a mainstream story, and getting 6969 followers (which rather appealed to my sense of humour), was a good time to go. There was probably nothing left to achieve.


I was also beginning to not derive as much fun out of it as the time I put into it probably warranted.

After all, tweeting and blogging are hobbies; they are voluntary activities.

There is no public duty or contractual obligation to tweet or blog.

If you are not having fun then there is no point doing any hobby.


I have a day job; I am writing a book ("Bad Libel"); I have this blog, and I blog elsewhere; I organise Westminster Skeptics; and (believe it or not) I also have a life which does not involve being either an appendage to a keyboard or promoting worthy causes.

I have tried to give up on Twitter before, but I could always think of a reason to go back.

So this time, I thought I would act a little more decisively.

I deactivated my @jackofkent account.


I am full of praise for Twitter, and I will miss being @jackofkent.

I am proud of the good work I achieved with that account.

And I am incredibly grateful to each person who followed me.

But I only have so much spare time, and I want to spend it doing what I enjoy doing most.

So if you followed me on Twitter, please forgive me for bailing out when I thought what @jackofkent could do had peaked and to get out on a high.

And at least you will always know you were one of @jackofkent's 6969.


(ps, as I have been accused of melodrama over my exit, I may as well have the above as the title to my blogpost :-) )

(pps, if you are very observant, you will have noticed I have changed the name of my blog too...) [7 September - a number of readers have asked me to change the title back, so I have but with a new subtitle.]


_______________________________________
Edited for style and new content, 5 September.

As requested by a few people, I have now created a Twitter feed for blogposts from this site.

I also still have my long-standing personal account, and I remain responsible for the Westminster Skeptics account.


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Friday, 3 September 2010

Guest Post: Tom Watson MP on The New York Times and Andy Coulson

I am delighted and privileged to host a guest blogpost by Tom Watson, the Labour Member of Parliament for West Bromwich East.


Tom Watson's concerns follow from the article in The New York Times on the apparant failure by the Metropolitan Police to properly investigate alleged criminal activity by those working for the mainstream media.

This "MetGate" (or "HackGate") story was covered on this Blog yesterday. See the excellent reporting in today's Guardian for more recent developments
.

(The below was first posted at Labour Uncut and is reproduced by kind permission of Tom Watson.)


A fresh investigation by the New York Times has produced evidence about the News International phone hacking scandal which contradicts that given to the culture, media and sport select committee, of which I am a member, last summer.

Andy Coulson – the former editor of the News of the World who is now David Cameron’s director of communications at 10 Downing Street – told the Parliamentary enquiry that he had no knowledge of phone hacking, which was limited to rogue reporters.

Les Hinton, the former chief executive of News International who now runs Dow Jones, assured Parliament that Coulson was telling the truth; and that he himself knew equally little.

The New York Times found otherwise.

“The litigation (between victims of phone hacking and News International) again is beginning to expose just how far the hacking went, something that Scotland Yard did not do. In fact, an examination based on police records, court documents and interviews with investigators and reporters shows that Britain’s revered police agency failed to pursue leads suggesting that one of the country’s most powerful newspapers was routinely listening in on its citizens.”

The New York Times also suggests, for the first time, direct police collusion with a commercial media organisation, an unnamed senior investigator alleging that a Scotland Yard press officer stressed the department’s “long-term relationship with News International”.

(The press officer in question, in a statement, said that he could not recollect these events and denied attempting to suppress the investigation.)

What is more, according to the NYT, Scotland Yard officials consulted with the Crown Prosecution Service on how broadly to investigate. But the officials didn’t discuss certain evidence with senior prosecutors, including the notes suggesting the involvement of other reporters, according to a senior prosecutor on the case.

The prosecutor was stunned to discover later that the police had not shared everything. “I would have said we need to see how far this goes” and “whether we have a serious problem of criminality on this news desk,” said the former prosecutor, who declined to speak on the record.”

That a Crown prosecutor should go so far – even off the record – as to speculate that the police had not shared everything is remarkable.

According to Charlotte Harris of JMW solicitors, “As lawyers representing hacking victims, we have always worked on the assumption that the prosecutors had at least seen everything, and that there was no material non-disclosure from Scotland Yard.”

The testimony given to the NYT is that the police did not share all the relevant information with the CPS.

And that if they had done, the CPS would have reached different conclusions.

These are clear grounds for a judicial enquiry.

If the prime minister thinks not, then he must explain why.

I have written, in his absence, to his deputy in these terms this afternoon (letter below).

The process by which the five victims other than the princes were selected is equally opaque and unreliable.

Was it done by the police, or were the prosecutors involved too?

We are entitled to a proper explanation.

And we are entitled to an explanation of why those not notified were kept in the dark by the police.

Many were Members of Parliament.

The “national security” explanation of who had been notified strongly implied that all MPs had been notified.

They haven’t.

The independent police complaints commission must now urgently review the investigation in detail.

In particular, who was selected, which victims should be notified, on what criteria, on what authority and who else had any requisite knowledge?

By similar token, who went to seize the materials, where are these materials stored, what processes do the Met go through when answering letters and enquiries about this material?

All this remains a mystery, to which potential perpetrators remain entrusted with the keys.

All relevant materials should be removed immediately and reviewed by an independent authority.

Most importantly, ALL potential victims must be notified.

It is not for the police to decide who may have a case and who may not.

They are not in a position to know.

There are possibly hundreds, maybe even thousands, of citizens who have had their privacy illegally invaded.

If the police have that information – and they do – then people are entitled to know.

There must be a proper investigation of the “investigation” of News International’s internal enquiry.

The Bird and Copeland enquiry that News International apparently commissioned has not been published or offerred up for examination.

The witness evidence to the select committee was vague, with no responsibility taken by anybody.

These are matters that have far reaching implications for our democracy.

There is more at stake than just the damage to David Cameron when he is finally forced to relinquish Andy Coulson.


Letter to Deputy Prime Minister

(Original here.)

Dear Nick,

In light of David's paternity leave, I write to you regarding the fresh investigation by the New York Times into illegal phone hacking at the News of the World under the editorship of Andy Coulson.

Andy Coulson and Les Hinton assured the DCMS Select Committee last year that they had no knowledge of phone hacking, which they have always insisted was the isolated action of rogue reporters.

The New York Times investigation, however, found that “the litigation (between victims of phone hacking and News International) is beginning to expose just how far the hacking went, something that Scotland Yard did not do. In fact, an examination based on police records, court documents and interviews with investigators and reporters shows that Britain’s revered police agency failed to pursue leads suggesting that one of the country’s most powerful newspapers was routinely listening in on its citizens.”

The New York Times also suggests direct police collusion with a commercial media organisation, an investigator alleging that a Metropolitan Police press officer attempted to suppress investigation in order to protect the police’s “long-term relationship with News International”.

Please can you confirm that the Independent Police Complaints Commission will investigate this serious allegation from a highly reputable source without delay.

What is more, according to the NYT, “Scotland Yard officials consulted with the Crown Prosecution Service on how broadly to investigate. But the officials didn’t discuss certain evidence with senior prosecutors, including the notes suggesting the involvement of other reporters, according to a senior prosecutor on the case. The prosecutor was stunned to discover later that the police had not shared everything. “I would have said we need to see how far this goes” and “whether we have a serious problem of criminality on this news desk,” said the former prosecutor, who declined to speak on the record.

That a Crown prosecutor should go so far – even off the record - as to speculate that the police had not shared everything is remarkable. Even lawyers representing hacking victims have always worked on the assumption that the prosecutors had at least seen everything.

Whereas the testimony given to the NYT is that the police did not share all the relevant information with the CPS. And that if they had done, the CPS would have reached different conclusions.

These are clear grounds for a judicial enquiry. Please can you confirm your intention to recommend one.

I know that you will share the widespread distaste for these disdainful and arrogant assaults on our democracy, and will want to see those responsible brought to criminal justice.

When those in the media who boast of defending our freedoms are in fact subverting them, people will expect their Prime Minister, and Deputy Prime Minister, to be on the side of truth.

I look forward to your early reply.

Yours sincerely

Tom Watson

Member of Parliament for West Bromwich East



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Thursday, 2 September 2010

Why MetGate Matters

Has there been a failure by the Metropolitan Police to properly investigate alleged criminal activity by those working for the mainstream media?


This question has been around for a long time, but it looked as if it was to linger until we all forgot about it.


It was a question raised by the circumstances around the prosecution of Clive Goodman and Glenn Mulcaire.

It is also the subject of a spirited libel case currently being brought by solicitor Mark Lewis (and click there for relevant links into the PCC "activity" on the matter).

But, until last night, it looked as if the question was not really going anywhere, unless Mark Lewis's case got to a substantive hearing.


However, in a detailed article which must be read by anyone with an interest in police conduct and media activities, the New York Times has revived the question and has sought to substantiate it with supporting material.

Much of this material is from anonymous sources and not open to verification.


The Guardian has picked up the story, though it is focusing on the particular role of Andy Coulson.

(It is a feature of UK political culture that any political problem needs to be personalised before anyone will report it and anyone will want to read it, and so this is one reason why we have staggering wider abuses whilst many get flustered about duckhouses and junior ministerial special advisers.)


Serious allegations always just remain allegations; and so a due process needs to be followed in investigating them: a process fair to those involved, but also a process open to public scrutiny.


As the New York Times allegations go to the relationship between the police and the press, it is not appropriate or possible that it should just be left to their respective supervisory bodies (even if one had any confidence in such bodies).

There instead needs to be an open judicial inquiry, and the Deputy Prime Minister (a Liberal Democrat) and the Home Secretary (a Conservative) should appoint one immediately.

Public confidence in the press and the police is crucial to a modern liberal and democratic society; any without an inquiry into these serious allegations, it is difficult to see how such confidence can exist.



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