Wednesday, 24 August 2011

The Story of Hackgate, Part 1

The story of the current hacking scandal must begin with Clive Goodman.

That is not to say that the broad chronology of all the relevant events to do with telephone hacking and similar tabloid misconduct begins with his fateful arrest on 8 August 2006.

For example, any hacking by or on behalf of other News of the World journalists after the abductions of Sarah Payne (July 2000) and Milly Dowler (March 2002) was well before the arrest of Goodman. And there is no reason to believe Goodman was involved in this.

The open teasing of Dominic Mohan (now editor of The Sun) about The Mirror's use of Vodafone's lack of security for show business exclusives was back in early 2002.

(By the way, we still do not know how The Mirror's then editor Piers Morgan reacted to that.)

Furthermore, Operation Motorman of the Information Commissioner, an investigation into the unlawful trade in personal information involving newspapers, had commenced in 2003. The Information Commissioner's significant - but at the time widely ignored - first report on that investigation was even published in May 2006, two months before the unconnected arrest of Goodman.

So the broader story of tabloid telephone hacking, and of the other unlawful practices in respect of obtaining information, was already old by the summer of 2006.

But it is the arrest of Goodman which is the start of the story of the current scandal, for almost everything which has happened since so as to engage public and political concern flows from that one event, and why it ever happened.

Goodman was royal editor of the News of the World.

One means by which he got stories was by intercepting voicemails. According to reports of his conviction, he made at least 487 calls to royal household telephones for this purpose.

And in November 2005 there appeared a story in the News of the World which prompted serious suspicions that royal household telephone messages were being intercepted.

It is a curiosity of our domestic political system that it was only when the royal household's telephones were being interfered with that the Metropolitan Police had to act.

This means that had Goodman not been so cack-handed so as to use the information from the hacking of the royal household's telephones in a suspicious manner, there may never have been any police investigation.

And when the police did act, they sought to narrow the investigation to the royal household's telephones, even though they had seized substantial evidence from Goodman's accomplice Glenn Mulcaire of hundreds of other interceptions, not related to the royal household.

This collection of evidence from Mulcaire was to be crucial in the events which then followed; but without Goodman's clumsiness, all this information would never have been seized, and it doubtless would not now exist.

Both Goodman and Mulcaire were arrested in August 2006, pleaded guilty on 29 November 2006, and were sentenced to terms of imprisonment on 26 January 2007.

Given the guilty pleas, there was no trial, though there were sentencing remarks of the judge, Mr Justice Gross.

During this time Goodman continued to be employed (though suspended) on the News of the World. He was not dismissed until 5 February 2007, when his contract was terminated with immediate effect.

It is not clear why such instant dismissal was delayed to 5 February 2007.

Goodman had pleaded guilty over three months before, and it appears he had indicated a guilty plea well in advance of November 2006; but it was not until 5 February 2007 that he was sacked

The dismissal letter, dated 5 February 2007, is included in this pdf.

It is worth reading carefully, as what then happens over the following five months in 2007 determines a great deal of the shape of the current scandal.

Part 2 of the Story of Hackgate to follow here at Jack of Kent, but next will be a post at New Statesman on something very interesting which happened at the sentencing of Goodman and Mulcaire on 26 January 2007.


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Sunday, 21 August 2011

Jack's Diary - 21 August 2011 - a couple of things about me and Twitter

I am a bit jaded with Twitter at the moment, especially on the conversational side.

I am sure that it is my fault for "asking for it" but the routine sweary abuse and trolling is now tiresome. (By trolling, I mean someone sending a sequence of adverse or provocative messages with no sincere interest in any constructive dialogue.)

That said, it is a good way of promoting my work and things which I see as of interest or concern.

So, at least for a while, my @davidallengreen account will be used mainly as a channel for links and comments on legal stories and such things, as well as links to my other stuff and activities. I have another Twitter account for friends and contacts I know in real life, but that will be restricted.

I will also stop regularly deleting all my tweets on the @davidallengreen account.

I did this for three reasons: first, they are ephemeral by nature (and so thereby no inherent reason to retain them); second, as a form of risk management against frivolous complaints or threats of litigation (one cannot eliminate the risk, as tweets are stored elsewhere - I am happy to stand by each tweet, but not happy to waste time and money on the mischief-making of others); and, third, it meant I never got to see just how many tweets I had sent...

However, if @davidallengreen is just going to be a channel for links then there will be not as much need to delete.

[10 September 2011 - have done a complete tweet delete, more out of habit than anything. Will try and avoid another one.]

Any thoughts welcome. I have always enjoyed blogging more than tweeting, and this seems rather a good compromise.


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Social media and legal neutrality

Twitter and social media do not make certain things different.

A scam is still a scam, even if Twitter is used as part of con.

There are allegations by the highly regarded political and legal tweeter @PME200 on his blog as to the real life conduct of the person operating the "Lord Credo" account.

This is not the place to say whether such allegations are correct, though I note the operator of that account admitted to dishonesty before the account was deleted.

However, if the allegations are correct, they do not constitute a "Twitter con".

Instead it was a con that happened to involve Twitter, and not - say - the telephone or the postal service.

Similarly, the "incitements to riot" currently being charged in respect of Facebook are not "Facebook problems".

It just happens that was the medium which was used.

The fact that a social media platform was used should not, by itself, mean that an offence is any more or less serious as long as the requisite elements of the offence are otherwise made out.

This also extends to the Mabus affair (the subject of a thorough blogpost by the excellent Tim Farley).

Like many others in the on-line atheist (complete lack of) community, I had endless spam and death threats from Mabus. I personally regarded the threats as non-credible and deleted them along with the rest of the daily clutter in my inbox.

However, others took a different view (as they were fully entitled to, as it would be them and their families at risk), especially when the strange chap started turning up to events, and organised so as to successfully prompt a police investigation.

For me the Mabus affair was not a Twitter or social media issue; if there were death threats then the police should address their mind to them, regardless of whether the threats were in a tweet, an email, or on a postcard. If the police now take it further and prosecute, they are the best placed to make that decision.

In overall terms, the principle should surely be that the law should be neutral in respect of social media and internet-based publications: a con is a con, an incitement is an incitement, and a death threat is a death threat, regardless of whether it is on a social media platform or by some other medium.

Nothing should be a criminal act - or not be a criminal act - just because it was effected using social media.


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Monday, 15 August 2011

Jack's Diary - 15 August 2011: Riots, Without Prejudice, and Privacy

Last week, to my surprise, I spent a lot of time blogging about riots.

On Sunday I wrote a post here about how the difficulty in predicting a riot never translates into reluctance by pundits in explaining why they occurred (usually in accordance with the views they already hold).

On Monday at the New Statesman, I warned of the sentimentality one will encounter with those with partisan views on rioters and the police.

On Tuesday, again at the New Statesman, I urged that the riots needed to be kept in proportion, and on Thursday I argued that one need not panic and one should instead treat the offences as normally as possible. In between, partly in response to my friend Evan Harris, I blogged here that the army should not be brought in. And today I also blogged here that the key to explaining casual unlawful behaviour is to look at attitudes to law.

But my most popular post of the last week was none of the above. It was a post at the New Statesmanabout a riot that didn't happen.

However, I have no wish to become an inverse Laurie Penny: with me playing down the politico-socio-economic significance of civil disturbances and reporting regularly on outbreaks of civil peace. So that may be all the riot reportage I will ever do.

The legal podcast Without Prejudice goes from strength to strength. This week's special was my favourite one yet, with regulars Charon QC and Carl Gardner (and me) joined by human rights barrister Adam Wagner, experienced criminal lawyer David Wales, and Evan Harris providing a broader policy perspective. If you haven't listened to it yet, please do download it and give it a try. We have great hopes for this podcast series.

Outiside of blogging, podcasting, and work as a practising lawyer, I have made a renewed go at the (wretched) book. This one will be on privacy law in the round - not just hacking and celebrity injunctions - and it is already going better than the aborted libel book and the slow-moving wider 'Bad Law' book. Let's see if I get any further with it. To do so I may have to stay off that awful time-eater, Twitter, as much as I can, as I like the idea of finishing and publishing an actual book...


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The riots and lawlessness

The great historian Conrad Russell once wrote:

"In investigating causes, the first necessity is to match them with effects, and it therefore seems a logical priority to begin by trying to establish the effects for which causes must be found.

"If the effects are wrongly postulated, the causes will be wrong also.

"If we discuss causes without any investigation of effects, we are simply indulging in unverifiable speculation."

Conrad Russell, The Causes of the English Civil War (1990)

A great deal of the punditry, and the statements of politicians, since the riots of last week seem not to be based on any clear view of what is actually to be explained.

The socio-economic determinists will emphasise poverty and the "cuts". However, there will be little effort in setting out any direct lines of causation to what took place.

I happen to come from a working class/council estate/comprehensive school background, and I am instinctively averse to any easy link between socio-economic predicaments and unlawful behaviour. Indeed, most of the people who live on council estates, or are impoverished in other urban environments, are more likely to disproportionately suffer from lawlessness rather than indulge in it.

I cannot see how any socio-economic predicament is more or less likely to make one commit a criminal act in any given situation.

Of course, the horrifying poverty and lack of social mobility in many communities is quite real; but I deny that by itself it caused a single thing to be looted or damaged over the last week.

I would like to put forward an alternative point of view, in accordance with Russell's wise words above.

What needs to be explained is the lawlessness, not the socio-economic characteristics of those involved.

A number of people - between one and two thousand it seems - seem to have committed criminal acts last week in connection with the riots. These people, of course, are a minority of all those who committed criminal acts last week, but their criminality was concentrated and under the media glare.

People commit criminal acts for a number of reasons. For example, career criminals do it and see getting caught as an "occupational hazard"; and some people genuinely do not realise what they are doing is a criminal offence. However, these two explanations do not seem to fit the looters and rioters of last week.

Many people commit criminal acts because they believe they will not get caught: that they will "get away with it". Others think that it is acceptable to commit certain types of criminal act: they simply do not care if it is criminal. In both these cases, detection and prosecution always comes as a bit of a shock. It appears that a number of those "caught up" in the riots fit into these categories.

Why are some people likely not to take the law sufficiently seriously so not to regulate their actions so as to avoid criminal liability?

To my mind, the answer to that question is that in this country there is a general disregard for strict adherence to the law.

The journalist Peter Oborne comes close to this in his spirited attack last week on the morality of the political class.

But is not just the politicians.

For every dodgy expense ever claimed by an MP, there is some expense authorised by a newspaper executive for some unlawful intrusion to take place and some tabloid journalist who has paid some corrupt police officer.

And all this, in my view, goes beyond the political, media, and law enforcement classes: people will break the law if they think they can get away with it or think it is "acceptable", from defying speeding limits to dropping litter.

There is a general buzz of lawless behaviour throughout society.

If this is the case, then the riots must be explained in part by a lack of respect for the law for those involved. The riots then provided a sudden and unexpected opportunity for lawless behaviour: a window of opportunity, as it were.

(There is an old joke that some people need a reason for sex, whilst others just need an opportunity. The same surely goes for unlawful behaviour.)

And so if the problem is in part a lack of respect for the law, and a casual tolerance for unlawful behaviour, then I would suggest that the answer is not necessarily more laws and excessive penalties. Although this would have the misconceived attraction of a "crack-down" it would also tend to make the law and justice system seem arbitrary and illiberal.

If a cause of unlawful behaviour is that some people do not respect the law, then part of the answer is to endorse and assert the principles of the rule of law, proportionality, and due process, and to show people that the law is worthy of respect.

Otherwise, we are only making it worse for ourselves.


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Tuesday, 9 August 2011

Let's not bring in the army

As the riots and the looting continue, the minds of some are turning to "bringing the army in". It would seem "they will sort it out".

It is not altogether clear why.

Soldiers are not trained to be police officers; they are trained to be soldiers.

This simple point is especially important in respect of exercising any power of arrest and in dealing with public order offences. It may be that the police adopt the wrong tactics sometimes in dealing with public order matters; but at least they have relevant training and experience. The soldier has none.

But more importantly, it is important in a civil society that soldiers are not used against civilians - even if the civilians are violent looting thugs.

There is no need to bring soldiers in: the police actually have all the relevant public order powers to deal with the riots.

If the police are not doing so well so far, then that is a resource or tactical issue which can undoubtedly be resolved without reference to the armed forces.

There may perhaps be logistical support, such as communications and supply, which the armed forces can assist with; they could also maybe help in firefighting and medical support.

But we should not have a society where soldiers patrol civilians.

It was not a success in Northern Ireland, and there is no need to introduce it here.

Whatever our armed forces are for, it cannot be to coerce members of the public.


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Sunday, 7 August 2011

Privacy law: black and white and shades of grey

Does "privacy" have some binary quality?

Do you have privacy, or you don't?

And if you don't, does that make you then "fair game" for intrusions by strangers?

Does it make you "fair game" for the tabloid media for the publication of your personal information and photographs of you to their readers?

Take for example, John, a gay man.

John was not quite the only gay in the village, but his family and neighbours back home have no idea of his sexuality and, being reactionary and religious sorts, they would rather disapprove. He would rather they didn't know.

John, however, freely walks around central London with his boyfriend. Sometimes they hold hands; sometimes they even kiss in public. Nobody in London really notices; nobody in London really cares.

He is not a celebrity, and he has certainly never made any public pronouncement about sexuality. It would never have crossed his mind.

But one day, without his fault, he gets mixed up in a major news story, as members of the public can do. A tabloid now wants to splash a story about him and his boyfriend, with a photograph taken surreptitiously as they walk down Oxford Street; even worse, it is the tabloid his parents' read. Stephen the reporter phones John up first, so as to "get his side of the story". Stephen considers John's actions in the street as "fair game".

Does John have any "right" to privacy in these circumstances?

Should John have the right to determine when to tell his family and family's neighbours about his sexuality, or even to elect not to tell them at all? He is not a public figure, nor has he sought fame; but he is no longer in charge of when such personal information is to be published not only to those back home, but to the world.

Does the simple fact that he held hands with a man and kissed him in public in London mean that, in an instant, he loses his privacy rights about his sexuality?

Or are there things one can do nominally in "public" which do not trigger any right for any stranger to broadcast that thing to everyone else?

Scenarios like this provide the complications for the emerging law of privacy.

The difficult examples (at least for some) are those where a person is in public - say a beach or a quiet town or street - but has a subjective expectation of privacy. Should that expectation be protected by the law in any way and, if so, how?

Such privacy can work both ways: it isn't just about the Johns of this world. Indeed, little known to John, his parents and their neighbours - even with their backward opinions about homosexuality - or go down a local public house on swingers' evenings. They too do "private" things in "public" places, and they would not want John to know.

And Stephen, the tabloid reporter who wants to expose John, also routinely receives "private" information from his sources in public places, perhaps in the street or in snack bars, or chatting on his mobile telephone. Is that information also now "public"? Can anyone publish it? If what John does in public "fair game" why is that not true for Stephen the tabloid journalist?

In fact, all people want privacy in nominally public places. If every act outside the home or workplace was to be shown to the world then people would surely not be able to properly function under the glare.

But that said, it is less clear where the law - the formal ability to enforce rules backed with coercive force - should intervene.

If privacy in public places consists of shades of grey, how does the black-and-white world of the law fit in?


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Predicting a riot

A long time ago, when I studied history at university, we spent a couple of weeks on riots and civil disturbances in eighteenth-century England.

We discussed the seminal works of Marxist historian E. P. Thompson, especially his stimulating notion of a moral economy of the crowd.

There was a sense of balance - of justice - in any given community, and disorder was the natural result where factors led to an unbalance.

So, I asked, what about the Gordon Riots or (nearer to home for me as a Brummie) the Preistley Riots?

Oh, came the response, that was just bigotry.

It was then the realization came that people with political opinions tend to find exactly what they want in any civil disturbance.

Radicals and leftists find underlying socio-economic causes for certain riots, and mass vulgar prejudice for others. In turn, conservatives from Burke onwards tend to see any civil disturbance as being a failure of "law and order".

The actual riots are rarely predicted; but when they happen, people with political opinions tend to immediately know why they happened - what really caused them.

There was a riot last night in Tottenham. By the early hours it had spread down the road to Wood Green. It started outside a police station; it ended with the reported looting of consumer goods. A police car was set on fire; and so was a bus and (it seems) some buildings.

The great historian Conrad Russell once pointed out that before one posits causes, one must set out the effects one is actually seeking to explain.

And with many civil disturbances there are a range of effects which one seeks to explain: from conscious protests and articulated grievances to arson and mere vandalism. No one ideological model seems to provide a full explanation: demanding justice does not add up to looting; insufficient policing does not explain the concentration of people outside any police station.

In fact, civil disturbances are invariably used to validate political opinions which people already hold; no conservative or radical will ever say, "Gosh, that riot changes the way I think about society. Perhaps my principles or my policies are wrong?".

In this respect, civil disturbances are profoundly reactionary: they tend to reinforce rather than challenge views which already exist.

There were many causes of what happened last night in Tottenham and Wood Green; but that is just because a lot of rather different things happened. Accordingly, there may be a limited extent to which there is a single "solution" to what is seen as the problem.

But there is a general rule - few people accurately predict civil disturbances; and afterwards, few people have any doubt as to why they happened.


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Friday, 5 August 2011

Jack's Diary - 5 August 2011

Right, I am going to try and do more updates here on what I am doing elsewhere.

At the New Statesman, I did a post today on "The Struggle for Tabloid Content". This pulls on my general view that to understand the phone-hacking scandal - and a great deal else about the tabloid press in this country - one has to grasp the dynamics of the newsroom and how "stories" are put together.

One reason we have the developing scandal now is that the means by which content was bought and sold, and obtained originally, will have left lasting evidential traces: financial and computer records, for example.

So that is why it will not just "go away".

I have also restarted "the book". I found writing the general "bad law" one a chore, and I am bored shitless of writing about libel. (I like to think that I have done my bit for libel reform, unless a new illiberal and misconceived case comes along.) So the new book is about privacy; and I have a plan, loads of materials, and a research assistant. Let's see how that goes.

I am also doing more podcasting and - gulp - even television stuff. I have no doubt this will end badly. However, in the meantime, please do listen to the Without Prejudice podcasts, which come out roughly every two weeks. And, if you really must watch, here is me (and, yes, that is my hair) on Sky News.


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Wednesday, 3 August 2011

Diving Accidents, Negligence, and Insurance

Whenever I read of a case such as that of Kylie Grimes, who was left tetraplegic after diving into a swimming pool, I usually have two reactions.

The first reaction is a humane feeling of empathy: we all do stupid things, and there by the grace of sheer luck go any of us. Just imagine if the stupid things we have done meant we all had ended up with severe disability.

The second reaction is anger.

The anger is for the smug sorts who always scoff at the claimant for bringing such a case at all. The knowing ones who say that "of course it is the claimant's own fault" and "they only have themselves to blame".

This response show a lack of understanding as to why such cases are brought.

In fact, such negligence cases are always artificial; they are framed just so as to obtain proper funding for the care the victim needs for the rest of their life. The costs of that care will always be high, regardless of whether the victim can successively frame their case as a negligence claim or not.

Perhap the wisest thing I was ever taught at law school was said by Ray Hodgin, the expert in the law of insurance who taught the tort course at Birmingham University.

"Always remember," he said, "that the law of negligence is part of the law of insurance, and not vice versa".

Indeed, in practice, many negligence claims - especially in the field of personal injury - are insurance driven (or driven by there being a defendant with assets).

Read the judgment of the Kylie Grimes case carefully; see how the eventual decision as to whether she will get monies to cover the rest of her life depends on a sequence of assessments of law and evidence as to her and others' culpability.

But there is no assessment of her needs as a tetraplegic, though those needs will be the same whatever that outcome of this judicial exercise.

This is surely not the way that those who have very serious accidents should be dealt with.

In my opinion, those who have had very serious accidents should be entitled to appropriate compensation without the lottery of a negligence claim. A central fund should be established, financed by insurers, for those who have serious accidents and require life-long care. It probably would be cheaper for the insurance companies than fighting litigation. I understand this is the sensible approach of other countries.

The law is useful for certain purposes, but the law of negligence cannot be the best way of determining whether those who suffer very serious accidents get the resources they need to have appropriate care.

It may well be that sometimes it is "all their own fault" but in a civilized society the lack of funding for the care of the seriously injured is our responsibility, and not that of the claimant.


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