The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • Sir, at the beginning of this Inquiry, the MPS emphasised that it came here to assist not obstruct, to self-criticise and not to justify, and to try and improve rather than to hide. The MPS has done everything it can to be open and transparent, willing to acknowledge mistakes and learn from the errors which the Inquiry exposes.

    In our written closing submissions for Module 2 of 11 May 2012 and our closing submissions for Module 3 of 17 July, the MPS attempted to summarise the evidence heard by you and the Inquiry insofar as it was relevant to the MPS or the relationships between the MPS and the press.

    We frankly admit that there have been incidents which have led to a plain perception of cosiness between particular senior MPS officers and particular journalists. The MPS also acknowledge that the decisions in July 2009 and September 2010 not to reopen the phone hacking investigation were taken too quickly and with a defensive and closed mindset.

    However, the MPS also submits that it's clear from the evidence you've heard that the vast majority of contact between the police and the media has been and continues to be sensible, constructive and proper. There has been nothing to suggest corruption on anything other than the rarest of occasions, and those rare occasions have been the subject of proper investigation and proper sanction.

    The evidence received by the Inquiry unequivocally demonstrates, we submit, that there was no relationship between senior officers and journalists that was in fact corrupt. There was no cosiness or inappropriately close relationships that in fact tainted police decision-making. More specifically, we say, the evidence has demonstrated that the phone hacking investigation was not at any stage limited because of pressure from or fear of the media, whether News International or the press more broadly.

    Similarly, we submit, the evidence has demonstrated that the decisions in 2009 and 2010 not to reopen the investigation were not in fact influenced by relationships between senior officers and News International.

    The MPS has addressed these points in detail in its written submissions and I will not repeat those submissions here. However, we are grateful for the opportunity briefly to address orally some assertions and criticisms made by other core participants in their written submissions. In particular, sir, I want to deal today with two issues, which we say are critical to any proper analysis of the evidence.

    First, the danger of conflating the perception of wrongdoing with its reality, and secondly, inaccuracy concerning the current work of the MPS to implement changes to its media relations, policy and practice.

    The written submissions of the core participant victims in relation to Module 2 of 28 May cover much of the same ground as our submissions. Like us, the CPVs make a distinction between the perception that there were corrupt or inappropriate relationships between the police and the press and the reality of such relationships. However, in our submission the CPVs have at numerous points conflated or confused the two. That, we submit, is both unhelpful and potentially dangerous.

    At paragraph 2 of their submissions, the CPVs say that:

    "Perception is as important as reality."

    With respect, that cannot be correct. A perception that senior officers are too close to journalists is indeed a source for concern. The MPS well recognises the damage that such a perception has caused and acknowledges the importance of ensuring that it doesn't arise in the future. However, had the Inquiry uncovered evidence of actual corruption of senior police officers or of inappropriate relationships with journalists actually causing different operational decisions to be made, it would, we submit, rightly be even more concerned about this than about the perception that some relationships were unduly close.

    Saying that, sir, is not to downplay the importance of perception. It simply recognises the obvious truth that actual corruption or relationships which actually affect police decision-making would be worse. To say that the perception of corruption and real corruption are equally important is simply not valid.

    The CPVs say perception is so important because perception that the police are corrupt can lead to a loss of public confidence in the police and a perception that the press can act with impunity, which can lead to a worsening behaviour by the press. We agree. The same point has been made by many witnesses to this Inquiry.

    However, asserting that there is widespread corruption in the police and that inappropriate relationships between police and press have compromised police independence when the evidence doesn't demonstrate that is unjust and simply serves to worsen the perception. In short, it creates the very problem that the CPVs are so keen to avoid.

    That, we submit with respect, is precisely what the CPVs have done on a number of occasions in their submissions.

    Having recognised the distinction between perception and reality, and, we say, wrongly asserted that perception is just as important, the CPVs then assert that a number of senior police officers did in fact become too close to reporters and failed as a consequence of that closeness fully to investigate or disclose evidence of media wrongdoing. In particular, they assert that in 2006, 2009 and 2010 close relationships with News International journalists and editors actually affected police decisions.

    In doing so, the CPVs are eliding the perception of police independence being compromised with the reality of such compromise. That's clear from phrases such as "independence or at least the appearance of independence was compromised", paragraph 32 of the CPVs' submission.

    They have conflated the two and asserted that because there may have been occasions when it appeared that certain senior police officers' independence was affected, it was in fact affected. That plainly doesn't follow.

  • No, the question is whether it's an inference that can be drawn.

  • Absolutely. Sir, you anticipate precisely the next clause of the sentence, which is: and there is nothing to support so serious an inference.

    The CPVs are not the only core participants to have conflated perception with reality. Guardian News and Media Limited have done the same in their Module 2 submissions. They assert at paragraph 10(1) that there was "cosiness between senior MPS officers and News International executives". At paragraph 12 they state that there is "real force in the view that an excessive close relationship developed between NI executives and senior police officers such as to materially influence the MPS response to the phone hacking investigation".

    But the evidence they point to, primarily the Filkin report, is about a perception of inappropriate relationships, not actual compromise of independence, and that flawed analysis, we submit, needs to be exposed.

    I'm going to concentrate for the main part in these short oral submissions on the core participant victims' submissions, as they're the most extensive, but the points could equally be made towards the Guardian's submissions.

    There are several points in the CPVs' submissions where the evidence referred to may justifiably be said to demonstrate a perception or appearance of unduly close relationships, but cannot be said to show that there was compromise of police independence in reality, yet the CPVs do assert such actual compromise.

    I deal with it by just three examples. At paragraph 48, the CPVs refer to a dinner hosted by the News of the World, which Andy Hayman and Dick Fedorcio attended on 25 April 2006. They note that this was at a crucial time in Operation Caryatid and assert that "the possibility of inappropriate conversation cannot be excluded".

    But in fact the timings suggest that such hospitality could have had no effect whatsoever on operational decisions. On 18 April, a few days before this dinner, DCS Phil Williams had sought and been given additional resources for Operation Caryatid. On 26 April, the day after the dinner, the decision was made to proceed with the investigation.

    Those actions are suggestive, we submit, of a robust, independent police force, not one whose independence was compromised.

  • But could it ever have been sensible for the police -- for particularly a very, very senior ranking officer -- to have dinner with an organisation that one of his officers was then investigating?

  • That, with respect, is a separate question. It may well be, sir -- I'm going to make no concession -- you will decide that it was not. But that is not -- and this is the critical point -- evidence of corruption in fact.

  • No, I understand the point that you're making, but the trouble is that this is where perception does become extremely important. If, as was the event, that investigation was limited, no doubt for different reasons, it doesn't require a very suspicious mind to join the dots together.

  • I absolutely agree and concede that, sir. Of course that's right. And the which of such a dinner happening at such a time is plainly something which can be the subject of comment. But it's a huge jump to say that you can proceed from that to a conclusion that in fact at that dinner they got around the table and said, "Tell you what, we'll just go through the motions". And that is, in our submission, at the root of the error of the analysis that's been put forward by some.

    The CPVs severely criticise DSC Williams for failing to widen the scope of Caryatid in 2006. They conclude at paragraph 82 that there remains in relation to DCS Williams a strong inference that he was fearful of the influence of the powerful media friends of his superiors. There is simply not the evidence to support such an inference. I will deal with these criticisms at little length because they're more extensive and haven't been specifically covered in our written submissions.

    In our submission, the Inquiry has heard compelling evidence from all the officers involved in the investigation about the overwhelming pressure on the MPS from the terrorist threat in 2006 and the absolute priority that had to be given to counter-terrorist operations. As Peter Clarke said in a memorable phrase:

    "Invasions of privacy are odious. They can be extraordinarily distressing and at times they can be illegal, but to put it bluntly: they don't kill you."

    The CPVs, in their analysis, skip lightly over this crucially important factor in a single sentence at paragraph 75. They say:

    "Be that as it may, it doesn't explain the reluctance of DC Williams to reveal the full extent and nature of the evidence to the CPS or pursue the agreed strategy of informing victims."

    We submit that that is wildly to underappreciate the nature and significance of the evidence about terrorist threats.

    There's no need to drive that point home, I suspect, sir. We deal with it in our written submissions and I'm not going to labour it.

    The Inquiry has heard no evidence that DCS Williams himself had any relationship with the media which could conceivably be perceived as overly close, let alone actually corrupt. Moreover, as the CPVs acknowledge, there is no evidence that he made any conscious decision to suppress evidence. Nonetheless, the CPVs feel able to assert, paragraph 76, that he would no doubt have been aware that his superiors in the MPS hierarchy enjoyed extremely close relationships with those he was investigating and therefore that it was:

    "Inevitable that the relationships between very senior MPS officers and the media exerted some influence on his decision-making."

    With respect, that's nonsense.

    First, there's no evidence to suggest that DCS Williams had any knowledge at all about the relationships between other officers and particular journalists at particular newspapers, and that point was never put to him.

    Second, that assertion assumes what it seeks to prove, that DCS Williams was making not just incorrect decisions, but decisions motivated by improper considerations.

    And third, it ignores the fact that DCS Williams's superior was Peter Clarke, an officer whom, as the Inquiry has repeatedly heard, is held in the highest regard by everyone who's ever worked with him. Even the CPVs accept that Mr Clarke did not accept much hospitality at all, and what he did accept was even-handed as to his relationship with the media.

    The CPVs make their inference about DCS Williams on the basis that he knew there was evidence of journalists other than Clive Goodman being involved but "misled" the CPS prosecuting counsel and AC Clarke by saying there was no such evidence. We've addressed that in our submissions and I just make three short points.

    First, CPS and counsel were plainly aware that the evidence implicated journalists other than Goodman because of counts 15 to 20. The CPS knew about the corner names. They had a copy of the Blue Book.

    Second, DCS Williams was working on the understanding that the evidential requirement to prove unlawful interception of voicemail was that it had to take place before it was accessed by the intended recipient.

    Now, sir, you may decide he was wrong about that. You may conclude that he was taking too narrow a view of the legal requirements to make out his case. But there is nothing to support a case that DCS Williams was there actively or intentionally misleading anyone.

  • It's not just a question of my construction of the statute, is it? Because at the time charges were pursued on the basis of the wider view, and in any event, he, like any experienced detective, would well have understood the reach of the law of conspiracy.

  • Absolutely, absolutely. But he was guided in the decisions he made -- and it may be he got it wrong. But he was guided by the advice he'd received. And it is an enormous jump, and one which we would suggest the Inquiry would not be justified in taking, between saying he got it wrong on these points and saying, as the core participant victims do, that he was misleading in some active sense anybody, whether counsel or CPS or his superiors. We say the evidence simply doesn't support such a conclusion.

    It is also, in our submission, significant that it became clear from DCS Williams's evidence that he was applying a restrictive view of what constituted evidence. He appears to have believed that he had to obtain concrete, forensically irresistible proof. His whole approach, it emerged, was that it wouldn't be sufficient to rely on inference, however powerful a lawyer might think the inference to be drawn was.

    He might be wrong about that, but the idea that he was actively misleading anyone is, in our submission, farfetched.

    The CPVs also base their inference about DCS Williams on the assumption that the MPS was in possession of all the evidence in 2006 necessary to realise that phone hacking was as extensive as it's turned out to be seen to be. But that, in our submission, is to fall into the obvious trap of viewing this through the wrong end of the telescope. It wholly fails to take into account the hugely time-consuming and resource-intensive nature of the work that would have been needed to be carried out in order properly to investigate these affairs.

    It is, in our submission, sufficient to look at the extent and nature of Operation Weeting to see the quantity of work involved. DAC Akers reminded the Inquiry this morning about the volume of material involved in some of these operations.

    The CPVs point to a failure to seek a production order against News International as a further reason to draw inferences against DCS Williams. We've made separate submissions on this issue in relation to Module 4. You have written evidence from the Deputy Commissioner on that topic, and we would respectfully refer you to that in this context.

  • Yes. What he's saying is that actually it becomes almost impossible because merely to assert, "We'll co-operate", makes it extremely difficult to satisfy the engagement criteria for a production order.

  • Because you can't prove that they haven't co-operated. So the co-operation might be a fig-leaf for doing not very much, and there's nothing very much the police can do about it.

  • It's seen as a self-justifying, self-fulfilling assertion when police are met with that sort of response.

  • But on the other hand, of course, one has to be very careful to respect journalistic sources, for all the reasons that we've discussed during the course of the Inquiry.

  • Absolutely. And that's the nature of the problem that we have sought to address in Deputy Commissioner Mackey's submission.

  • But it suffices for present purposes to observe that the Operation Caryatid team found News International's lack of co-operation back in 2006 frustrating in the extreme. You'll remember in answer to a question from you this morning, sir, DAC Akers drew a sharp distinction between that level of co-operation and what she has received in more recent months.

    The criticism faced by the police when journalists are investigated or searched is apparent from Module 2, written submissions from the NUJ, which I'll come back to in a moment. But we say the CPVs' attack is undiscriminating when it fails to recognise that whatever criticisms might be made of the law relating to production orders in cases involving newspapers, DCS Williams and the rest of the Operation Caryatid team was having to work with the law as it was then, not as it might be at some future day.

    Finally, sir, the CPVs point to the failure of the strategy for informing potential victims as evidence from which inferences can be drawn against DCS Williams that his independence was compromised. Again, we say the scattergun nature of the CPVs' analysis is evident.

    The MPS has acknowledged that the victim strategy was not properly implemented. It's done so both in its submission to this Inquiry and in the judicial review proceedings, but the reasons for that were various: lack of resources, competing demands, failure to follow-up a process that was believed to be working properly.

    But there's no evidence that you've heard at any stage to suggest that it was fear of News International, whether on the part of DCS Williams or anyone else in the investigation team, which caused the failure of the victim strategy.

    We say that for the CPVs to assert to that effect is another example of conflating perception and reality.

    CPVs summarise their allegations at paragraph 108. They say that the failures in the investigation are so significant that an inference can be drawn that police officers deliberately sought to downplay the evidence out of fear of News International.

    Hindsight is a dangerous device in an Inquiry of this sort. Nowhere, we say, is it capable of greater mischief than here. No one concerned with this Inquiry can wholly exclude from their minds knowledge of the significance of the material which subsequent events have demonstrated. The potential significance of first names scribbled across the corner of a piece of paper is now patent, but it's a long way from providing a ground for criticising those who at the time regarded this not as evidence of complicity in wrongdoing by journalists but as no more than a potential lead, which with a great deal of further work might lead to evidence, which might justify the arrest of an as yet unidentified individual.

    Still less, we say, is it grounds for inferring that operational decisions were made because of fear of News International.

  • But the police certainly had got to grips with the Mulcaire documentation, hadn't they?

  • Because they sought to interview -- I think it was Mr Mulcaire about these very topics, and also identified other names and the material which included PIN numbers and the like, which suggested, at any rate, that this was very much more extensive than that which eventually emerged as the prosecution case.

  • They had begun to get to grips with it, I readily concede, and they had started to detect what that evidence might suggest, yes. But it's a long way from that to putting together a case that was sufficient to be taken to court.

  • I understand that, but that's not the charge specifically. The charge might just as easily be, as I read the submission, that you never went further. And another example that might be given of that could be -- and I ask you to deal with it -- the failure to deal with the much enunciated "rogue journalist" theory, where certainly the police had the very gravest concerns, it seems to me, that this wasn't one rogue journalist, and yet -- I mean, normally, if the police fear that there may be other criminal conduct which they can't prove, I think the phrase is they "warn people as to their conduct".

  • Rather than caution them, because they can only caution somebody who admits it. Because it was nothing like that.

  • Two points in the observations you've made, sir. As to the second, about the good sense of giving such a warning, that was addressed by senior officers, more recently-appointed senior officers, in answers to questions from you, and they agreed.

    Mr Peter Clarke agreed that although it would be difficult sometimes for him to go into the office of a managing director of a large organisation and read the riot act in the way you've suggested, there were occasions when that would be sensible, and I don't attempt to dissent from that.

  • I can't immediately see that an officer as senior as Mr Clarke would have very much difficulty in making his views very clear to whomsoever he wished to make his views clear, however unhappy the response he might receive.

  • I don't attempt to dissuade you from that view, sir. That was put perfectly fairly to Mr Clarke and he dealt with it. But what I do attempt to respond to is the suggestion that there is in that some evidence which founds an inference that DCS Williams was either cowardly in his approach to police officers [sic] or was positively corrupt. Those are huge jumps, which I say are simply not justified on the evidence.

    The final example of CPVs conflating perception and reality relates to the decisions in 2009 and 2010 not to reopen the phone hacking investigation. Paragraph 109 of the CPVs' submissions read:

    "Intentionally or not, the MPS supported and participated in a cover-up of the facts, which has led to suspicions of corruption."

    Sir, in our submission it may be valid to consider that the evidence surrounding 2009 and 2010 could give rise to a perception or suspicion of cosiness influencing decision-making, but it's simply not valid, I would submit, to assert that the MPS were involved in a cover-up, intentionally or otherwise. Indeed, I'm not entirely clear how one can unintentionally cover up anything, since the verb "cover-up" in this context necessarily involves some deliberate action.

  • I think I agree with that.

  • It's right to acknowledge that the decisions were probably taken too quickly and with a defensive mindset that may not have asked the right questions.

    That was conceded by Sir Paul Stephenson and by others subsequent to him, and we respectfully urge you to adopt that. But there is absolutely nothing by way of hard evidence which calls into question the integrity of John Yates when he made those decisions. There's nothing to show that he was in fact swayed in his decision-making by his friendship with Neil Wallis or his relationships with News International more generally. There's nothing to show that he deliberately misled the Select Committee, the DPP or the victims, and again we say that to confuse legitimate criticisms that can be made about perception with reality is wholly unwarranted.

  • Mr Yates certainly didn't do himself any favours, did he?

  • And fortunately that's not the case I'm having to make out, sir.

  • We would urge you not to make the same mistake as the CPVs and others.

    Some of the evidence heard over the course of the last nine months could give rise to criticisms based on perception, but the evidence goes nowhere near to establishing that corruption or actual compromise of police independence occurred. And to slide from perception to fact is an easy move to make, but would not be remotely justifiable on the evidence you've heard.

  • What about this, Mr Garnham -- and it may be that it doesn't take any matters any further, and I'm not saying that I've reached this conclusion, I say immediately. But in connection with the decision in 2009, could it be said certainly approached too defensively, but also approached on the basis that very senior officers knew and understood the leaders of this organisation, and because of their personal knowledge of them were therefore less prepared to think ill of what they had been doing?

  • Sir, that's somewhere between the two stances --

  • That's why I asked you about it.

  • -- I've identified.

    I understand that, sir. I would submit that even that would be going too far. You don't have the evidence even for that. But that is some way short of actual corruption or actual compromise of independence; and I say you can't go even that far on what you've heard, but plainly it is a gradation.

    It's instructive, we say, to observe that the very same factual context can be perceived from very different standpoints, depending on the observer. That's apparent from the NUJ's submissions on Module 2, which criticise the MPS for being "interfering" and "threatening" in its media relationship. And it does so over precisely the same period of time during which it's accused of being over-cosy by the CPVs.

    We submit we're trapped somewhat between a rock and a hard place in trying to get this right. On the one hand, we can be criticised by the NUJ for being draconian. On the other, we can be criticised for being overfriendly.

    That serves, we submit, to illustrate the difficult position the police are in when it comes to dealing with an investigation of the press, and in that circumstance it is, we would submit, remarkable that the Inquiry has heard such a substantial body of evidence that's been positive about the work of the MPS, about the relationship between the MPS and the press and about the work of the MPS and the press together.

    The second of my two issues, sir, you'll be glad to know, is much more straightforward and can be dealt with much more shortly.

    The Guardian has at paragraph 6 of their submissions suggested that the MPS has adopted the recommendations of the Filkin report, and they then go on to criticise some of those. It's simply not correct to say that the MPS has adopted the Filkin report's recommendations.

    As Commissioner Hogan-Howe explained, the MPS has accepted her findings and the broad thrust of her report, but needs to do more work on whether and how to implement the recommendations. The work is being done now and that's set out in our Module 2 submissions. There's an update on progress at annex 1 of our Module 3 submissions.

    We submit that the overall picture that's emerged in the course of your Inquiry is that relations between the press and the police, whilst not perfect, have been essentially sound. We recognise that there has been some legitimate grounds for criticism of MPS conduct, primarily regarding the public perception created by the actions of some of its officers.

    We submit that the MPS has demonstrated through the evidence of its current senior officers an intent to address and correct the errors that this Inquiry has exposed. We remain ready to listen to and learn from your conclusions, and we do so whether or not they happen to coincide with our own analysis.

  • Mr Garnham, I'm very grateful for that, but could you help me with the present position of the ACPO responses, both to Sir Denis O'Connor's report and I think that also encompasses what Elizabeth Filkin had to say?

  • The honest answer to your question is: No, I don't think I can. I don't act for ACPO, but I have lines of communication to ACPO and I would have to take instructions and respond to that --

  • I wasn't necessarily asking from an ACPO perspective. Presumably your clients know where they've got to in relation to the ACPO line.

  • I think it would be useful if you could just at some stage submit a very short note on it so that I know.

  • I will do so, sir.

  • Thank you very much indeed. Thank you.

    Right. It's not happened many times during the course of the last ten months, but in the light of the fact that we can't proceed further, we'll adjourn now until 2 o'clock.

    Thank you.

  • (The luncheon adjournment)

  • Right. Well?