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

  • DAC SUE AKERS (recalled).

  • You've twice given evidence before, Deputy Assistant Commissioner, I'd be grateful if you bear in mind you're still subject to the oath you took at the beginning.

  • Deputy Assistant Commissioner, you've kindly provided the Inquiry with a further witness statement dated 20 July under the standard statement of truth; is that right?

  • So that it's quite clear, this statement, as indeed each of the others, has been provided following notice issued under Section 21 of the Inquiries Act.

  • Paragraph 4 of the statement, first of all. You continue to lead all the operations. These, of course, are Operations Weeting, Elveden and Tuleta; is that right?

  • Paragraph 5, could I ask you to speak to that, please?

  • Investigating all of these investigations -- and they're numerous -- we've worked obviously closely with the CPS, and they have advised us regarding potential offences. We've sought legal advice and in respect of both individual and corporate offences, and also in relation to our police powers and our options for investigating.

  • Thank you. To date, as you explain in paragraph 6, you've primarily been seeking the co-operation of News International. Indeed the subsidiary company, NGN as well, I suppose. But your dealings with the Management Standards Committee, you explain that at the end of June of this year, a Mr Zweifach replaced Mr Klein; is that right?

  • Can you help us with paragraph 8. Mr Lewis and Mr Greenberg no longer attend the regular meetings. Can you remember about when that change took place?

  • It took place fairly recently. At the beginning, when we began the enquiries, all contact was through the lawyers; then these were other lawyers, Burton Copeland. Then Mr Lewis and Mr Greenberg were introduced to help facilitate the co-operation, which they did. And in mid-May this year, following a development in our investigation, it caused the MSC to reconsider their position and they decided that they would prefer the meetings to be on a more formal basis with lawyers only. I should say, that hasn't affected the co-operation, which is still very good.

  • Thank you. You explain in paragraph 9 in mid-May of this year there was a development in your investigation, which appears to have caused the MSC to reconsider their relationship with you. And there was a pause for several weeks in the voluntary disclosure material to you. But a meeting took place on 1 June, Lord Grabiner and other lawyers acting for the MSC, and voluntary disclosure resumed. So the pause was for two or three weeks; is that right?

  • Yes. The pause was from the middle of May until -- I think we then got more disclosure in the middle of June. 14 June, I think, was when we got our next disclosure. And it's continued since that date.

  • In terms of the resources, you observe in paragraph 10 that the Management Standards Committee have committed significant resources to assist these investigations, continuing to co-operation and disclose documentation; a professional and productive relationship and not without its challenges.

    Operation Weeting now, paragraph 12. You explain the background. In paragraph 13, could you sum up the position there as to the number of people who have been arrested and when the bail has to be renewed or reconsidered?

  • Yes. 15 current and former journalists have been arrested and interviewed in relation to conspiracy to intercept communications. 12 of those remain on pre-charge bail, 11 of whom are due to return to various police stations tomorrow, 24 July, other than one individual who has been bailed to 2 August. One non-journalist has also been bailed to tomorrow, 24 July.

    Files in respect of all of these individuals are currently with the CPS for advice as to potential charges.

  • Thank you. The perverting the course of justice matter, I think we all understand what that relates to and who the individuals are, but you've been careful not to name them. It's summarised in paragraph 14; is that right?

  • We can just note that.

    Paragraph 15, the non-journalist; you want to change paragraph 14 to paragraph 13?

  • Yes, the re-numbering has caused us to miss that. That should read "the non-journalist referred to at paragraph 13".

  • You make it clear there that the alleged offence relates to money-laundering matters, and the bail has been extended to tomorrow's date.

    Paragraphs 16 and 17, I think you've already covered that satisfactorily?

  • Unless there's anything else you'd like to add?

  • We're moving forward to Operation Elveden, which starts at paragraph 18 of your statement. May I invite you, please, to sum up the position there. It's paragraph 19.

  • Yes. Elveden to date has conducted 41 arrests. Broken down, that's 23 current or former journalists, four police officers, nine current or former public officials and five individuals who acted as conduits for corrupt payments. There are currently files at the CPS for three police officers and one journalist. And we're continuing to supply the CPS with files as we get them ready.

  • The CPS are continuing to advise. There's a range of offences there, which of course will be familiar to the Inquiry and to criminal lawyers, but the money-laundering, apart from the well-known corruption offences and new Bribery Act offences, and before the Bribery Act, it was of course the Prevention of Corruption Act.

    Can I ask you, please, about paragraph 21, if I could ask you to summarise that?

  • Yes. Before I do, when I go on to talk about developments in our investigation, I have in some cases used the word "alleged" but I haven't repeated it throughout. I think I said this on a previous occasion when I gave evidence. Where I talk about these developments, what I say is a matter of allegation and not established fact.

    In relation to Elveden then, our ongoing investigation has recently revealed that in some cases where we've identified a public official who's received payments from News International, we've also established that they have received payments from other newspapers.

  • Thank you. I'm going to ask you now to deal with paragraph 22 in some detail.

  • This relates to one case where the public official was a prison officer at a high security prison during the periods when the payments were made and the related stories were published.

    In this case, the individual's former partner has acted as the conduit and facilitated the payments into their bank account. And that bank account, from the former partner, reveals numerous payments from News International, Trinity Mirror and Express Newspapers between April 2010 and June 2011. And those payments total nearly £35,000.

    There were in fact further payments after the prison officer retired, which he did in June last year. The last of which was made by Express Newspapers in February this year.

  • Thank you. And paragraph 23, you say that co-operation from the MSC has enabled you to identify the stories to which the News International payments related, and further investigation has enabled you to identify stories in the Daily Mirror, the Sunday Mirror, the Daily Star and the Sunday Star that are suspected to be linked to the payments?

  • Yes, that's right, sir.

  • Again, in the same way as you carefully dealt with paragraph 22, can you do the same, please, for paragraph 24?

  • Yes. This describes another case we're investigating, where again the public official is a prison officer at a different high security prison. And again, that individual's partners has facilitated the payments into their account. These payments are from Trinity Mirror. They were made between February 2006 and January 2012, and the total amount in this case was in excess of £14,000. Again, further investigation has enabled us to identify stories in the Daily Mirror which we think are linked to those payments.

  • Thank you. In paragraph 25, the assessments you've made to date, could you explain those to us, in particular the public interest aspect?

  • Yes. As I say, ultimately the public interest test is a matter for the CPS, but we make an assessment ourselves as well around public interest as to whether the alleged criminal conduct can be justified as being in the public interest, as well as whether there are grounds to suspect offences.

    It's our assessment that there are reasonable grounds to suspect that offences have been committed and that the majority of these stories reveal very limited material of genuine public interest.

  • Thank you. On 11 July -- obviously only two weeks ago or slightly less -- following the arrests of one employee of Trinity Mirror and one employee of Express News Group, letters were served on the head of legal for those newspapers requesting specific evidential material. Can I ask you, please, to explain what has happened and to update us as to progress and co-operation with those companies?

  • Yes. We've -- we asked for a response by 18 July to our request for evidential material, which we think are in the possession and control of both Trinity Mirror and Express News Group. We've had those responses.

    Trinity Mirror Group have asked us to obtain a production order and indicated that they won't oppose that. Express Newspapers have taken a slightly different stance. They wish to proceed by way of voluntary protocol, which would be more akin to how we've co-operated with News International. And at the moment we're in the process of drafting that voluntary protocol.

  • Thank you. In paragraph 27, further lines of inquiry may result in further arrests.

    In paragraph 28 now, Deputy Assistant Commissioner, can you explain what's happening with Elveden and the MSC, in particular the Sun newspaper?

  • Yes. These paragraphs I'm attempting to explain, as asked in my Section 21, how co-operation has worked.

    We opened our investigation, as we say, on the basis of full co-operation, and the MSC then conducted their own internal review of the Sun, which was not a request made by us, but they did it nevertheless.

    As a result of that, they voluntary provided a lot of documentation, which evidenced suspected criminality and which led to a couple of individual arrests and then to very substantial arrest days, which were highly publicised. They were on 28 January this year and then again on 11 February, and involved the Sun newspaper.

    Following that, those two arrest days, there was considerable adverse publicity of both the MPS, the police and the MSC, including threats of legal action against the MSC.

    Following that, there was a change in the nature of the co-operation. We were being asked perhaps to justify our requests to a degree that we perhaps formerly hadn't been, and the material that we were requesting was slower in being forthcoming.

    The MSC were obviously very conscious to protect legitimate journalistic sources, and of course the law places very strict restrictions on the police obtaining such material.

    The comments are we started on the basis of full co-operation, so any change in that co-operation could adversely affect initial decisions that we'd made and arrests that were made as well. But I should stress that, despite challenges, quite correct and proper challenges, the co-operation continues and we have recently received a substantial amount of material.

  • Thank you. In paragraph 31 you refer to an internal review the MSC have conducted of their own volition, but that has yielded no further evidence for you; is that right?

  • Well, the MSC would say the result of the review was the material that they had disclosed to us, but we haven't received or -- I understand there is no formal report as a result of their review.

  • Okay. May we move forward to Operation Tuleta, and I ask you, please, first of all in paragraph 33 to summarise where we are. It's paragraphs 33 and 34.

  • Yes. "Tuleta" is a kind of over-arching name for a number of discrete investigations. We're conducting an assessment of 101 separate allegations of data intrusion. These include allegations of phone hacking, computer hacking, improper access to medical, banking and other personal records.

    In order to undertake this assessment, we've collated relevant documentation from previous inquiries and looked at electronic storage devices which had been previously seized in other inquiries. And we're gathered between 8 and 12 terabytes of data across 70 storage devices, which we're searching for evidence to either support or contradict the allegations that have been made by these 101 individuals. That's a very substantial amount of documentation and data.

    I know the last time I was here I was hopeless in answering your question as to what that might amount to, so I've done some homework and a terabyte, if downloaded in the form of a kind of normal-size paperback, which is then piled on top of one another, I'm told the terabyte amounts to three and a half times the height of Everest. So between 8 and 12 terabytes, whilst leaving rather a large margin of error, I agree, it's still a substantial amount of documentation.

  • It creates its own problems for analysis and research?

  • It absolutely does, because we can't look at every piece of documentation. We have to be careful about how we search it and what criteria we put in that -- in our questions of the data.

  • But continuing on, sir, to date we've made six arrests under the Computer Misuse Act and/or in respect of offences of handling stolen goods, subjects of which are all on police bail pending completion of the arrest phase and further investigation. As in the other cases, in due course files will be submitted to the CPS for charging advice.

  • Thank you. The MSC have been one of the sources of material for Operation Tuleta purposes. Then paragraph 36, you explain what happened in April of this year. Can I ask you, please, to tell us about that?

  • Yes. As a result of the material that we've had provided to us from the MSC, it seems that on occasions we've found that material has been downloaded from and is in possession of News International titles which appear to have come from stolen mobile telephones.

    It appears from some of the documentation, and that's dated around late 2010, that one of the mobile phones has been examined with a view to breaking its code, its security code, so that the contents can be downloaded by experts. And obviously a significant and important line of inquiry for us is to identify the experts that have been used.

  • At the moment, as you say, their identities are unknown to you but they're likely to exist in different parts of the country.

    Paragraph 38, tell us about that, please, and then lead into paragraph 39.

  • We'll obviously request now further documentation from the MSC as a result of what we've discovered in respect of the stolen mobile phones, and we're hopeful that that will produce further relevant information which will then lead us to the expert services, and when we reach them, at that point we hope to establish whether in fact these are just isolated incidents or just the tip of an iceberg.

  • Mm. Thank you.

    Paragraph 40, one mobile telephone theft took place in Manchester and another in South West London, and this may suggest that this is more than an isolated local issue, but as you're careful to say, you're at a very early stage in the investigation.

  • Paragraph 41, please, it's a similar pattern, I think, with the co-operation of the MSC. It's now only lawyers who --

  • Yes. The co-operation is exactly the same in terms of the make-up of the MSC team that deals with our offices, and now we deal entirely through the lawyers.

  • You say that initially there was a challenge to Operation Tuleta's request for information about the apparent handling of the stolen phones and subsequent downgrades, but now there's a willingness to assist.

  • Victims next. You're taking the story forward from when you last gave evidence. Can I ask you, please, to summarise paragraphs 42 to 46?

  • Yes. I think the last time I gave evidence we were still in the process of notifying victims and potential victims of phone hacking. We've completed that process now as far as we can insofar as we could identify the victims who we think have been likely to have been subjected to phone hacking. And so we've notified a total of 2,615, of which 702 we think are likely to have been victims.

  • We have a figure above 702 who we think are likely to have been victims but, for one reason or another, we're unable to contact those people. That's why there's a discrepancy in the figures between paragraphs 44 and 45.

  • Great, that's very clear. Thank you very much, Deputy Assistant Commissioner.

  • Ms Akers, I received evidence of the response which the police received when they visited News International in 2006. Would it be right for me to conclude at this stage that whatever might have happened in the past at News International titles, the senior management and corporate approach now has been to assist and come clean, from which I might be able to draw the inference that there is a change in culture, practice and approach?

  • Yes, sir. I don't disagree with any of that.

  • Thank you.

    It is obviously very important that when I report, and the exercise of this Inquiry will come to an end, as I'm sure at some stage so will your operations, it has the benefit of absolutely up-to-date information.

    Of course, I am not concerned about individuals at this stage, I am merely concerned with what's gone on in the past and what I might derive from that as to culture, practice and ethics, and what impact that might have on the future. But in order that I am absolutely up-to-date as far as is possible, I would be grateful if you would be prepared to return in the autumn so that I know what the position is -- it's obviously fast-moving -- and in that way at least can give those who read my report the benefit of what that up-to-date position is. I hope that won't cause you too much inconvenience.

  • No, sir, I'd be very happy to do so.

  • Thank you very much indeed. Thank you.

    Right.

  • Now 81 statements which we were planning to read in today, but we've had a request from at least one core participant that that be delayed until tomorrow on the basis that they say there wasn't time to read them all.

  • We can do that first thing tomorrow.

  • All right. Does that prejudice proceeding with the submissions that people want to make at this stage?

  • They've all seen the statements, and therefore, to such extent as they wish to, as that might affect their submissions, then their submissions with be tailored accordingly.

  • Yes. I imagine the submissions are going to be at a higher level of generality. I don't know that, having had no idea what topics are going to be addressed orally, but I suspect it's going to make no difference whatsoever.

  • All right.

    Before commencing the oral submissions that I have invited at the end of this module, it is sensible if I deal with the future progress of the Inquiry, and I do so under three headings, that is to say: issues that presently remain outstanding, the impact of Rule 13 of the Inquiry Rules 2006 ("the Rules") and any further developments.

    Outstanding issues.

    As I have just made clear to deputy Assistant Commissioner Akers, it is important that my report is based on what is then the most up-to-date information about the progress of the criminal investigation. Thus, without descending into who did what to whom or offending the self-denying ordinance on the detail, the extent of that investigation -- including how widely it then ranges and what it has excluded -- may inform my view about the culture, practice and ethics of at least a section of the press. It is in those circumstances that I make clear that I will issue another request under Section 21 of the Inquiries Act 2005 ("the Act") returnable on a date probably in September. Notice of a hearing will be provided in good time to all core participants to Modules 1 and 2, and they will have the opportunity of submitting any evidence they wish to deal with what is then reported.

    There are three remaining issues in relation to Operation Motorman. The first two arise from my ruling on 11 June 2012, paragraph 11 of which reads:

    "If Mr Sherborne's clients wish to provide the Inquiry with such information as they have collated from the Whittamore records where a continuous link to the present day can be established, they should do that without further delay and in witness statement form. Any other core participant will then be able to submit a short statement in response, either from the title or the journalist concerned. The purpose of this exercise is necessarily limited. It would not be to require titles to list when each journalist who made a request to Mr Whittamore left the paper; it is only intended to address the specific journalists that Mr Sherborne's clients have identified who are still in their employment. Nor would it be to require titles to prove in general terms the history of their retention or destruction of information acquired from Mr Whittamore, in the absence of specific and recent evidence of use. I am not in any event requiring that any of this be done either by Mr Sherborne or the individual titles but I will, of course, consider anything that emerges from the exercise (in addition to the information which Mr Dacre for Associated Newspapers Limited offered to provide in writing) and it will form part of the evidence."

    As I understand it, that information has not yet been provided to the Inquiry but is being pursued. It only seems fair to put a deadline on it: if any other core participant is able to deal with it, the evidence should be provided by the end of this month with a response by any relevant newspaper by 10 September. So as to ensure that there is no risk of work having to be done twice, I also identify that date for the other information that Mr Dacre offered to supply to which I also refer in that ruling.

    I do not anticipate that this evidence will require oral elaboration and I anticipate that I will make it part of the formal record of the Inquiry, along with other statements that are being read into the record when DAC Akers or whomsoever is then in charge of the police inquiry provides the further update.

    The third remaining issue arising out of Operation Motorman flows from my ruling of 10 July 2012 concerning the attitude of Associated Newspapers Limited to the evidence revealed in the documentation seized from the private detective Steve Whittamore. In short, I had been concerned to learn whether any core participant wished to argue that I could not use the Motorman material to reach generic adverse conclusions about the practice in general of the press perhaps because it was be wrong to conclude, even on the balance of probability, that breaches of Section 55 of the Data Protection Act 1998 could have been established against journalists. I then postulated three possible approaches namely, first, that it is conceded that there is prima facie evidence that journalists did act in breach of Section 55 by seeking information which, prima facie, could not be justified in the public interest. The second position is that the core participant does not want to advance a positive case contradicting the first position. The third was that it is, in fact, challenged that there is a prima facie case against journalists that they acted in breach of the law. Associated Newspapers Limited has now responded to that ruling and made it clear that it adopts the second of the three approaches: the open letter from its solicitors to the Inquiry to that effect will be published as part of the record.

    Apart from the police investigations and Operation Motorman, I recognise that there is real potential for other evidence to be forthcoming. In a number of the closing submissions, it has been suggested that one of the consequences of the fast-moving nature of this Inquiry has been an inability to challenge material particularly where relevant witnesses have already given evidence prior to new allegations being made.

    That is to misunderstand how the Inquiry has proceeded. It has always been open to core participants (and others) to submit evidence to the Inquiry to answer allegations that have been made and, in appropriate cases where the interests of fairness require, that evidence will be published as part of the record of the Inquiry. There have been a number of examples where this has already happened and I am prepared for that type of material to be provided to the Inquiry over the weeks to come (albeit no later than the end of August 2012 in respect of evidence prior thereto).

    One example will suffice. The Inquiry only learnt of the existence of Matthew Sprake very recently, but I am conscious that his evidence last week concerned, in large part, the work which he had been employed to carry out for The People. Further, it raised issues relating to the responsibilities for the ethical decisions in connection with its commissioning. Although I recognise that it is now too late to serve a notice under Section 21 of the Act on the editor, Mr Lloyd Embley (who gave evidence during the course of Module 1), should he wish to provide his account of that relationship, dealing with what Mr Sprake has said, I will, of course, consider it.

    Rule 13 of the rules.

    On 1 May 2012, I handed down a ruling dealing with my approach to Rule 13 of the rules, which I supplemented three days later with a further ruling dealing with the position of the Metropolitan Police. I did so specifically so that any challenge to that approach could be tested by way of judicial review in good time and without disrupting the timetable: see paragraph 64 of the ruling of 1 May 2012. There has been none and I intend to proceed accordingly. It is, however, important to make public certain aspects of this procedure.

    First, Rule 13 provides that I may send a warning letter to any person who I consider may be the subject of criticism in my report and, by Rule 13(3), must not include any explicit or significant criticism of a person in the report unless I have sent such a letter and provided the recipient with a reasonable opportunity to respond. In the circumstances, I intend to send letters under Rule 13 setting out criticisms which may be made on the basis of what is considered to be reasonably arguable on the facts and evidence canvassed over the course of the Inquiry to date, the purpose being to alert the recipients to the full range of matters in respect of which further representations may be made. What it is critical to appreciate, however, is that it should not be thought by any recipient that the specific criticisms which I consider to be reasonably arguable will necessarily appear in that form (or, indeed, necessarily at all) in the final report.

    Warning letters are an inherent part of conducting the Inquiry fairly and constitute the process of ensuring that all those potentially subject to possible criticism have the opportunity to respond. It may be that it will be thought that submissions that have already been made deal with the possible criticisms and it will be sufficient either not to respond or simply to refer to those submissions. At the other end of the spectrum, representations can include the provision of further evidence and I am prepared to consider the possibility that I may have to reconvene oral hearings to allow an appropriate response: see Beer, Public Inquiries, paragraph 9.41. Having said that, however, bearing in mind the approach which I have made clear that I intend to adopt to the facts, it should only be in the clearest of cases that the submission of further evidence should be contemplated. I ought to add that although further evidence might be read into the Inquiry record, I anticipate that the likelihood of consequential oral hearings to be comparatively remote.

    The second point to be made about the Rule 13 letters is to underline that responses will only be of value if they address the possible criticism. As foreshadowed in my ruling, I will shortly be issuing Rule 13 letters of a generic nature relating to the culture, practises and ethics of the press referring either to the press as a whole or to a part of or section within the press. I appreciate that it will be tempting for companies to respond by reference only to their own practices; each, however, has read or heard the evidence that has been put before the Inquiry and I expect responses which address the wider issues about the conclusions that I may reach generically. A response that says no more than, "Not me", will be of little, if any, value. Obviously, other letters may address possible individual criticisms: they will require an individual response.

    Finally, I wish to say something about the confidentiality of these letters. Rule 14 makes it clear that the contents of a warning letter are to be treated as subject to an obligation of confidence owed by each member of the Inquiry Team to the recipient and by both the recipient and the recipient's recognised legal representative to me. The purpose is not to keep the workings of the Inquiry secret: indeed, in relation to the recipients of any letter, the duty of confidence lapses when the Inquiry report is published. Rather, it is to recognise that which is set out in paragraph 10 above, namely that the criticisms outlined in the letter do not represent my concluded view. Thus to publish them as my view or as "emerging thoughts" (as some of the challenges which have I asked about during the hearings have been reported) would be to misunderstand the purpose of the exercise and misrepresent the position of the Inquiry. I hope that the duty of confidence will be observed by all. I will, however, wait to see.

    Further developments.

    In the ten months during which the Inquiry has received briefings, held seminars and been taking evidence, much has happened which is relevant to conclusions that may be reached as to the culture, practices and ethics of the press, and as to many aspects of the terms of reference. Events have transpired which have been reported and reports have given rise to complaint: a good example can be found in the evidence of Giles Crown dealing with the tragic death of an 11-year-old boy. In the same way that I wish to be kept informed about the progress of the police investigations encompassed by Operations Weeting, Elveden and Tuleta, so if there are further incidents that cause concern about the press that I can consider before issuing my report, I shall do so.

    Concerns have come to the attention of the Inquiry in different ways. The Inquiry has clearly attracted considerable public interest which itself has generated additional lines of inquiry beyond those initially identified. In addition, the Inquiry has been subject to a great deal of commentary. I have previously directed that the press cuttings in relation to the Inquiry will form part of its record. Without necessarily dealing with any explicitly, I will consider reports that in my view either support or undermine concerns that have been expressed in evidence; I will equally consider the validity of the comments that are critical of the direction or approach of the Inquiry. I add only that the collection of cuttings will continue until the Inquiry reports.

    Right. We were to start with Mr Sherborne, but I understand that he's suffered a family bereavement and in those circumstances we'll take a slightly different order. Do the core participants, Mr Jay, understand the order in which they are to speak and does it cause them any embarrassment?

  • I haven't checked with all of them.

  • I'll rise for a few minutes for you to do that.

  • Mr Jay, I gather that arrangements have been made for those core participants who were due to speak this afternoon for representatives from their clients to attend. I don't want to disrupt those arrangements, so I'll hear Mr Garnham, who was due to speak this morning, and then we'll have an early break and resume this afternoon.

  • (A short break)