Sir, your Inquiry now moves to its second module, and the police, in particular the Metropolitan Police, occupy centre stage.
By your terms of reference, you are inquiring into the culture, practice and ethics of the press, including, I quote, "contacts and the relationship between the press and the police and the conduct of each".
Pausing there, the conduct of the police falls under your scrutiny, but only to the extent that it meshes with the police's relationship with the press, not more generally. The terms of reference further enjoin you to consider making recommendations regarding, I quote, "the future conduct of relations between the police and the press".
So pausing there and thinking to the future, the primary focus of the evidence-gathering evidence will be directed to the recommendations you might be minded to make in your report, rather than criticising past conduct for its own sake.
The question also arises as to whether in this module you should be thinking about relations between the police and the public, and perhaps even relations between the police and politicians. It might be objective that your terms of reference do not specifically refer to these sides of the various overlapping triangles which appear to be in play. However, you are entitled to consider these interactions to the extent that they throw light on the core relationships spelt out in the terms of reference, and strict demarcation lines would be artificial.
Illuminatingly, Lord Blair, former Commissioner of the Metropolitan Police, has told you in his witness statement that he believes that:
"Relationships between police and politicians and police and the press must be seen as only two sides of a three-sided triangle, with the third relationship, that between the press and politicians, having an enormous impact on the other two relationships."
In many ways, the ground rules for this module of your Inquiry are the same as they were for module one. You have said in relation to module one that you are seeking to draw out a sufficient narrative which will enable you to say enough about past events in order to allay public concerns and to diagnose the essential problems, and to lay the ground for recommendations as to the future.
The principle objective here is not to reach findings as to who did what to whom. What you said in relation to module one equally applies to module two, because the constraints on you are, broadly speaking, the same. That is, the necessity for fine detail does not require by part 1 of the Inquiry as opposed to part 2, and in any event, the ongoing police investigation renders any close forensic examination of evidence, which also forms the subject matter of that investigation, undesirable.
It follows that we'll be looking as closely at the underlying material as we could and did over the 40 days in module one, but we will not be going further at this stage. That said, module two should not last as long as module one because the scope of your investigation it is not quite as broad.
What, then, of the subject matter of module two? Public concern hereabouts may be expressed in just one sentence: the relationship between the police and the media, and News International in particular, was, at best, inappropriately close and if not actually corrupt, very close to it. Furthermore, the nature of this relationship may explain why the police did not properly investigate phone hacking in 2006 and subsequently in 2009 and 2010, preferring to finesse the issue on these later occasions by less than frank public statements.
Module two will investigate this core issue in appropriate detail, subject to the constraints I have already mentioned. The key police witnesses will be called, as will the former and present Director of Public Prosecutions. A mass of relevant material has been disclosed by the MPS in judicial review proceedings brought by Lord Prescott and others and obtained by this Inquiry. This throws light on the MPS' contemporary thinking and decision-making in relation to the original Goodman/Mulcaire prosecution and its aftermath.
But the phone hacking issue is really only of interest to this part of your Inquiry to the extent that it may throw light on the bigger picture. In making that point, it, is of course, necessary to what that bigger picture might look like, as well as its key features. Here, as always, I should not be interpreted as pre-judging the issue or suggesting even tentative conclusions. I am simply throwing ideas out for future consideration.
The bigger picture cannot be fairly depicted without stating the obvious, namely that interactions between the press and the police are not inherently harmful. On the contrary, conducted in the right way, such interactions are advantageous to both parties, and ultimately to the public, in a mature democracy.
Putting to one side the manipulations which exist in totalitarian regimes, the Inquiry has already seen the distortions which are capable of ensuing when there is stifling of a free and frank flow of information between police and press in the McCann case.
The benefits of what might be described as a healthy relationship between press and police have already been clearly identified in some of the MPS witness statements provided to the Inquiry. For example, at paragraph 18 of his statement, the current Commissioner, Mr Bernard Hogan-Howe, says as follows, I quote:
"Keeping the media properly informed about policing and criminal matters is critical to the functioning of the MPS. First, through the media, the organisation is able to communicate its key messages regarding prevention and detection of crime.
"Second, a healthy relationship with the media can serve to increase the public's understanding of how the MPS go about the work of policing London.
"Third, it provides an important means by which the MPS can seek the assistance of the public in that work. Maintaining a regular and professional dialogue with the media greatly assists the MPS in providing information to the public concerning crime appeals.
"Fourth, contact with the media, properly handled, serves to increase public confidence in the police and to promote a greater understanding of MPS policies and initial actives.
"Fifth, it provides the means by which the public can scrutinise police actions and policies. It also allows police to test the persuasiveness of their strategies, policies and tactics."
Other senior police officers, present and retired, have spoken along similar lines. For example, Lord Blair, Commissioner between 2004 and 2008, explains that, I quote:
"The MPS is a hugely controversial and yet visible organisation surrounded by mythology and rumour."
Thus, in my words and not his, part of the rationale for open and frank interactions with the press, the latter acting as the clear conduit through which police messages are passed unmediated, is to demythologise and debunk.
In order to fulfil these objectives, the MPS has a directorate of public affairs, which employs at least 50 people. The Inquiry will be hearing in due course from the current director and press officer.
Yet there are obvious risks when individual members of two powerful institutions or groups of institutions come into contact, human nature being as it is. The model which the current Commissioner outlines assumes that both parties will always tend to act in a disinterested way. However, there's plenty of scope for at least the possibility of self-interest entering into the equation.
As so often happens in human affairs, the difference between healthy and dysfunctional behaviours does not have to be vast. By this, I mean at least two things: first, that it does not necessarily take many rotten apples to undermine the whole body politic, and secondly, that very often it does not take many adjustments in behaviours, objectively measured, to turn what is good into what is bad and vice versa.
More precisely, the potential for abuse on both sides of this bilateral equation is significant, leading to the risk, if not the reality, of unhealthy, overcosy and overly close relations between the two. The press, for example, will tend to want to obtain information from the police, which could form a new or different angle on events or policy, preferably one which will provide an exclusive. I'm borrowing here from Lord Blair's witness statement.
Secondly, the press will tend to seek to assist the editorial line of their newspaper by putting the most supportive interpretation of that line as possible on events.
From the perspective of the police, and putting to one side, at this stage, the risk of frank corruption, the issue has been arguably encapsulated in qualitative terms, although not necessarily quantitatively in paragraph 49 of Lord Blair's witness statement as follows. I quote:
"I believe that where the problem may have become significant is that a very small number of relatively senior officers increasingly became too close to journalists, not, I believe, for financial gain, but for the enhancement of their reputation and for the sheer enjoyment of being in a position to share and divulge confidences. It is a siren song. I also believe that they based their behaviour on how they saw politicians behave and that they lost sight of their professional obligations. The MPS did not have adequate defences against this behaviour, and in previous decades would not have needed it."
So we are in the realm of spin and the political dark arts, this last term being used not quite in the sense in which we saw it deployed in module one.
Put slightly less dramatically, we are back to the subterranean influences I mentioned when opening the Inquiry in November: the trade in political and perhaps even personal favour through largely covert exchanges.
Ultimately, the vice here is lack of democratic accountability and the perception, if not the reality, of personal gain. The noun "gain" in this context needs, of course, to be broadly interpreted and should certainly be apt to accommodate the enhancement of an individual's professional or personal profile.
The Inquiry will need to consider and investigate the different potential manifestations of this arguably overclose relationship, since it is only through examining these manifestations that the true nature of the underlying problem might be ascertained.
In no particular order, these manifestations are: first, the acceptance and conferring of inappropriate hospitality. The risks here are self-evident. Secondly, the giving and receiving of off-the-record briefings. Again, the risks here are pretty much self-explanatory, but apart from the obvious lack of transparency, the person doing the briefing will have an agenda, and each party will be hoping for, if not expecting, future favours.
Thirdly, the kindred problem of leaks, putting to one side gender and whistle-blowing.
Fourthly, the equally associated problem of the attribution by the press of police sources to stories. This is a term which is redolent of impropriety, or at the very least carries with it the possibility of inappropriate behaviour, either because the police officer has indulged in gossip or leaks, or because the term is, in truth, a cypher or fig-leaf for an invented story because the source does not in fact exist. It should also be recognised, as Sir Paul Stephenson makes explicit in his witness statement, that the so-called police source may not be a police officer but someone associated with the police, but from outside the MPS.
Fifthly, the press turning up at incidents or at newsworthy occasions because they have been tipped off by a police officer. Again, this is indicative of an unhealthy relationship existing between individual police officers and individual members of the press. Even if the deal here is only the sheer enjoyment which Lord Blair refers to -- and of course, it might be more than that -- we're talking about an inappropriate transaction.
I have listed five possible features or manifestations of what may be an underlying problem, but it would be naive to ignore more sinister possibilities. Corruption can, of course, occur in different ways. There is the relatively straightforward case of a journalist paying a police officer, whether or not using the euphemism of "police source", for information which ought to be kept confidential and would not have been freely provided. Some commentators have observed that paying a police officer is not necessarily unlawful. The consideration might be regarded as the reimbursement of expenses, for example, but the breadth of the terms, I quote, "any inducement or reward" in the Prevention of Corruption Act and similar terminology in the Bribery Act would lead one to advise anyone minded to test the boundaries of the law to think again. Such cases may be simple enough to articulate, but, as DAC Akers told the Inquiry earlier this month, they are not easy to prove since the documentary evidence may not be available and the journalist will always say that the source is entitled to protection.
Then there are the less straightforward cases of police officers being employed by press organisations after leaving the force. This may well be entirely above board, but one can at least visualise the possibility that parked favours are being called in.
Finally, and perhaps the most sinister and certainly the most difficult to prove, is the suggestion that the police turn a blind eye to known criminality on account of the unhealthy, over-cosy relationship I have already mentioned.
Some of these issues have been touched on in the reports of Elizabeth Filkin and Sir Dennis O'Connor and the Inquiry will be hearing from them in the near future. Their recommendations will need to be considered and tested.
The difficulty in bottoming out these matters and reaching the subterranean depths I have mentioned should not be ignored. Whistle-blowers are thin on the ground, even anonymous ones, and the Inquiry is not in a position to call any at this stage. That said, the Inquiry has been provided with information which may be used in questioning of witnesses.
I've already said that corruption is difficult to hunt and prove, and the problem is compounded by the existence of the concurrent police investigation. The irony of this has not been lost on the Inquiry team. Your terms of reference mandate an Inquiry into police conduct, but that Inquiry is precluded, at least in part, by the police's own, entirely proper, criminal investigation into police misconduct.
A further related irony has not escaped us too: the press, or, to be fair, sections of the press, complain that the criminal law should always be enforced, that the police have turned a blind eye to corruption involving both press and the police and that the full force of the criminal law should be visited on the police, but now that journalists have been arrested, the cry goes out from some quarters that the police are acting disproportionately. These ironies aside, the difficulties to which I have referred do need to be recognised and understood.
I have outlined the general issues with which we will need to engage in this module. I have not delved into the detail of the witness evidence directed to these issues, nor have I attempted to summarise it. I have merely set the scene for the witnesses whose evidence we will receive in due course.
However, there is one area which probably does merit further iteration at this early stage of module two, and this concerns the MPS investigation into phone hacking at the News of the World in 2006 and its aftermath. This issue is clearly relevant to your terms of reference, whether under paragraph 1(b) or 1(d) of part 1.
Operation Caryatid was started in December 2005 to investigate possible interception of mobile phones within the royal household. The investigation was carried out by unit SO13 within the anti-terrorist branch of the MPS. The head of that branch was Deputy Assistant Commissioner Peter Clarke, and the senior investigating officer was Detective Superintendent Philip Williams. From April 2006, the investigating officer was Detective Chief Inspector Keith Surtees, and the case officer was Detective Sergeant Mark Maberly. In each case, I have given the police ranks back in 2006.
Operation Caryatid soon established that Clive Goodman was accessing the voicemail of one member of the royal household. On 30 January 2006, Detective Sergeant Williams completed a decision log which makes quite interests reading. I quote:
"CG's [obviously Clive Goodman's] home phone is shown as calling JLP's voicemail direct on relevant dates to JLP's suspicions being raised and certainly within the right timeframe. The implications are quite far-reaching, because Vodafone have apparently not appreciated that this was possible, ie someone obtaining the separate unique voicemail box number of Vodafone service users, and literally phoning in to listen to voicemails belonging to other people without their knowledge and permission. If this is possible, it is likely to be far more widespread than CG, hence serious implications for security confidence in Vodafone voicemail and perhaps the same for other service providers."
"JLP" in this citation is Mr Jamie Lowther-Pinkerton, then private secretary to the princes William and Harry.
By April 2006, a number of potential victims within the royal household were identified -- on my reckoning, ten -- and in the course of a report to DAC Clark, Detective Sergeant Williams again noted that this practice was highly unlikely to be limited to Goodman alone. However, I quote:
"Taking this Inquiry forward would impact on core SO13 operations and the resource implications for a prosecution could be significant."
On 13 April 2006, Detective Sergeant Williams decided that only six of the potential victims would be notified of the position, for a number of reasons. These included his assessment that the purpose of the intrusion was journalistic and, I quote, "to print gossip as opposed to anything physically commercially interested".
He was also concerned that, I quote:
"Extending the circle of knowledge concerning what is still a highly sensitive covert inquiry runs the risk of the nature of the inquiry becoming more publicly known and possibly alerting suspects, thereby preventing the opportunity for offenders to be brought to justice."
The resource implications referred to by Detective Sergeant Williams in the context of SO13's core operations need hardly to be made explicit. The terrorist threat in 2006 remained at the highest level and must have been assessed as being at a different order of priority to voicemail hacking. At the same time, concerns about leaks and the need, no doubt, to protect the Royal Family, were militating against transferring this investigation out of SO13.
On 20 April 2006, Detective Sergeant Williams sought advice from the Crown Prosecution Service. He recognised that during the course of the investigation, further suspects might be identified, which might lead to additional lines of inquiry, but he also wanted to know whether it was possible to ringfence the investigation and keep it within the bounds of the royal household.
On 25 April, the CPS gave that assurance and also pointed out that in their view, the effect of section 2 of RIPA was that it was necessary to prove that voicemail messages were intercepted before being accessed by their intended recipient.
Whether or not this legal advice was correct may be somewhat of a distraction in part 1 of your Inquiry. Unless it with plausibly be said -- and it really cannot -- that the legal advice was influenced in some mysterious way by overcosy relationships with News International, the fact that it may well have been erroneous advice throws no light on the conduct of the police and the press within your terms of reference.
However, turning the issue on its head, consideration does have to be given as to whether the fact that this legal opinion was given, at least in the CPS's preliminary advice note, goes some way to explaining the apparent restraint limiting the scope of the prosecutions.
In May 2006, the police ascertained that Glenn Mulcaire was involved in the interception activity and that he was linked to Clive Goodman. At about that time, they also discovered that someone called Paul Williams was involved. They did not appreciate at that stage, although they did soon thereafter, that Paul Williams was an alias for Glenn Mulcaire.
In an important document dated 9 May 2006, there is in fact a typographical error on the face of the document which gives the previous year. Detective Sergeant Williams analysed the position to date and set out three options for consideration. Option one was, I quote, "doing nothing", option two was, I quote, "hand over the investigation to another police unit", and option three was to commence a formal investigation to, I paraphrase, prosecute those intercepting the royal household voicemails and, I quote, "in tandem with the above, establish whether or not there are evidential links to the potentially wider unauthorised intrusion/access" which has been suspected.
Detective Sergeant Williams recommended the third option over the short term and gave his rationale as follows:
"We have discovered a vulnerability that exists within the mobile telephone industry whereby unscrupulous people could intrude upon the privacy of the vast majority of the public through unauthorised access to voicemail. I suspect that the media may well be aware of this vulnerability, and there may be a host of people using this vulnerability for journalistic purposes. The Goodman connection is potentially an example of this, but the more sinister side would be that the knowledge could be equally utilised by criminals, whether that be in the general sense for terrorism or to threaten national security. Therefore, I believe that this matter has a significant public interest aspect to it, particularly in terms of safety and security and risk to life."
However, Detective Superintendent Williams -- I've realised that I have been inadvertently demoting him. I have said "detective sergeant" on occasions. He was detective superintendent at this stage and I believe he has since been promoted to detective chief superintendent. I must apologise for that. Detective Superintendent Williams also made clear that within two to three weeks, a more informed decision could be made, which might well bring back into play either of options one and two.
In mid-May 2006, the police were informed that two further victims outside the royal circle had been identified. Increasingly, it became clear that these were by no means the limit of the scope of voicemail interceptions. However, the police strategy was to concentrate on arresting and prosecuting Goodman and Mulcaire, and not, in the words of Detective Chief Inspector Surtees, I quote:
"... to delay that exercise in favour of identifying a multitude a victims to load a future indictment."
Furthermore, extending the investigation at this point to include other victims would also expose all victims, most of whom are not yet known, to continued exposure to this criminality."
By mid-July 2006, the police were in a position to prosecute Goodman and Mulcaire. The next advice from the CPS was to the effect that the case, which, at this stage, was limited to the royal household interceptions, was cogent and presentable. The CPS pointed out that the statutory conspiracy defence did not bring with it the same defendants which had been identified under section one of RIPA, in that the Crown did not have to prove that the voicemails were intercepted before being accessed by their are intended recipient.
At this stage, the police continued to take the view that there were good reasons for not expanding the scope of the prosecution to other victims, notwithstanding that they were aware that there may be a wider range of them. Resource considerations, the need for secrecy, the undesirability of continuing to expose victims to unlawful intrusion and the belief that arresting Goodman and Mulcaire would effectively bring this criminality to an end were the principle rationales.
On 8 August 2006, Goodman and Mulcaire were arrested at their home addresses and the premises of News International at Wapping were searched. The searches revealed, as is well-known, the Mulcaire notebook, extending to some 11,000 pages. A paper copy of the "for Neville" email was also found at Mulcaire's home address. A cursory review of the material was conducted that day and the potential scale of the unlawful activity must have been appreciated.
On 10 August 2006, Detective Chief Inspector Surtees wrote in a decision log:
"Having reviewed the materials seized at the address searches, it is clear that there is a wealth of sensitive documents relating to hundreds of individuals, including royal household, Members of Parliament, sports stars, military, police, celebrities and journalists. I have instructed that all copies of documentary exhibits remain locked in the exhibits officer's cage and the copies are not provided to our partners, as is normally the case."
On 12 August, the police began to put together what became known as the Blue Book, namely a list of those who were described as "potentially compromised". I have not counted up each and every name, and the copy of the book which has been provided has been heavily redacted, rendering a headcount somewhat difficult, but Mr Paddick has estimated there are 418 names extending over 24 pages.
A decision was made at about this time not to widen the investigation significantly, notwithstanding that one of the rationales for not doing so before had disappeared, namely that victims were not likely to be exposed to a significant harm.
Furthermore, there was now a wealth of evidence which tended to substantiate the potential criminal case beyond, as it were, the royal household. But in explaining the decision not to widen the investigation significantly, DAC Clark, in a witness statement submitted in the judicial review proceedings, states:
"We had considered undertaking an exhaustive analysis of the material that had been seized in August 2006 and I made the decision not to do so. First, given the wider context of counter-terrorist operations that posed an immediate threat to the British public, when set against a criminal course of conduct that involved gross breaches of privacy but no apparent threat of physical harm to the public, I could not justify the huge expenditure of resources this would entail over an inevitably protracted period. Instead, a team of officers were detailed to examine the documents for any further evidence and to identify potential victims where there might be security concerns."
Leading counsel and junior counsel were instructed to advise the CPS, and the police in conference, on 21 August 2006. A manuscript note of the conference is available, but it is difficult to decipher. The note records that the total number of potential victims was 200. Detective Superintendent Williams has confirmed that what looks like 800 on this document is in fact 200.
It is unlikely that counsel were asked to examine the underlying evidence, although junior counsel saw the Mulcaire notebook as part of the unused material. His review of that material would have been limited to the ascertainment of any possible exculpatory as opposed to additional inculpatory evidence.
It is, however, clear that it was decided at the conference that up to eight additional victims would be added to the indictment to reflect the extent of the criminality involved. If the evidence of Detective Superintendent Williams and Detective Chief Inspector Surtees is correct on this issue, the advice given was along the lines that the sentencing would not increase if more than six victims were added.
Finally, the note of the conference does make it clear that leading counsel considered the "technical argument on interception", ie the interpretation of section 2 of RIPA, and advised that it was preferable to proceed under that statute rather than under the Computer Misuse Act of 1990.
It follows that leading counsel could not have thought that the technical argument was fatal to the Crown's case in relation to the non-conspiracy charges involving the additional victims, those who were in due course to feature on the indictment under counts 16 to 20.
The case proceeded against Goodman and Mulcaire on that basis, and the rest is history. There were guilty pleas on 29 November 2006, and the two men received their prison sentences on 26 January 2007.
A number of issues arise in relation to the period August 2006 to January 2007, which will be explored with the relevant witnesses. These include, first, that the police developed a strategy for notifying at least some of the potential victims, but it has been accepted by the MPS that this strategy was not properly executed. For that reason, the MPS have conceded the judicial review proceedings in which that issue occupied central stage.
The MPS's breaches of public law duty in this regard are not central stage in this Inquiry, save to the extent that it might be argued that the police deliberately failed not to notify people in order to avoid a public furore, which might have called their whole strategy, including their relationship with News International, into question.
Secondly, the MPS were provided with extremely scanty documentation from those advising News International. The effect of the Police and Criminal Evidence Act 1984 was that it was not open to the MPS to obtain a search warrant against News International because journalistic material was involved, provided that the latter appeared to be co-operating. Whatever the rights and wrongs of the matter, the lack of fulsome documentation could not have the helped.
Thirdly, there was at least one victim who was contacted by the MPS, who made it clear that she did not wish to participate in any prosecution.
There is one very interesting email which I should draw attention to at this stage. It appears under tab 147 of the judicial review bundle on the internal numbering, page 739, on our URN numbering, last five numbers, 03655. I imagine it is going to come up on screen.