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

  • MR DAVID PERRY (sworn).

  • Thank you, Mr Perry. I'm sorry to interfere with your professional activities in Northern Ireland and I hope I haven't inconvenienced a court over there.

  • Not at all, sir. Thank you.

  • Your full name, please, Mr Perry?

  • Thank you. You provided us with a witness statement under the standard statement of truth dated 30 March of this year. Is this your formal evidence to our Inquiry?

  • First of all, please, about yourself. You are Queen's Counsel. You were, I think, made Queen's Counsel in 2006. Before then you were senior Treasury counsel and have practised at the bar now for I believe 32 years; is that correct?

  • Thank you. In your statement, you identify the materials you have looked at in order to refresh your memory in relation to events which occurred over five years ago now, but if I can take up the story, as it were, in paragraph 4, you tell us that in late July 2006, you were instructed to act as leading counsel in the prosecution of Mulcaire and Goodman, and your junior was Mr Louis Mably. Did you have any involvement in the case at all before July 2006?

  • Thank you. Were you aware in general terms of the advice which had been given by the CPS, principally through Ms Carmen Dowd, over the period April to August 2006, or not?

  • The first involvement in the case, so far as I can recall and from looking at the documentation, must have been, I think, the conversation that I had, or the meeting that I had with Ms Dowd on 2 August 2006, and I think it must have been at around that time that I became aware of the advice that had been given by the Crown Prosecution Service in general terms.

  • Thank you. You describe the basic chronology in paragraph 4, that you appeared at a plea and directions hearing at the Old Bailey in November 2006. The defendants pleaded guilty, as we know, and the sentencing hearing took place on 26 January 2007, and the Inquiry has received a transcript of those proceedings, which runs to some 200 pages.

    Can I go back in somewhat more detail in relation to the earlier events? We have your instructions, which were prepared by the CPS on 28 July of 2006. They are under our tab 20. You may have them available separately. The page on our unique referencing number system is 18392. Do you have those instructions, Mr Perry?

  • Yes, I do, Mr Jay, thank you.

  • I just want to identify what you had available. You had a review of the case, you had an advice file, then the email from Ms Dowd of 25 April 2006, which we'll have occasion to look at. Mr Bristow, he was the expert witness, wasn't he?

  • And the Vampire data and the voicemail message data, that was the detailed information which indicated when voicemails were accessed by Mulcaire, was that your understanding?

  • Can I invite you to look towards the bottom of the next page, our page 18393, the paragraph beginning:

    "The Vodafone evidence will form the strongest evidence against Goodman and Mulcaire."

    Are you with me, Mr Perry?

  • "From the data provided, if it can be proved that on four occasions when messages came in to JLP's voicemail system, these were accessed before being listened to by him (on two occasions by the Goodman landline and on two occasions by Mulcaire's business line), these then could form the basis of substantive offences under section 1 of RIPA."

    So here the author of the instructions is expressing a view as to the true construction of section 1 and possibly section 2 of RIPA, which we might call the narrow construction; is that correct?

  • Then we can see on 18394, three lines down:

    "However, my initial view is that offences of conspiracy (between Goodman and Mulcaire) to commit section 1 RIPA offences and section 1 Computer Misuse Act offences, may better reflect the alleged criminality involved and enable a more comprehensive case to be presented."

    In relation to the conspiracy offence under RIPA, the narrow view of the law would not necessarily be relevant. Is that correct or not?

  • That's absolutely right, Mr Jay, yes.

  • Thank you. Of course, the instructions are self-evidently setting out Carmen Dowd's view. She was inviting you to apply your fresh mind to the issues, presumably; is that correct?

  • I think what is also relevant in this bundle is the email which followed the meeting which took place with you. Of course, it's not your email, it's Carmen Dowd's, so this is being filtered through her mind, not directly through yours, but it's at page 18403, and you'll see it's Carmen Dowd to various police officers, following the conference which took place in your chambers. Do you see that?

  • I just wanted to check that insofar as you do have a recollection of the conference, and one would plainly understand it if you don't, it probably chimes with any recollection you have. She says that she's had the chance to speak to you:

    "The issues we discussed were around proposed charges and the issues of seizure of material ...

    "The meeting was very useful and we concluded that in essence the alleged criminal activity alleged against the suspects does give rise to the offences I have outlined in my previous correspondence. We have briefly discussed before the possibility of arguing that what we have termed our Computer Misuse Act offences might fall to be considered as RIPA offences -- that the issue had not definitively been argued. I was reticent about arguing the point in this case. However, having considered the matter with counsel we have concluded that we could properly argue the point -- and in any event nothing would be lost as we already have the four main clear RIPA offences (if not more I hear!). We would therefore propose sample substantive offences to reflect the period of offending plus the four main offences under RIPA."

    Was she saying there that you advised her that the case could be brought under RIPA, in other words on a broader interpretation of sections 1 and 2 of RIPA, than the interpretation she, Carmen Dowd, had previously believed was correct?

  • I think that's right, Mr Jay. I think there were a couple of aspects to this. I think the first was that if the narrow view of the RIPA offence was to be pursued, could you nevertheless argue that the conduct complained of amounted to a Computer Misuse Act offence? My own view was that we could take the broader approach to the RIPA offences and in any event with the conspiracy the point didn't really matter, and I think, doing the best I can, I think my view also was that if we use both RIPA and the Computer Misuse Act, that was a confusing way to present the case. We really had to be clear about what we were presenting to the court or to a jury, if the matter were to be contested, and on that basis, the RIPA Act offences more accurately reflected the conduct that the prosecution were saying the suspects had at that time engaged in. So I think that's the way I'd answer your question. I hope I have answered it --

  • Yes, that is a clear answer, Mr Perry. There were really two points. First of all, you had evidence in the four main substantive offences which established in any event that the interception was before the true recipient had accessed the email, and this is referred to by Ms Dowd in the paragraph we've just been looking at. Secondly, in relation to the conspiracy charge, the distinction between the narrow and the wide construction of sections 1 and 2 of RIPA was not relevant because you would have the ingredients of conspiracy, even if the wide view was incorrect. Does that broadly summarise it?

  • Yes, exactly, thank you.

  • I think there were also concerns, maybe borne out of previous experience, that juries had sometimes struggled with the Computer Misuse Act, and therefore it was more palatable strategically to go under RIPA. Might that be broadly speaking right?

  • Yes. I think broadly speaking that's correct.

  • There's one other point on the email. The third paragraph, and you've referred to this in your statement, at the end of it you say, or rather Carmen Dowd says:

    "Although not able to provide a review decision until the evidence has finally been submitted, counsel does agree with me that the data provided does present a strong case thus far."

    But may I ask you what the review decision is a reference to, please, Mr Perry?

  • My understanding would be that that would be the decision as to whether or not the evidence provided a realistic prospect of conviction. As everyone, I'm sure, knows, the Crown Prosecution Service has to apply its own code of test, and my recollection, assisted by the instructions to counsel, is that at the time of these discussions, we did not have the evidence that was to form the basis of the prosecution case as subsequently presented to the Crown Court.

  • What you did have was information that technically the phone companies could link up some calls, which gave you the basis for concluding that there was a strong case of interception. Of course, the other thing you did not have then was a single piece of paper from either of those who were going later to be arrested. You were doing this entirely on the basis of the police investigation through the mobile phone companies and through the victims. Is that fair?

  • That's correct, yes. Thank you, sir, yes, that's correct.

  • You also discuss in general terms, because the nature of the discussion was necessarily in general terms, given the paucity of evidence you had, the reach of the PACE powers, particularly under section 1, in the context of journalistic material. Do you recall that, Mr Perry?

  • Yes, I do, Mr Jay, thank you.

  • The email records some of the obvious constraints there are in relation to seizing material which might include journalistic material, since, on my understanding of the law, one first of all has to engage the person being searched to obtain their consent, and it's only when they don't consent that you go for a production order. In crude terms, does my summary of the law reflect what the law is?

  • Yes, yes, I think so. There may be nuances to that, but I think that's right.

  • I think I've squeezed all the nuances out and given a very crude summary, but I hope I didn't cause you too much consternation. Could we move forward then to the next conference, which was a bigger, as it were, more considered conference inasmuch as the police officers were there and of course the material had been obtained from Goodman and Mulcaire, and inconclusive interviews had taken place. That conference took place in your chambers.

    We have two notes of the conference. There's the notes which Mr Williams took, which I know you've seen, which is in our master bundle, as it were, in file 3, tab 131. But there's another note, which is your own note, I believe -- you may be in a position to confirm this -- which is under tab 41 of the bundle which has been provided to you for the purpose of this hearing.

  • Do you have both those notes, Mr Perry? May we be absolutely --

  • Mr Williams' note is a note you've only seen in the last few weeks; is that right? Or did you see it in 2009/2010?

  • To be clear, the first time I saw the note prepared by Mr Williams was when I was provided with it for the purposes of preparing my witness statement for your Inquiry.

  • Thank you. That's when I emailed it to you about three weeks ago. But the notes which are your notes -- first of all, may I confirm that they are your notes, at tab 41?

  • Yes, I can confirm that the points for discussion, with the manuscript annotations, at tab 41, the manuscript annotations as they appear on that page, that they are my annotations in my handwriting.

  • Thank you. So we can just identify another document, a document which has come out more clearly in the photocopy, about two or three pages further on, I believe are junior counsel's notes?

  • Yes, that's Louis Mably's handwriting and that goes over in my bundle over three pages.

  • Thank you. The page reference for your note on our system is 18605. You'll probably want to use your notes, because they were made contemporaneously, as being your best guide to what you said at the conference. Presumably you'd agree with that, Mr Perry?

  • You say in paragraph 12 of your witness statement -- this is clear from all the evidence we've seen -- that you believed that "the essential matter on which we were asked to advise concerned the charges and the shape of the case."

    You say:

    "I was of the view that offences of conspiracy to commit unlawful interception were appropriate. In relation to the latter, I was concerned to keep the case within manageable proportions."

    If you look at your notes, we can see on the left-hand side, about halfway down the page, the reference to "180 names". Do you see that?

  • These were 180 targets of interception, although was it your understanding that in relation to perhaps very few of them, there was evidence to the criminal standard of proof that interception had taken place, particularly on the narrow view of the law?

  • Yes. I think the position, doing the best I can to recall, was I'm not sure, first of all, whether we had evidence in relation to other individuals, and I think that what was being discussed at this stage was that the case went wider than the three original victims, but quite how wide or whether there would be evidence to establish how wide was not yet or had not yet been determined.

  • To be clear, at the time you were advising, you weren't shown any evidence in relation to these 180 names; was that correct?

  • I don't believe that I was.

  • Your advice was, in line with standard practice, that you would take a sample number -- you deal with this in your statement -- say five or six individuals, as representative of the wider number of individuals whose voicemails had been intercepted. I've asked a bit of a leading question there, "standard practice". Could you explain in your own words why you don't go for all 180? Why just take a sample?

  • Well, I think the essential point is that in presenting a case or preparing a case, the most important consideration is to keep the case manageable and for the presentation of the case to be simple for all concerned, defendants and courts and juries, and by taking a sample of victims and including them within an indictment, you get a picture of the criminality and it means that the sentencing court in the event of a conviction can impose a sentence that reflects the scope of the criminality and it also means that the case can be prepared more efficiently, with more effective use of resources. So I think that's the thinking behind it as I understand it.

  • But the critical phrase in that answer, Mr Perry, is that you have to reflect the scope of the criminality, isn't it? You have to make sure that while keeping the case within bounds, you reflect the broad totality of the alleged criminality and not just a section of it. Of course, you're dependent entirely upon what you're told, but that's what you would aim to do?

  • That's what you would aim to do, and I think in this case, when we did end up with further counts on the indictment, as I understood it, those counts reflected the individuals from whom we were able to get statements, because, as I understood it, it proved not to be possible to take it further in respect of all those who were possibly the subject of interception, because it wasn't possible to obtain statements from them.

  • Thank you. If you look at your note as well, under the heading "Scope of case", you see the reference under (c) to "Other potential defendants" and then you've written in in manuscript: "encouraged by others". So the piece in manuscript relates to something which emerged during the conference, did it?

  • I think that must have been -- I think that must have been me explaining what I was really driving at, which was whether there were other potential defendants on the basis that encouragement would be a sufficient basis for secondary party liability, and I think that that's what we were exploring at the time, or certainly what I was exploring at the time of the conference.

  • Can I be clear, exactly what question did you ask the officers in relation to the possibility of other potential defendants? Can you recall?

  • My recollection of this is that I asked whether there was any evidence implicating any other individual employed by News International in the criminality that we were looking at in this particular case.

  • Your note of 14 July 2009 refers to journalists and editors. Do you think you asked that question specifically or not?

  • I don't think I would like to say that I necessarily expressed it in precisely those terms, but I was concerned to discover whether this went further than just the particular individuals with which we were concerned and I think I was conscious in my own mind that the question had to be whether it was journalists to the extent of the editor.

  • Did you ask the question through your own forensic curiosity, as it were, or did you ask it because you'd seen any evidence which suggested that others might be involved?

  • First of all, I hadn't seen any evidence that other individuals had been involved, but I think I was also basing the question on my own, I think, knowledge and experience of journalists and newspapers. I have friends who are journalists, and I was trying to establish whether there was something that -- or whether there was some evidence that went further than what we had.

  • Okay. What answer did you receive from the police officers in riposte, as it were, to the question you put?

  • We were informed that there was no such evidence. I can't recall which officer gave that reply. I think, in fairness to everyone involved in the case, I think it's right to say that this was still at a time when the information that we were obtaining was continuing to develop.

  • Yes. Is it possible that there were speculative discussions along the lines that there might be circumstantial evidence or inferential evidence, but at the moment we have nothing concrete, words to that effect?

  • It's certainly possible, although I have no recollection of it, and I think from my point of view I would have been looking to see whether there was a possibility of a case, rather than whether there was something that was speculative. We could all speculate.

  • But many cases are built on circumstantial or inferential evidence.

  • That's not a mistake you would make.

  • But it depends on the combination of circumstances and the strength of any evidence, but certainly in the context of looking at the material that we had in this case and the evidence available to us, I certainly don't think I saw anything that would have enabled me to present a case in any -- on the basis of any inference or circumstantial evidence.

  • Can I ask you now to look at paragraph 14 of your statement. This is the reference to a production order, which of course you touched on on 2 August, and we understand the law. Mr Williams' note reads:

    "On scope of case at the moment pursue production order s1.

    "-- see what it shows.

    "-- if identifies another defendant -- consider."

    We see, Mr Perry, your interpretation of that, but I've been asked to put this to you, that the note by Mr Williams clearly suggests that when the question whether there might be other defendants was raised, the answer given was to in effect go on investigating and then reconsider, and that was the whole purpose of pursuing the production order route. Would you accept that?

  • Well, I think I take it in stages, because I think the first thing was that we were looking at the possibility of a production order, and my recollection is that we were looking at it for two reasons. First of all, whether there was a basis for obtaining evidence generally, which I think I deal with in my statement, and secondly, whether we could get a production order in relation to any evidence concerning payments made by Goodman and Mulcaire.

    Clearly, in any case, if in the course of pursuing your inquiries or in the course of the police pursuing their inquiries, the evidence changes, then that may require other decisions to be taken. And I don't think anyone's mind would have been closed to the possibility of decisions having to be taken, depending upon evidence that became available.

    I hope, Mr Jay, that that expresses my view. I'm not sure if I've actually answered your question, but --

  • I think you have. I think you're making clear, Mr Perry, that the door was at least being kept open to the possibility of evidence in relation to other defendants emerging, subject to whatever a production order under section 1 might unearth. Is that broadly speaking the position?

  • I'm asked to put this point to you: do you think that the production order, which was drafted by Mr Mably but never executed, was drafted on the basis that there was at least some circumstantial evidence which existed on 21 August 2006, which indicated that a further line of inquiry was appropriate?

  • I'm not sure about that, and, I mean, my understanding was that this was -- yes, the door had been left open, and yes efforts were going to be made to attempt to obtain a production order, but I don't think I would go so far as to say that it was done on the basis that there was circumstantial evidence with another line of inquiry open to the police.

  • Okay. At the conference, there was some discussion as to whether the narrow or the wider view of the law was correct. Do you recall that, Mr Perry?

  • I don't have a clear recollection of it, but I think inevitably it must have been discussed because it dictated the shape of the case and the approach, and the fact that we were not proceeding under the Computer Misuse Act as well, I think there must have been an explanation as to why we were proceeding as we were, and I see that Mr Williams' note records some discussion in relation to that, and I'm sure that he's got it -- I'm sure that that is an accurate reflection of what was discussed.

  • It's quite terse on the answer, as it were, although it identifies the technical argument which we've been discussing. Could I invite you, please, to look at Mr Mably's note and see whether that gives us any further clues? It's on the second page of his note.

  • Which is going to be in our bundle, I think it's going to be about page 18610. You can see what he's written down:

    "Charges, section 1 RIPA: see section 2(7) and before message listened to."

    And at the bottom of the page, although it's not very clear, there's a reference to Lord Woolf's case of NTL Group Limited, paragraph 19.

  • Again it's possible to subject that to at least two possible interpretations, but I think what one core participant wants me to put to you is that you may have advised that the narrow view of the law was correct. Do you think that's possible?

  • Well, I'm confident that that was not the approach that we took because it wouldn't be consistent with the terms of the indictment that was originally settled, and I think that the view that Mr Mably and I took was that what Lord Woolf had said in the Ipswich Crown Court case certainly provided an arguable basis for someone to contend that the narrow view was correct, but we thought that we should proceed on the broader view, and if the point were taken against us, we could meet it in a number of ways, because it was about making sure that we didn't lose the case overall, and we could meet it in a number of ways.

    First of all, we could say that that was not in fact what Lord Woolf had decided, and even if he had decided it, it wasn't necessarily for the purpose of his decision in that case, and the court was free to depart from it.

  • And in any event, the conspiracy charge could outflank any such argument.

  • That's the point, isn't it, Mr Perry? That's the point, isn't it? That actually this couldn't be a sole offence, there had to be some other people involved. He's not doing it for fun, and therefore you do have a conspiracy allegation which blows this point into very nice criminal law, but of no practical impact on this case at all. I mean, I'm delighted to analyse the dicta of Lord Woolf at any stage, but it's just not relevant, is it?

  • -- can I just -- counts 16 to 20 were not put as conspiracy charges, were they? They were put as the substantive offence solely against Mulcaire, weren't they?

  • So unless the charge was going to be reformulated as Mulcaire and others unknown, the point as to the narrow or broad view of section 1 and 2 of RIPA was relevant to counts 16 to 20, wasn't it?

  • Yes, I think there are two points, Mr Jay. First of all in relation to the conspiracy, the narrow point is not so relevant, if relevant at all. In relation to counts 16 to 20, that demonstrates, to my mind at any rate, that we did not take the narrow interpretation to be correct, because I'm not sure if in relation to counts 16 to 20 there was any basis for saying that the message had been listened to by an interceptor before it had been heard by the intended recipient.

  • Yes. Can I just ask you this, though, in relation to counts 16 to 20: did you at any stage think, "Well, Mulcaire must have been acting in concert with one or two others, or maybe more than one or two others; we don't know who they are necessarily, but they must have existed, therefore there was a conspiracy"?

  • I mean, I -- I'm sure the thought would have crossed my mind as to what the possibilities were, but in terms of the evidence that was available, as I understand it, the evidence available was that Mr Mulcaire, on occasions, would obtain information and sell it on.

  • Having obtained it through the interception.

  • Okay. Did you at any stage, Mr Perry, look at the Mulcaire notebooks and see the existence of what we're calling corner names?

  • I think I must have seen some of the notebooks, because I think some of the notebooks formed the basis of the exhibits that were deployed in the Crown Court proceedings, and I think some extracts may have been included in the bundles that we prepared.

  • Your recollection is --

  • But I'm not sure if I -- sorry.

  • You did, actually, Mr Perry, because it's come back to me from the transcript, that when you opened the case to Mr Justice Gross, you referred to Clive as being on the corner names relevant to counts 1 to 15. Do you recall that, now? That's Mr Goodman, of course.

  • By the time we get to the plea and directions hearing, and in particular the sentencing hearing, did you see any of the paperwork which related to counts 16 to 20?

  • I must have seen the evidence and exhibits in relation to counts 16 and 20. Precisely what I saw I cannot now recall, but I would have seen the statements that we had. I think we had a number of schedules as well in relation to the particular interceptions and individuals and I would have seen the technical materials or the evidence, technical evidence, in relation to that as well.

  • Yes, because in terms of the procedure, the papers had to be prepared for trial, and you weren't to know, indeed you didn't know until shortly before 29 November 2006, that you were going to get guilty pleas. Is that right?

  • So the evidence against Mr Simon Hughes, for example, must have been prepared on the basis that there might be a trial, and you therefore saw it. Is that correct?

  • Yes. I'm confident that that's right.

  • But can you not recall seeing relevant pages from the Mulcaire notebook, which included corner names, unique voicemail numbers, PIN numbers and the rest of the paraphernalia which was part of his modus operandi?

  • I'm sorry, Mr Jay, I can't recall that, but if you -- if there is something that you want to show me and ask me whether I saw a particular document, I'm perfectly happy to look at it and give you my best evidence in relation to that.

  • There is one document from Mr Surtees, which I think you might have seen because it's part of the material which is under tab 20, which is the tab which included your instructions. I hope it's paginated in the same way. Look at page 18434. This comes to light on 10 August 2006, so you certainly wouldn't have had it on 2 August, but you might have had it on 21 August.

  • It's not part of the instructions, Mr Jay, because the instructions in tab 20 are 28 July.

  • So they've just been collected together. This is an internal police document.

  • Yes. I know it's difficult at this range of time, Mr Perry, but do you think you might have seen this? It refers to what in general terms Mr Mulcaire had been doing, and the documents including details of home addresses, business addresses, PIN numbers, passwords and everything else.

  • May I just check, Mr Jay? I'm looking at a document 18434. It's manuscript.

  • And it's a decision log that begins:

    "It is clear from the documents recovered ..."

    Have I got the right page?

  • That's the one, yes, Mr Perry.

  • It's obviously part of a much larger document.

  • Thank you. It looks to me -- I may be wrong. It looks to me as though this is a police decision-making log. I would not have seen an internal police log of this sort.

  • As a matter of course.

  • I'm not going to ask you to speculate as to what you might have seen in relation to counts 16 to 20, save, of course, as a matter of practice the papers would have been prepared for trial and whatever was necessary for the trial would have been sent to you. I think we can agree that much, Mr Perry?

  • There's one document which has acquired a certain degree of controversy. It's the "for Neville" email. Can you help us with your best recollection as to whether you saw that or not?

  • I -- I don't have a recollection of seeing that, I'm afraid.

  • We know it was in the unused material. We know that it was capable of being relevant to the count on the indictment which related to Mr Gordon Taylor, but that doesn't prove that it was within the case papers for Mr Taylor's case, but there's one document which may throw light on this, and it's tab 89 in the files which were provided to you for the purposes of this hearing. It's a note of a conference between the CPS and the MPS on 1 October 2010. If you look at the second page of the note, it's going to come up, the unique reference number, the second page is 18749, it's items 3.10 and 3.11. Item 3.10 says this:

    "AH [AH is Mr Husain] stated that thought Thurlbeck is referred to in the Neville email, this does not of itself make him liable or guilty in any way.

    "SC [Simon Clements] also agreed, stating that David Perry QC looked at this in the original investigation and stated that if they pursued the element of the email and its contents would not have had any real effect as it had no real evidential value."

    There are two points there, Mr Perry. First of all is whether you think you might have seen the "for Neville" email. To be clear, it's highly unlikely you would have seen it on 21 August 2006. If you did see it, it would have been later on when the Taylor papers were being prepared. You can see that the assertion is being put forward there that you did see it. Do you think it's possible?

  • I'm just looking to see what Simon Clements was saying precisely in relation to this. My own feeling is that I didn't see it.

  • Mr Clements wasn't involved in -- was Mr Clements involved in the original investigation?

  • If he wasn't, then he could only get this if there was a piece of paper that said something like this.

  • Or piece of information. We haven't seen any document which substantiates that. It may be he was simply told that by someone who was involved in the original investigation or it may be that people's wires are crossed and they're just wrong, you didn't see it as part of the original investigation. That's probably as far as we can take that issue, isn't it?

  • The second point is the evidential value of it, that what is attributed to you there is in fact correct to this extent, that we know from later opinions you wrote in 2009 and 2010 that that was in fact the view you had as to the evidential value of the "for Neville" email taken in isolation, wasn't it?

  • Yes, and I wonder whether that sheds light on this, because I think that when I was asked to look at this much later, I think Simon Clements was involved in that stage of the inquiry, and I wonder whether this is actually a reference -- I wonder whether this is an elided reference to the later investigation and the views then expressed.

  • Yes, I can see that, Mr Perry, that they may just be referring to the wrong period of time. Of course, when you looked at the "for Neville" email or were asked to assess its significance, were you asked to do so in the context of any other evidence, for example the corner names in the Mulcaire notebook, or were you just asked to consider it in isolation?

  • It was just in isolation. And also, I think -- it was in isolation, and I think it was also difficult because things were -- I think we were trying to look at things very quickly for understandable and perfectly reasonable reasons, but I think I was just asked to look at it in isolation and give a view.

  • Yes, I understand. At the conference of 21 August 2006, do you recall any discussion about the strategy for notifying victims?

  • I can't -- I can't recall the precise details in relation to that, but doing the best I can, I've tried to think about this, and doing the best I can, I think that would have been a matter for the police, and I may say, I think the police officers were trying to do their best and were sensitive to the difficulties that this case threw up, but I think, in answer to your question, Mr Jay, that anything to do with the strategy on that aspect of it was not really -- I didn't see that as being a criminal law question.

  • No. It was more a public law question, engaging Article 8 considerations, but I see where you're coming from.

  • I think the last topic which was discussed at the conference was the issue of confiscation under the Proceeds of Crime Act, and I can boil it down to this: your advice was that the focus should be on the cash benefit to Mulcaire, which was £12,300, rather than any greater sum which he received under his continuing retainer with News International. Is that correct?

  • I think -- yes, if you boil it down to that. I think at the time of the conference, looking at Mr Williams' notes, I don't think we had all the information at that point, because there's a reference to "work out a benefit figure later", and I note from the documentation that you -- to which you drew my attention, there was the statement of information, the conventional statement of information provided by the prosecutor in the Proceeds of Crime Act case, and there was also a defence response to that, in which the defence stated that Mr Mulcaire had received payments under the retainer for legitimate work and they were contending that the payments in respect of the interception were those he received under the pseudonym of Alexander, which amounted to £12,300, and I think the conclusion by the time of the hearing before Mr Justice Gross was that I took the view that that was the appropriate approach to take.

  • I think that was my decision.

  • I understand, Mr Perry. I'm asked to put this to you, really on behalf of the police officers, that they were trying to argue for a more substantial sum based on the monthly retainer, because they thought it was part and parcel of the same criminal enterprise, but you, as it were, advised them that that couldn't be done or words to that effect. Again, is that what might have happened or what did happen?

  • Well, I think the position in relation to the Proceeds of Crime Act statement is clearly the police were contending for a higher benefit figure, and that's something for which they were contending, but the difficulty with that approach it seemed to me as a matter of law is that the question of benefit for the purposes of confiscation is a difficult issue. It depends upon whether a person who commits a criminal offence obtains property as a result of or in connection with their offending, which sounds rather simple, but it in fact conceals a degree of complexity, and the short point seems to me to be this: that if you do legitimate work and you're paid for that, it's difficult, it seems to me, to argue that you've obtained that as a result of or in connection with your illegitimate, illegal work.

  • Now, I guess we could have argued this and spent several days in the Crown Court and possibly gone to the Supreme Court to have the Supreme Court tell us who was right or who was wrong, but in the end I, in response to the defence statement, took the view that the more conventional and appropriate legal approach was the £12,300.

  • Mr Perry, you do not need to convince me at all about the state of the law in relation to confiscation, and we need not spend any longer on it at all, but there is a question, which is this: does it hide what was a subterranean concern that although, for reasons which you've explained, you'd chosen six specific counts and a conspiracy, that underneath it all there was a far greater degree of criminality going on here in respect of which a lot more money had been made?

  • Well, all I -- there were only a number of things I could go on. I could go on the documentation available to me and what I was told, and also, of course, I could go on what the defence were contending in their confiscation statement. And the point that was being made by the defendant's lawyers was that Mr Mulcaire had conducted legitimate assignments, for which he had been paid, they were itemised --

  • Mr Perry, I'm not challenging you. I'm not in any sense suggesting that the approach which you took wasn't entirely appropriate in the context of the case. The only question I'm asking is whether you had the feeling -- and it may be you can't remember -- that actually there was a concern that there was a lot more going on here than actually the indictment reflected. You may not have seen any evidence to justify it, you didn't go trawling through the bin bags, I'm not for a moment suggesting you did, but I'm trying to get a feeling of what was going on at the time. That's all.

  • All I can say is that the question that I asked at the conference on 21 August 2006 was prompted by a feeling that there was possibly something more to this, but that's a feeling you very often get in criminal cases.

  • Okay. What happened next is that Mr Mably carries out a review of the unused material, and as you make it clear, that's not with a view to seeing whether additional defendants are involved, but whether there is material which is capable of being exculpatory of existing defendants. Can we deal with it in this way: did Mr Mably draw anything to your attention which caused him concern as to whether the extent of the criminality in fact went much further than was being put to you by the officers?

  • No. So far as I can recall, he did not.

  • But you wouldn't expect him to, would you, Mr Perry? The exercise of reviewing unused material, which, speaking for myself, I have done over many days in certain cases, is specifically that contained within the CPIA, within the legislation. It's not doing a review of what the police have done for the purposes of investigation of crime. It's simply trying to be fair to a defendant, to ensure that there's nothing that on the face of it undermines the case you're running or assists a potential defence case, and that's the long and the short of it, isn't it?

  • That's exactly right, sir, yes. And that was exactly the process that he was undertaking at this particular time.

  • Okay. When we get to the sentencing hearing -- you deal with this in paragraph 18 -- counsel for Mulcaire said, and this is referred to in the transcript, that the information relating to counts 16 to 20 would not have been passed on to Mr Goodman -- pausing there, he was the royal editor after all, he wouldn't have been interested in this material -- but to the same organisation.

    So that was Mr Mulcaire's own instructions to counsel.

    Then Mr Justice Gross said:

    "You had not dealt with Goodman but with others at News International."

    Mr Justice Gross was basing that statement on what he'd been told by Mulcaire's counsel, and I suppose one might add this: a bit of common sense added in. Would you accept that?

  • We can move the clock on in time to 14 July 2009 when you prepared a note, quite a short note, it's at tab 28 of the DPP bundle, where you set out your recollection of what you were told at the conference. It's our page 18304. You say this:

    "We did enquire of the police at a conference whether there was any evidence that the editor of the News of the World was involved ... We were told that there was not (and we never saw any such evidence)."

    Now, the clause in brackets, does that relate merely to what you saw on 21 August or does it relate to what you saw at all material times until 26 January 2007?

  • That refers to what we saw at all material times.

  • Thank you. Then the same point in relation to journalists:

    "We also enquired whether there was any evidence connecting Mulcaire to other News of the World journalists. Again, we were told that there was not (and we never saw any such evidence)."

    Can you recall why you were asked to produce this note?

  • My understanding is that this was something that we were asked to prepare at the request of the Crown Prosecution Service at a time when the Crown Prosecution Service were looking again at the prosecution decision-making and strategy, and I think that a good deal of effort was being put into the attempt to reconstruct what had happened in the case and what had been known to the individuals, including myself and Mr Mably, and I was trying to do my best to assist in the Crown Prosecution Service attempt to recreate the state of mind that existed in 2006/2007.

  • Thank you. On 20 July 2009, you gave an advice which is described as a draft advice. It's tab 52 of this bundle. To be clear about it, this was an advice which you were asked to do overnight. Do you recall this one?

  • I have a recollection getting a call some time late in the course of a day when I was -- I think I was already obliged to or I was in the process of preparing something else, and I was asked to do something at pretty short notice.

  • Yes. The something else you were preparing was a case in the Court of Appeal the following day -- actually, it was on 25 July, I think, but you did this overnight and you fitted it in, as it were, and we can see that the advice runs to eight pages, so it took you some time to type up.

    The view of the law which you took in this advice, if I can take it shortly, was the narrow view of the law, and it suggests that that might have been the advice which you gave to the police on 21 August 2006. There are really two questions built into that, but can you take them both individually, please?

  • Yes. First of all, I think the position in relation to this was that I was asked to do this at a time when I didn't have access to any of the papers in the case, but I was provided with a document prepared by Detective Chief Superintendent Williams, and I think this note or draft note was largely dependent upon what Detective Chief Superintendent Williams had said, and if I did in this document give the impression that the narrow view had been adopted, then that is incorrect, and I think if it is incorrect, it's because both Detective Chief Superintendent Williams and I, our recollections were at fault. I don't criticise Detective Chief Superintendent Williams at all. He, of course, had been receiving advice throughout the period up to August, and it was quite a technical issue of law, but I'm confident that we did not take the narrow issue --

  • -- of the law. And the moral of the story is: don't do advices overnight if you don't have the papers.

  • That's certainly right, Mr Perry, but you do say, and I've been asked to draw this to your attention, in paragraph 15 of this advice, that not merely did you find DCS Williams' note to be extremely helpful:

    "... it certainly accords with such recollection as I do have."

    Do you see that?

  • And the other --

  • Sorry, please continue.

  • No, I was just going to say that I did find it extremely helpful, and looking at it, I took a view, I had no reason not to, and I think now if someone were to say, two years later or however long later, that this is the position, then that's an error that I think is probably easily made, but on more considered reflection, and having looked at the indictment and the material in more detail, I am confident that the narrow view was not the view that we took.

  • Yes. If you look at your advice which was given the following year, on 13 September 2010, under tab 80, which is page 18696, by which time you did have your papers, you reverted, as it were, to the advice you gave on 21 August 2006.

  • The summary of your advice is paragraph 28, where you said:

    "It was a difficult point, tenable arguments either way."

  • But you're entitled to continue to say that counts 16 to 20, which weren't conspiracy charges but substantive charges, could only have been advanced on the basis that you thought the wider view was tenable. That of course is right, isn't it?

  • On the first advice we looked at, the 20 July 2009 advice, you expressed views about the evidential value of the "for Neville" email, which I think we've already addressed as a discrete issue, because that was the issue concerning the DPP, who asked you to give the advice.

    Can I just look at some points you make between paragraphs 29 and 32 of your second advice.

  • Where you say:

    "In addition to the fact that the prosecution's approach to section 2 of RIPA 2000 did not affect the course of the proceedings or the charges against the defendants, it is also clear that it did not affect the police investigation. There were three principal reasons for this.

    "First, the police were already, prior to our instruction, of the view that the section 1 RIPA 2000 offence required proof that the message had been accessed without authority before it had been listened to by the intended recipient. It is however necessary to point out that this approach to the offence does not appear to have limited the scope of the investigation."

    I've been asked to put to you two points on that, Mr Perry. Whereas it's true that that was the police view before they went to Carmen Dowd in April 2006, the police view was confirmed by her. Would you accept that?

  • Well, yes, I do accept that, but I think the point that is being made in this paragraph is: when you're collating the data, you wouldn't necessarily know whether a voicemail message had been listened to either before or after it had been accessed by the intended recipient. I think that's the point that's being made there.

  • Okay, but then the second point is this, that on the basis of Carmen Dowd's advice, which did coincide with the MPS prior view, the police went away and got sophisticated expert evidence through Vampire data following a sting operation of Mr Lowther-Pinkerton's voicemail in May and June 2006 which was able to differentiate between before and after accessing by Mulcaire. Do you recall that?

  • I know we had some basis for saying in some of the charges that you could distinguish that point, but I'm not sure if that was the case in all cases, but yes, I know that in some instances it was possible to make that distinction.

  • Yes. It was the four instances which were referred to in the original instructions of 28 July and in the context of the Vampire data.

    I'm also asked to put to you this: that the narrow view of the construction of RIPA, which emanated really from Carmen Dowd in April 2006, so the argument runs, had an impact throughout the police investigation, because not merely did it cause the police to go away and get this complex expert evidence, but it also coloured their view throughout as to what had to be proved for the substantive offence as opposed to the conspiracy charge. Would you agree with that or not?

  • Well, I suppose the first thing I would say is I'm not sure whether I'm in the right position to say what view the officers took or what approach they adopted, but certainly the approach we adopted as counsel in the case was that the broad view was the one that we were going to take and that's the one that we did take and the point was never tested at the Crown Court.

  • The point was never taken against us to argue it.

  • That's correct, Mr Perry, that whatever Ms Dowd advised in April, by the time you arrived on the scene on 2 August, you gave advice, and if it contradicted the CPS' earlier advice, well, then the MPS understood the position, didn't they?

  • Well, I suppose that's a matter for them as to whether they understood it, but certainly that was the advice that was being given.

  • The only other document which might be relevant to the advice you gave in August 2006 is document 64, tab 64, in what I'm calling the DPP bundle, which is page 18654, an email from Mr Mably. If you look at paragraph 3, this is Mr Mably's recollection in October 2009. He says:

    "There was no written legal opinion. Our advice on the ambit of section 1 was given to the CPS orally in conference. It may be helpful to point out that our advice was based on section 1(1) of RIPA, which requires the communication to be intercepted 'in the course of its transmission'; section 2(7), an interpretative provision, which gives an extended meaning to the times while a communication is to be taken as being in transmission; and the observation of Lord Woolf CJ ... in relation to the effect of section 2(7): 'Subsection (7) has the effect of extending the time of communication until the intended recipient has collected it'. Our view was that the observations of Lord Woolf were correct, and accorded with the rationale of the prohibition in section 1(1). Moreover, it was also our view that in this case there was nothing to be gained from seeking to contend for a wider interpretation of section 2(7) than that contemplated by Lord Woolf."

    Might that be right?

  • Well, I think this may be following on from the note that I had done, because again I think this was -- when we -- when both Mr Mably and I were being asked, I think if a wrong turn had been taken earlier, probably as a result of what I'd written, I think I've put -- given my view earlier that year, then that may well have infected what Mr Mably had recollected but I think in consideration of the contemporaneous documents and the decisions that we took, that this may -- or does not appear to be an accurate reflection of the advice that we gave.

  • I think that must be right, Mr Perry. We keep returning to counts 16 to 20, which is conclusive evidence of the view you must have taken, because I reiterate: those weren't conspiracy charges, and you, of course, would not have caused an indictment to be drafted which was based on an untenable view of the law. Self-evident, isn't it?

  • Did anybody ever suggest to you: "Hang on, why are we doing these charges when we can't prove that these messages were accessed before they'd been listened to"?

  • No. There was no such suggestion. And also, may I just add that it's not just the conspiracy in counts 16 to 20, because of course the conspiracy was an alternative to substantive charges that went up to count 15, and I don't think in relation to those charges, in addition, there was necessarily any evidence as to whether it had been listened beforehand or afterwards.

  • Yes. I think we've done this point to death, Mr Jay.

  • We have.

    The last document is tab 86. You gave a note on 16 September 2010 when you explained the circumstances in which your 20 July 2009 advice was given, the circumstances in which your later advice was given, and made it clear that your later advice was correct because it was based on all the case papers, whereas your earlier advice had not been.

  • I think that, as it were, closes the position.

    Finally, out of fairness to everybody, do you have a view as to the conscientiousness or otherwise of the police officers with whom you were involved over the period 2006 to January 2007?

  • Mr Jay, may I say that -- sorry. May I say --

  • Just hang on a minute, Mr Perry. Just hang on a minute. I suppose if you've been asked to ask the question, it's hardly determinative of very much, is it?

  • All right. Answer the question, please, Mr Perry.

  • Thank you. My view is that my impression throughout this case, which was not an easy case, given all the sensitivities as well as the technical aspects and the difficult issues of law, was that everyone involved, both at the Crown Prosecution Service and in the police, were conscientiously attempting to do their jobs professionally and with some skill, and my distinct impression at the end of it all was that it was an example of collaborative efforts on the part of the Crown Prosecution Service and the police that had led on the face of it at any rate to a successful outcome on the facts of this case.

    I must say, I found everyone involved highly skilled, competent and professional.

  • I'm not at all sure of the value of that question, Mr Perry, but it needs, therefore, to be put into context. Were you aware that some of the more junior officers involved in this investigation were extremely concerned that there was material that wasn't being looked at? Perhaps for good reason, because of the terrorist threat, but their concern was there nonetheless.

  • No, I wasn't aware of that.

  • Thank you, Mr Perry. Those were all my questions.

  • Thank you very much indeed, Mr Perry.

  • Sir, may I make an application --

  • May I make an application to ask questions on one topic?

  • The conference that took place with Mr Perry on 21 August.

  • I don't know whether you can see me but can you hear me?

  • I can both see and hear you.

  • Thank you. The conference that took place at your chambers on 21 August took place I think 12 days after the arrest of Mulcaire and Goodman, and the search of their premises; is that right?

  • I think that must be right. Were they arrested on 8 August?

  • Yes. Do you recollect, during the course of that conference, there being discussion about what had been seized?

  • No, I'm afraid I can't, I can't recall that.

  • Given that it had taken place -- I'm sorry?

  • No, I was just going to say I have no clear recollection of any discussion in relation to what had been seized.

  • Given that that seizure had taken place less than a fortnight before the conference, might it have been a question you would have asked, "You've been into News International, what did you find?"

  • Yes, I -- that's a possibility.

  • But you don't recollect any conversation about substantial volumes of notebooks?

  • But your recollection understandably, because I imagine you've done one or two cases since then, of the details of this conference is thin, is it?

  • Well, it's not -- it's not that clear. I mean, I can picture where it took place, I can picture some of the people, but I'm afraid trying to reconstruct it is extremely difficult, and I wonder in answer to your question -- I mean, I don't know what had been looked at by this time, and I know that we were trying to get the papers put together for service on the defence and to make sure that the shape of the case was correct so far as we wanted to present it.

  • Thank you. The last question in relation to that conference and at all is this: did you have occasion during that conference or afterwards to consider what effect the advice the MPS had received from the CPS had had on the shape of the investigation? Was that something to which your attention was directed?

  • No, I don't think that was something that we considered or that my attention was directed to, because as of our involvement as counsel, and I was the person responsible for giving the advice, the position was that we were going to present the case in such a way that the broad view was to be adopted and we would meet the argument as and when it was put. That's the approach that we were taking.

  • Thank you very much.

  • Thank you. Right. Thank you very much, Mr Perry. Thank you. We'll rise for just a few minutes.

  • (A short break)

  • The next witness is Lord MacDonald.