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

  • MR KEIR STARMER (recalled).

  • Your second witness statement dated 27 March runs to 63 pages. Is this your formal evidence to the Inquiry?

  • Again I thank you and, reading between the lines, Alison Levitt, for the work that was put into this.

  • Mr Starmer, we're going to take up the chronology as from 9 July 2009, because we've had evidence in relation to Operation Caryatid which it's not necessary for us to travel over through you. You explain how the statement was in part prepared with the assistance of Ms Levitt. You made it clear that Ms Dowd left the CPS before 2009; is that correct?

  • That's right, yes. In fact, before I became the DPP so I've never worked with her.

  • Can you explain the role of Mr Simon Clements, please, paragraph 17 of your statement?

  • Simon Clements succeeded Carmen Dowd as head of the special crimes division and when this case was first brought to my attention, which was on 8 and 9 July 2009, I quickly ascertained that the person who had previously dealt with the case was no longer a member of the CPS staff. That obviously presented difficulty because usually when there are enquiries about a case which is no longer a live case, the first port of call would be to the lawyer who dealt with it. I therefore had to appoint somebody else to assist with any questions that were being asked of the Crown Prosecution Service. I appointed Simon Clements, then head of special crimes division, on the basis that he was best placed to help.

  • Thank you. Your involvement began, paragraph 24 of your statement, our page 18115, in the evening of 8 July 2009, which was when the Guardian article went online; is that correct?

  • Yes. As you know, the case had ended in convictions and sentence in 2007, and from my perspective, it hadn't featured in anything I'd had to look at since my appointment and 8 July 2009.

  • In paragraph 26, page 18116, you say you were concerned by the statements made in the Guardian and you therefore held a meeting with a senior lawyer, that's Mr Husain, Mr Clements' deputy, and others, and you:

    "... asked them to conduct an examination of the material supplied to the CPS by the police three years ago so I could be satisfied that appropriate action had been taken at the time."

    So is one to infer from that that you were concerned with whether appropriate action had been taken by the CPS rather than by the police?

  • Yes. My concern was really in relation to what had been reported in the Guardian, that was namely how the Crown Prosecution Service had taken a decision not to take News Group executives to court. That was the issue that I was concerned about. I wasn't able to deal with it straight away because I didn't know anything about the case, Carmen Dowd had left and I wanted to satisfy myself that we had taken appropriate decisions on the evidence available to us at the time, and that's the exercise that I asked to be commenced on 9 July 2009.

  • On 9 July there was a massive flurry of activity, some of which required close to instantaneous responses by you. You cover this in paragraph 27 and following. First of all, there was an urgent question tabled by Dr Evan Harris MP which covered the CPS as much as the police, and the Home Secretary was going to have to answer that question within I think 43 minutes. So that required, as I said, an almost instantaneous response.

  • Then there was a request for an interview by Mr David Leigh, who again was travelling over salient ground which related to the CPS, not the police action; is that right?

  • Did you respond to his bid for an interview?

  • No, I didn't. The Guardian had obviously been working on this for some time and this story broke in the evening of 8 July and in the paper press on 9 July 2009. As I say, I'd never really had cause to look at it. I knew generally what had gone on in 2007, I'd never looked at the papers, never had cause to think about it.

    During the morning of 9 July, there was a huge flurry of activity because, as you say, we were being asked to deal with all sorts of queries and to provide information, which was difficult in the circumstances. I was then asked, or I should say David Leigh asked of the organisation some quite specific questions and I was clearly not in a position to begin to deal with them, so therefore I declined to do so.

  • Is there a risk that the pace of this sort of inquiry will lead to difficulties later on down the track and therefore there ought to be a greater understanding of the need for caution before responding?

  • Yes, I think that's right. Had I attempted to answer these questions based on what then would have been very, very limited information, I think there would have been a great risk that further information might shed further light and the initial answers would be seen to be wrong or not full, and therefore what I didn't want to do was to answer questions until I at least had an appreciation myself of what actually happened in 2006 and 2007. I didn't even have that. I didn't have the next best thing, which was the lawyer who dealt with it to call in for an urgent meeting and to walk me through the process. So I wasn't inclined to answer those questions at that time for that very reason.

  • Paragraph 33 next, Mr Starmer, page 18118. Mr Husain had indicated he had:

    "... made contact with DCI Keith Surtees and had asked him to send an email setting out 'the approach taken by the prosecution team when the matter was originally brought to our attention'."

    Your comment on that is this:

    "This began a history of reliance on what the MPS told us about the events of 2006-7."

    Can I seek to break that down. At least as regards what was happening within the CPS, although there were difficulties with the departure of Carmen Dowd, there was at least a documentary record base of the decisions the CPS had made, but you were reliant on what the MPS were telling you about their decision-making, is that fair?

  • Exactly. We had limited documentation on the premises and a record of any decisions we may have made. As for the wider documentation, the approach taken by the police and all their records events, we relied on them.

  • Thank you. You think it's about 3.30 in the afternoon that AC Yates made his press statement. We've seen the press statement, it's under your tab 22. I just wonder where you got the time from because Mr Yates put it later on that afternoon, maybe closer to 5.00 or 5.30.

  • I don't know now where I got that time from. If Mr Yates says it was later in the day, then I wouldn't quarrel with that. I think probably to get this statement we must have seen something which suggested it was 3.30, but if that's wrong, it might have been slightly later in the afternoon.

    The point I was making about it in paragraph 34 is that I didn't at that stage know that he was going to make a statement, nor did I know that he had carried out a review of the material.

  • He would emphasise that he was establishing the facts around his inquiry rather than carrying out a review, it would seem.

  • I'm not going to ask you to comment on what his statement says, we can draw our own conclusions about it.

  • Save that what I said in paragraph 38 is important. What he said was some of the first information I was receiving about this case, and given his position at the time, I have to say I took it pretty much at face value in building up the picture.

  • You had no reason to doubt what he was saying, that must be right. Just a small point on the last sentence of paragraph 38 where you say:

    "It was only much later that I came to know of the short time Mr Yates had spent considering the case."

    Didn't you draw the inference at the time that Mr Yates was responding to the Guardian article, which after all had only just seen the light of day, and he in his statement himself said, "I've been asked by the Commissioner today to establish the facts", so what he was doing was an exercise which was completed within one day. Isn't that fair?

  • I think that's fair, looking at the statement, and I accept that. At the time, it was a very busy day, I didn't pick that up at the time and I didn't appreciate at the time that whatever Mr Yates looked at, he completed the exercise in a day. I know that some months later I think he gave evidence to a Select Committee making that even clearer. I have to confess I didn't pick that up at the time. It was only later that I appreciated the entire exercise had been done in the short time that it had. But I accept it's there on the face of the document where he says I did it today.

  • You say in paragraph 39 that Mr Yates made no reference to the investigation having been curtailed or otherwise circumscribed by advice on the law given by the CPS, which is correct, that's not indicated by his statement. But I think that point -- we may go back to it, but we've covered it largely to the extent we need to.

    You issued your own statement, which is at tab 33, that evening.

  • Yes, tab 23. Did I give a wrong tab? All right, tab 23. It was obviously based on the limited data you had available:

    "... no reason to consider there was anything inappropriate in the prosecutions undertaken in this case. In the light of the fresh allegations that have been made, some preliminary inquiries have been undertaken. I have now ordered an urgent examination of the material that was supplied to the CPS by the police three years ago. I am taking this action to satisfy myself and assure the public that the appropriate actions were taken in relation to that material."

    A number of points on that, Mr Starmer. You're confining it to the material supplied to the CPS by the police three years ago, so are you excluding from account all of the unused material?

  • I was, and that was deliberate. It's always difficult when there are questions about a case which is no longer live to decide how to answer those questions. One would be to call for all material generated in the course of the full investigation and require it to be reviewed from start to finish. That would be an extremely long exercise. The other is to look at the possession -- the material in the possession of the CPS and check the decision that the CPS made.

    That was my real concern. I wasn't -- my responsibility was to ensure that on the material that was provided to us that we made the right decisions, and that's what I wanted to be assured about, so I limited the exercise to the material we had and the decision that we made as the Crown Prosecution Service.

  • Whatever material had been supplied in relation to counts 16 to 20, which were the calculations of those outside the Royal household, that material was within the contemplation of your press statement, wasn't it?

  • Can I ask you, it may be implicit, your reaction to the Guardian article, it might be said it's only one article. Why did you take it or appear to take it so seriously?

  • Well, it was only one article. It was quite an important issue that we had deliberately taken the decision not to bring a case against an executive at the News of the World. And the number and seriousness of the requests that were coming in thick and fast on 9 July 2009 persuaded me that this was something I really needed to understand and to be reassured about what had happened. And I needed to reconstruct the picture from the CPS point of view as quickly as possible.

    And so it was really the Guardian article that started the process and my thinking, but it was very rapidly followed by very many requests for more information, either from the press or from official sources. So it was really all of that taken together that in the course of 9 July persuaded me that I needed to reconstruct the picture and to do it pretty rapidly.

  • It's not just the press article, but particularly the political overtones, questions in the House and all this sort of thing.

  • Yes, and I think I'd understood that Lord West was going to be making a statement later that day on behalf of the whole government. We were being asked to contribute to that. I was finding it difficult to do so because I didn't have any knowledge, I didn't have the person who dealt with it, we were getting the material as quickly as we could, but when something is being treated as seriously as that, across government, it was obvious to me that I needed myself to get a much better picture.

  • Can I ask you about paragraph 43. You say:

    "On reflection I could have been clearer with my team than I was. They (thinking that I was most concerned about the advice which the CPS had given to the police at the time) concentrated on the correspondence between the CPS and the police at the time and did not examine the entirety of the material in the possession of the CPS, which included witness statements and exhibits ... However, I am satisfied that this misunderstanding made no material difference and the conclusions of the examination I had called for would have been the same."

    Why do you say that, that it made no material difference?

  • Because the question I was essentially focusing on was on the material available to the CPS at the time were appropriate decisions taken in relation to the prosecution in 2006 and 2007, and there's nothing in the material that was then held on the premises of the CPS that would have affected my review in July 2009.

    I should say this: by then, I had -- my team had drawn on David Perry's recollection and I had seen the note that he produced on 14 July about his recollection of the conference back in August 2006, so by then I was drawing on not only the material that we had on the premises, but also the help and assistance that David Perry and Louis Mably were giving us.

  • I should perhaps add this, if it's not clear: the material we held on the premises at the CPS was a fraction of the material that had been collected in the investigation, and to give that some flavour, on the premises of the CPS, so far as I'm aware, there were probably about 40 extracts from the Mulcaire diary. The other whatever it is, 10,960 pages were never on our premises and were part of the unused material, and therefore what we had was a fraction of a much bigger picture.

  • Could I unpick your answer in two ways, Mr Starmer? The first is what you were really concerned about was: have we given advice that somebody shouldn't be prosecuted which is now being challenged?

  • That's not infrequent, happens. You're asked for an advice and you give it.

  • So that would be all available within the papers that you held?

  • The second question is -- sorry, in relation to the first question, that's the four corners of what you were asking your team to do: have we done the job we were asked to do properly?

  • Yes. That was essentially what I wanted to know.

  • The second question flows from the assurance that you received from Mr Perry, because I would be grateful for your comment upon the extent to which you should be relying upon leading counsel, very experienced and capable though he is, recollecting back three years without the benefit of papers on issues which might become quite sensitive.

  • Well, ideally that wouldn't be the position. My own view from working, because we had to work swiftly on this, was that in the absence of Carmen Dowd, and from recollection we tried to contact Carmen Dowd -- we were successful on one or two occasions but we didn't have open access to her -- the next best way of approaching this was to involve counsel instructed at the time, the only other people available who could help reconstruct the picture. I do accept that that isn't an ideal situation and I do accept that that on occasion put counsel in a rather difficult position, because they were being asked to recollect things which were then two or three years old, and they hadn't had provided to them all the papers that they'd had provided at the time.

    So far as David Perry's recollection of the August 2006 conference is concerned, however, that is something which he put in his note of 14 July 2009. It's something that only a few days later, I think on 17 July, I personally discussed with him, because as soon as I -- as soon as the Neville email was brought to my attention, I had a conversation with him, particularly about what he'd been told in 2006. So in that respect, that was a face-to-face discussion with David Perry, and the way he discussed it with me gave me the clear impression that he did actually remember that part of the conference, whether he had his notes or not.

  • We'll come to that, but on 10 July junior counsel was involved in a meeting at the old offices of the CPS. This is tab 25, page 18299.

  • It's fairly clear that only limited documentation was available, although a draft chronology was prepared. Mr Mably gave some explanation about the charges and how they evolved. We can see from clause 2.7, page 18200, halfway down that paragraph:

    "Junior counsel Louis Mably recollected that the situation changed after the search on Glenn Mulcaire's premises. He also added that the original charges only reflected a small number of calls and Glenn Mulcaire was involved in the celebrity aspect of the case [well, that's what became counts 16 to 20] whilst Goodman was not."

    Then he explained that the indictment included five additional counts and that the guilty plea is at 2.11.

  • The extent to which you were still reliant on the police seems to come through the conclusion, paragraph 6, page 18301:

    "Simon told the meeting that hopefully by next week the police would have submitted their report and we will be in a position to deliver a briefing to [you] which is diligent, accurate and swift. The meeting was then concluded."

    So one does draw the inference that what the police were telling you at least factually was going to inform the briefing that would come up to you in due course?

  • The story then moves on paragraph 49 of your statement.

  • 18122. The Home Secretary asked for the terms of reference of your review and you decided that they should be articulated thus:

    "Whether the CPS gave any advice to the police at the investigative stage --"

    I think that should be 2006?

  • "(And if so, what?) What information was passed to the CPS to consider prosecution and who was considered. The strategy. Whether any of those now alleging that their cases were not considered for prosecution were in fact considered ..."

    Again that should be in 2006, and reasons for that.

    You were now coming under pressure from the highest level, really. You say in paragraph 50:

    "It is fair to say at the time that Simon Clements was under some pressure to complete his task."

    Is it right to say that there were two background difficulties here: first, your reliance on the police to provide you with factual evidence, and secondly, the background consideration that the Home Secretary wanted your response as soon as possible?

  • 14 July now, paragraph 51:

    "Nick Davies gave evidence to the CMS committee. As part of his evidence he presented the committee with copies of a number of documents, which included what has come to be known as the 'for Neville' email and the contract between Mulcaire and [someone else at News of the World] which related to the payment of a bonus for the Gordon Taylor story."

    Presumably those came immediately to your attention, or those matters came immediately to your attention?

  • They didn't come immediately to my attention. I was waiting for the report that I would get later that week. And, as you will see, one of the issues when I issued the results of my examination was a query from the Guardian as to whether or not the "for Neville" email had been considered. It is wasn't brought to my attention at that stage. I hadn't seen the "for Neville" email.

  • We'll come to that in a moment.

    On the same day you had David Perry's note or the joint note from counsel, 14 July.

  • We've seen it earlier on today. You say at the bottom of this page:

    "As far as this aspect of their collective memory is concerned, Mr Perry personally emphasised to me (in 2009, see below) that he had a firm recollection of asking these questions."

    Taking the story forward three days, that was on 17 July?

  • That was on 17 July. I mean, the reason that was of importance is because the issue that had first concerned me was the suggestion that the CPS had not prosecuted an executive from the News of the World, in other words, some deliberate decision had been taken not to prosecute an executive, impliedly notwithstanding evidence that the CPS had. So David Perry's recollection of that conference was obviously important to the concern I had at the time, but it was three days later that he and I had a face-to-face conversation about that conference back in 2006.

  • Thank you. On 14 July as well there's an email from Mr Williams, tab 29 of your bundle, page 18305. He sets out the position at the conference on 23 August -- although he has the wrong year in the email, that doesn't matter -- as to how the five or six victims would be selected.

  • And I think it's fair to say that what Mr Williams says there is wholly consistent with the evidence we've heard from Mr Perry this morning.

  • I think that's right.

  • There was a later email from Mr Williams the following day, 15 July.

  • Is that the next tab?

  • Yes, it's tab 30. Again you were heavily reliant on what he was telling your department in terms of the factual position?

  • He refers to the conference on 21 August again, and then the last paragraph:

    "At this stage Mulcaire and Goodman had been arrested and charged in terms of the main royal victims. The conference was now considering what we had considered as a consequence of the arrests and how it affected the way forward, within which, of course, there was consideration as to what other potential victims did we have. I'm deliberately using the term potential victims as I feel it's important to understand the we all recognise that proving that someone was the victim of interception is extremely challenging, if for no other reason than to varying degrees the airtime providers' software was never designed to be used to prove such activity in court."

    And then he refers to what happened subsequently and I paraphrase: there were issues concerning parties' willingness to be witnesses, but eventually came up with, as we know, five additional counts.

  • It isn't explicit that the reference to this being extremely challenging wasn't necessarily predicated on a narrow interpretation of sections 1 and 2 in RIPA, it might have been more general observation, but he's not expressing a view of the law there, which he was given by anyone, is he?

  • No, he's not. I think in fairness the fact that the police were trying to get evidence to show whether or not the message had been listened to before it was intercepted shows that they thought that for part of the case that was something they might need to show.

  • Yes. I'm not going to ask you what he says about victims but what Mr Williams said about other defendants may be relevant on the next page, 18308, four lines down, in relation to whether or not anyone else was involved:

    "As part of this same conference and considering what we had discovered we actually commented that we were open to the potential for there to be other defendants and in fact part of our discussion was around the merits of getting a production order to see if it would reveal more to help our understanding."

    Well, I can probably stop there. That can be read a number of ways. It's certainly consistent with Mr Perry being told that there was no other evidence at the moment relating to other defendants but a production order may reveal the existence of such evidence, which may be the better interpretation, or it could be interpreted on the basis that there was discussion around there being some circumstantial or inadequate evidence at the moment, and the production order may beef up the position?

  • I'm not sure I am able to comment one way or the other. When I was looking at this in 2009, I was interested in the questions that Mr Perry had asked at that conference for obvious reasons, but I had understood his note to the CPS of 14 July 2009 to mean that he had never, David Perry, during the course of the prosecution, seen evidence implicating others, because it wouldn't necessarily have helped me to know that on 21 August 2006 there wasn't such evidence, but it arrived two weeks later.

    So I was concerned -- I mean, I was interested in the fact -- in the dates, and that he had asked those questions, but I was more concerned with whether that evidence had ever been seen by him in the period 2006/2007 at all, in whatever capacity, because obviously other counts were -- the indictment hadn't been drawn up at that stage, counts were later added to the original indictment and more material would have been supplied to him for that exercise.

    So I really can't comment on this passage, but my understanding was that David Perry hadn't then or subsequently seen evidence implicating others.

  • At any stage did this pass through your mind, Mr Starmer, that if one looks at counts 16 to 20, the non-Royal victims, evidence was clearly provided to the CPS and counsel by the police in relation to those matters. You mentioned 40 pages from the Mulcaire notebook, so those pages may have been related to those charges.

  • It could be said, well, if you look very carefully at that material, or perhaps not so carefully, you could see, well, the corner names relate to other first names than Clive Goodman, by implication this must be others at News International, and you put the story together, you're coming fairly quickly to the conclusion that there must have been others at News International who were being at least potentially implicated and whose existence therefore was known to the CPS.

  • I've never gone through that exercise myself, and that question I think was put to David Perry this morning and he gave his answer. I was, rightly or wrongly, relying on what Mr Perry was telling me in 2009 that he had seen and what he concluded from what he had seen. To be honest, if leading counsel says to me, "I did not see material that implicated others", it's highly unlikely that I'm going to say, "I think I will now look at material myself to double-check what you've just told me.

  • There's no point at all in looking over the same material provided he has been asked to do that particular exercise.

  • Exactly. He'd been asked and told me in 2009 what his conclusion was and I had no reason really to go back and double-check what he'd told me.

  • That must be right, Mr Starmer. The only issue might be with the reliability of Mr Perry's memory in 2009, being asked to throw his mind back to the fine detail of a quite complicated case and remember: what exactly was I shown in relation to any particular issue or particularly an issue which didn't feature very starkly, given there were quite early guilty pleas.

  • No, no, I accept that. I was asking David Perry to work quickly with us to try and re-establish the picture. He did that to the very best of his ability, I'm grateful to him for having done that. We were under considerable time pressure for the reasons that are obvious in my statement.

  • But the classic part about all this is the exercise that you were undertaking, which was to review what the CPS had done, not what the overall position was.

  • You were provided with a draft submission, this is under tab 31.

  • Including a draft press statement and a helpful chronology, which sets out the position in some detail. I don't think it's necessary to dwell on that, but --

  • Well, other than -- I'm sorry, you may be coming to this, the review itself? What I was -- what I noted was in paragraph 3, as I understood it --

  • It's 18280. The last sentence there.

  • Well, it's not just that, it's paragraph 3. This is what I was being told as a result of my examination. My concern was it was being suggested that there had been another suspect and we the CPS had taken a decision not to pursue that suspect for whatever reason and I'm being told:

    "No other suspects were considered or charged. This has been confirmed to Asker Husain [that's the person who was dealing with it in 2009 on my behalf] by DCI Surtees: 'no other named subjects [apart from the three named individuals] were identified as suspects of criminal activity through this investigation'."

    That I understood to be a quote of what had been said to Asker Husain by the police in 2009.

    "Prosecution counsel has also confirmed that the police informed them that there were no other suspects ..." apart from those three.

    So on the issue I was most concerned about, this is what I was being told. Counsel says at the time there weren't any other, it's been confirmed to us, as I understood it, in July 2009 that that was the position. That obviously gave me an answer to the concern that I had.

  • The press statement which went out on 16 July, under tab 35, if you go to page 18294, we can see at the bottom of that page what you said about other suspects.

  • Is that the third page of the -- under "Findings"?

  • You can see what you said:

    "Having examined the material that was supplied to the CPS by the police in this case, I can confirm that no victims or suspects other than those referred to above were identified to the Crown Prosecution Service at the time. I am not in a position to say whether the police had any information on any other victims or suspects that was not passed to the CPS."

    So that was appropriately cautious.

    I've been asked to put to you this point by the MPS, really: given that the police had not provided you with all relevant information, why didn't you seek it from them?

  • Because I was not concerned with whether the police had taken appropriate decisions on the material available to them. I was concerned with whether the CPS had taken the appropriate decisions on the material supplied to the CPS. It really wouldn't have been appropriate for me to say I'm going to investigate material the police have to consider whether they took appropriate decisions. I was focusing on my organisation and the decisions taken in 2006 by the CPS.

  • Yes, I understand that. We're going to move on now to the two documents we referred to about five minutes ago, but it may be convenient --

  • Fine, 2 o'clock if that's all right. Thank you very much.

  • (The luncheon adjournment)

  • Mr Starmer, we're now on paragraph 62 of your statement. It's Mr Davies again.

  • Asking whether or not you'd called for the two documents, this is the contract between the executive of News of the World and Mr Mulcaire and the "for Neville" email. You said:

    "At about 10 o'clock that evening, I emailed Simon Clements to ask him whether he had looked at the documents."

    That's tab 36, which speaks for itself.

  • It's quite crisply worded by you.

  • This might have something to do with the time of day.

  • At two minutes to midnight, Mr Clements is back to you.

  • I think you've given the CPS enough support for their devotion to duty, Mr Jay.

  • "... neither he [this is Mr Husain] nor I have looked at material extraneous to the case papers we had at the time. We do not understand that to be the purpose of your examination. I have spoken to John Yates tonight and we will speak again in the morning to clarify the issue."

  • And so the following day Mr Clements, as you say, began to look into the matter. Then you say:

    "Later that day, also on 17 July, Mr Clements was sent a copy of the MPS response to the CMS committee."

    This is the first suggestion to your mind that the MPS investigation might have been curbed by a belief that the narrow view of the law may be correct?

  • That's tab 39, the second page of it.

  • The reference is 18599. It's fair to say it's hinted at in the third paragraph. That's where it appears, isn't it, Mr Starmer?

  • Yes. The issue that was -- the only real concern I've ever had about the history of the advice on RIPA is that it's quite clear from the documentations that the police were concerned that they might have to prove that the message had been listened to before it had been intercepted, and I don't dispute that.

    The issue I had in relation to all this was whether that was the reason why the investigation never looked at other defendants, and I took a clear view that that was not the reason that the investigation didn't look at other defendants, for all the reasons that I've set out in my letter to the Select Committee, I think in 2010.

  • Yes. That clearly identifies the issue. I move on to paragraph 67, Mr Starmer, and the investigation into the "for Neville" email. As you rightly say, paragraph 68, the contract for the £7,000 bonus for Mr Mulcaire was in the exhibits bundle.

  • Indeed it was referred to in the course of Mr Perry's opening to Mr Justice Gross on 26 January 2007.

  • But no trace of the "for Neville" email has been found in the CPS papers.

  • And indeed, this is paragraph 70, following contact with DCI Surtees, the email formed part of the unused material.

  • Paragraph 71, you are more precise about it there, Mr Clements' lawyers were informed by DCI Surtees that the "for Neville" email formed part of the unused material, it was listed on the sensitive schedule as item WAB/107, described as "black bin bag containing various notepads".

  • Presumably there were also bits of the Mulcaire so-called notebook there as well.

  • I think that's right. Yes.

  • In paragraph 72, you deal with the review of the unused material, which was under the 1996 Act as amended, and Mr Mably's recollection never having seen it.

  • I've ascertained that it wasn't on our premises, and therefore we'd not physically had possession of it, but I was aware that a disclosure exercise would have taken place, and by then I think I was aware that Mr Mably had conducted that exercise, and therefore he looked at some of the documents as part of the unused material. But I don't know what, and as I set out there, I don't think he recollects precisely what either.

  • The Met view of the email was that it didn't have the significance that the Guardian attributed to it. That's paragraph 73. But there came a time, I think on 17 or 18 July, when you yourself saw the email; is that right?

  • Yes. On that Friday, once I was told that we didn't have it, the police did have it, I asked for it to be sent over as quickly as possible and I think it was faxed through to my office and then I obviously looked at it.

  • We're obviously going to have to be careful, given the ongoing investigation, as to exactly what your reaction was to it, but indeed, to be fair, you are careful in the last sentence of paragraph 74 that it suggested that there were other possible suspects, and that's really as high as one need put it?

  • Exactly. As I said before lunch, I was concerned as to whether there had been other suspects. I'd got the reassurance I'd got from the police and David Perry, and when I saw the email, I was a little concerned that that didn't correspond with what I'd understood to be the position only two or three days before.

  • There are two possible values to such a document, and if I take an analogy which Mr Jay might like, one is that it could be -- and I'm not talking about this document, but in these circumstances -- a smoking gun which led directly to a target; another is that it is a flag saying, "Look here", or, "Dig more".

  • I thought it was probably the second, but even if it was the second, it didn't correspond with what I'd thought I'd got a reasonably firm assurance about, namely that there hadn't been thought to be other suspects.

  • And that's probably the long and the short of this email, isn't it? It's not whether it is significant in itself as demonstrative material, but whether it should have alerted somebody to carry on.

  • I would agree with that.

  • I'm putting it quite carefully because I don't want to go too far. I don't know what use will be made of it, but I'm simply trying to provide a context for this Inquiry as to the value that can be taken from it. Is that a fair reflection of the position?

  • That's how I viewed it at the time.

  • You had a meeting with Mr Perry on the afternoon of 17 July. At the meeting he, I infer, brought along his notes of the conference. He annotated his agenda of 21 August 2006, which we have under tab 41 and we've looked at earlier today with Mr Perry.

  • I can't actually remember whether he had that document. I certainly had before me his document of 14 July 2009, where he'd said -- where he'd indicated the answers that he'd got to various questions. Whether he had his own document, I don't remember, but we did obviously talk about that conference and the answer he was given, because I was simply at that stage, as it were, laying the Neville email alongside his notes of 14 July 2009 recalling the 2006 conference, and asking him in the first instance whether he had ever seen the Neville email before and what he'd made of it.

  • Yes. What was his answer to that, to the best of your recollection?

  • He didn't recall the Neville email. He wasn't 100 per cent sure, and I wouldn't have expected him to have been 100 per cent sure. He'd been asked by me to come in at very short notice and to discuss this, but he didn't recollect having seen it.

  • Thank you. Later that afternoon, you issued a press statement.

  • Well, no. Yes, I did, but my --

  • Sorry, yes, you're right.

  • My first -- having discussed it with Mr Perry, I was concerned that there really ought to be some further investigation of the "for Neville" email, because I didn't for myself see how it sat with what I had understood to be the situation. And whilst I couldn't direct the police to investigate anything, I obviously did have the option of writing to Mr Yates to invite him to at least consider whether he should have a further look at the Neville email, and that was what I thought was probably the best thing to do in the circumstances as I saw them that afternoon.

    A press statement was issued to that effect, but then I had a series of phone calls, first with the Commissioner and then with John Yates later that evening, and as a result of that I agreed to meet John Yates on the following Monday morning to discuss the "for Neville" email.

  • Yes, and you issued a press statement which was, if I may say so, deliberately plus it was temporising. You said that the DPP was now considering whether any further action was necessary, pending your meeting with Mr Yates that Monday following; is that correct?

  • Precisely. My instinct was that there ought to be a further investigation of the "for Neville" email. I'd had my discussion with John Yates and he had put various points to me and I had agreed that we would therefore have a meeting on the Monday morning to further discuss the email, rather than me issuing anything of substance that evening.

  • When you had those discussions with Mr Yates in the early evening of 17 July, did he give you the impression that he was unwilling to investigate this further or not?

  • There was a degree of pushback against my suggestion that there should be a reinvestigation or further examination of the "for Neville" email. To the best of my recollection, Mr Yates said that it was not new, it had been seen before, and thus I took from that that he didn't consider at that stage there was any point for investigating the "for Neville" email.

    But, to be fair to him, it was the Friday evening. He did not think -- there was a degree of pushback to my initial suggested course of action, but he agreed to a meeting on the Monday morning so we could discuss it further. And that seemed to be sensible. We were by then quite late into a long Friday, and so we agreed to meet on the Monday morning.

  • Yes, and you did meet at 11 o'clock. The notes are under tab 47, but the version we have, the notes of the document have come out very badly in the photocopy, but we do, as it happens, have a much clearer version. Do you have one?

  • I have one. Whether it's as clear as the version you have, I don't know. I've done my best to decipher what's in it.

  • Thank you. (Handed).

  • I'll provide one to the technician. I don't think there's anything here that's going to be problematic.

    You summarise this in your statement.

  • Can I ask, first of all, whose notes these are, if you know?

  • These are notes that I think came from the Metropolitan Police of this meeting. I'm not sure who amongst the Metropolitan Police team kept the notes but they're notes that came from them. Or that one of their team made.

  • Can we just alight on a few points. You can see the reference to the email being part of the sensitive material, about six lines down, do you see that?

  • "David Perry on Friday, Louis Mably spoke --"

    It's not altogether clear. I think it says:

    "Carmen Dowd on unused material and old [something] review of our documents."

  • I think from memory, and having tried to analyse these minutes, I think I was outlining the history as I saw it, and I was then explaining to those present there that I had spoken to David Perry and that he didn't recall seeing it, and so the first thing I wanted to know was: did the police have a note of the "for Neville" email having been considered in 2006/2007, because it seemed to me that might short-circuit the issue, so that was the first thing.

  • Yes. And on the second page, but perhaps this page shouldn't go up on the screen, because you do say something specific about the email.

  • You say you understood no other suspects. The email now tends to suggest possibly something else.

  • I think that's as far as we need take it.

  • I mean, I was simply really expressing to that meeting what I've just expressed to this Inquiry, that what I'd understood to be the position didn't on the face of it sit very well with this email.

  • Mr Williams then made his contribution towards the bottom of the second page. There's a reference to Mulcaire, "June/July, bigger due to victims MPs, et cetera", I think it says. "Case conference 21 August". And then it says, "Discussion other defendants. Lots of material. Names, et cetera. Scope, production order, discussion."

    So it's possible that Mr Williams was saying that at the conference on 21 August there was some discussion about the possibility of bringing in other defendants, because there was lots of material, but that would all depend on the production order. Is that right?

  • I think I can't remember precisely, but I certainly wouldn't quarrel that that's what he said. It makes sense, not least because once I'd heard what he said, I then said -- I then said, as it were, to the meeting, "David Perry and Louis Mably asked if evidence of other journalists, told not and saw no evidence to support."

    So having heard from Mr Williams, I said, well, as I understood it, something had been said by way of an answer in that conference which suggested there wasn't, and David Perry had said there wasn't further evidence, so that was my response to him, so that makes perfect sense.

  • On the top of the fourth page, this is an important point, what you say:

    "David and Louis asked if evidence."

  • Can you read the next bit? It relates to other journalists.

  • "[Something] of other journalists."

  • Right. So you are?

  • "Told not. Saw no evidence to support".

  • I'll tell you. It's:

    "Does the evidence", and the arrow means "lead to", "editor and other journalists."

  • What was happening was Mr Williams was saying -- I had said, look, I understood the position that there were no other suspects. I've now seen this email. For me, just laying the two things side by side, they don't appear to correlate, and then was there any consideration of it? Mr Williams explained to the meeting that there had been this discussion about other defendants on 21 August, to which I responded, well, I had understood at the 21 August conference that David Perry had asked questions as to whether there was anything that led to the editor or other journalists and was told not, and nothing to support it. And nobody's ever contradicted that to me.

  • That was the key question I had.

  • Once you said that, did Mr Williams or anybody else say, "No, that's not what happened at the conference on 21 August"?

  • No, they didn't say it then and nobody's ever said it to me.

  • Okay. It doesn't appear from this note --

  • -- that you were contradicted.

  • And that is -- or is possibly a key point.

  • When it says "KS does not recall Neville", that's David Perry?

  • I think I'm reciting what David had told me on the Friday.

  • But Mr Williams' response is more or less in the middle of the page.

  • "Lots of --" is that "names seized"? "Email dated 2005. Prosecution strategy."

    Again I'm sorry --

  • "Lots of names seized."

    That's the first point. The second point is that the email was dated 2005, which didn't fit with the timing of the then current charges. And there was the prosecution strategy which he described. Gordon Taylor charge. Or change network.

  • Yes. This is the mobile network changing, I think.

  • "Only keep 186 days' data. Can never go back and get data."

    And then something about disproving calls.

  • I do remember being told that there would be a problem with an email dating back to 2005, in that I think I was being told that the data would only be held for a certain period of time, and therefore it would at least be very difficult to investigate.

  • I think, to be fair, two lines down, I accepted at that meeting that in and of itself, the email didn't prove anything.

  • But again, it's the first few words of that sentence that matter.

  • Yes. And if you link it with other evidence, query where that might go.

  • Then it says:

    "Context, bin liner [this is still Mr Williams talking probably], lots of material with names, et cetera, could be journalists."

  • Then Mr Yates chips in:

    "No new material seen by counsel."

  • No, it's not -- what he's saying is:

    "This is not [underline not] new material."

  • Yes, "seen by counsel". So presumably he's not accepting that leading counsel had said he hadn't seen the email; is that right?

  • His view was none of this was new material. I was concerning myself with stuff which had been seen at the time and, in his view, seen by counsel. I can't now recall whether he meant leading counsel or junior counsel, and he may not have been specific.

  • Then he said "seen by" something else, and I'm not sure I can decipher the next -- "seen by team"?

  • Focus on -- we focus -- I recall we focused on the set parameters, which was an operational matter for the police, and then he expressed the view the email will go nowhere.

  • "PW can construct [is it?] rationale from ..."

    Is that "time"?

  • That's going back to the 2005 point. Then he's saying on behalf of the police:

    "Would we consider -- yes -- is it ..."

    And then the reference to police resources.

    "No."

  • I think Mr Yates was saying we can construct the rationale at the time, but if you ask the question whether it was good use of police resources, he at that stage was not of the view that it was.

  • I don't think we need read the rest of it, but one of the upshots of the meeting was that you were going to go back to Mr Perry for advice as to the evidential significance of the email?

  • I have to say, I wasn't entirely comfortable with the position we were reaching in the meeting, because I wasn't -- Mr Perry told me he didn't think he'd seen the email. Mr Yates was telling me that it wasn't new, it had been, as it were, considered at the time, which would then perhaps answer all the concerns I had. And I wasn't inclined to leave it there. It seemed to me that what I -- the sensible thing for me to do in those circumstances was to formally ask David Perry the questions: did you see it at the time? If so, what did you make of it? If you didn't see it at the time and now looking at it in 2009, what do you make of it now? That would close down my concerns one way or the other.

    So, rather than pursue, as I'd intended on Friday, the invitation to Mr Yates to reopen the investigation at least to that extent, to which he was pushing back to some extent, I'd thought the next best option, as far as I was concerned, was to go to David Perry for some further advice.

  • Yes. So two things were happening, really contemporaneously. One, you were instructing David Perry to answer your questions in the form of a further advice --

  • -- and the police officer, Mr Williams, was preparing a note which would assist in provide some of the background for Mr Perry writing that advice? Do I have it --

  • That's right. I said I was going to ask David Perry to do the advice. There was no pushback against that, I have to say straight away. On the contrary, it was agreed that Mr Williams would assist in that process by providing a background note so that Mr Perry could advise as swiftly as possible, and that's what he did.

  • The advice Mr Perry was being asked to give, in the circumstances -- well, he was being asked to provide it overnight. In the circumstances he was busy the following day in the Court of Appeal, and you say in paragraph 5 that you think that both he and you would now agree that with the benefit of hindsight it would have been better if he'd had a little more time, being given the opportunity to check his papers before committing himself?

  • Yes. I was under pressure to complete my exercise as swiftly as possible. I was anxious for David to turn this around as quickly as possible, but -- and he willingly did what he could overnight, but given the significance of this material I think, as I say, he and I would now accept that they were not ideal circumstances to be dealing with something which in the event may be of some significance. But I don't -- I mean it was me asking David Perry to do this as quickly as possible.

  • Sorry, please continue.

  • Sorry, there was a problem with our machine, but I think it's now come back to life.

  • I was simply indicating that it was certainly me. I was asking for this to be done as swiftly as possible, and David was doing his best to help me with the exercise that I was engaged in.

  • We know that Mr Perry, because he said so, based himself heavily on a note which Mr Williams prepared, which is our tab 49.

  • Which was emailed at about 6 o'clock that evening. You can see the view of the law that was set out in that note on the second page, under the heading "Challenges".

  • It's pretty prescriptive:

    "To prove the criminal offence of interception, the prosecution must prove that the actual message was intercepted prior to it being accessed by the intended recipient."

    So that's the narrow view of the law.

  • Then there is an analysis on page 5 of the "for Neville" email.

  • Which again we possibly don't want to dwell on too closely because it may or may not be considered by a criminal court.

  • But we can see what is said there.

  • We can move on through your statement that the advice from Mr Perry arrived the following morning, 21 July.

  • We've seen that advice with Mr Perry this morning. Of course, in the meantime, you'd received a letter from a Member of Parliament asking you to direct the police to reopen their inquiries.

  • Of course, that's something that wouldn't have been within your constitutional remit to do.

  • No, I have no power to direct the police to investigate anything.

  • We've looked at Mr Perry's advice. It speaks for itself, I'm not going to ask you further questions about it. But I can ask you this general question: what was your reaction to it?

  • Well, I accepted Mr Perry's advice. I'd asked him specific questions about the "for Neville" email. In a sense, at that stage, the answer I was most interested in was: what do you make of the email now? And he had given an answer to that. He had far greater knowledge of the case than I did. I'd asked him four very specific questions, to which he'd given the answers, and I accepted his advice.

  • Thank you. His view of the law was of course one he was going to revise the following year, but it was perhaps for you a subsidiary concern in the light of your primary concern, being the significance of the email. Have I correctly understood it?

  • That's right. I think although -- I don't think at that stage anybody was suggesting that legal advice from the CPS was the reason why the investigation didn't go further in 2006/2007. That only became an issue later on.

  • Right. You wrote back to the Select Committee on 30 July.

  • It's tab 59. And you obviously based yourself heavily on leading counsel's view and on Mr Williams' note, and we can see on the second page of that document that in relation to the law, you pithily summarised what Mr Perry had said:

    "To prove the criminal offence of interception the prosecution must prove that the actual message was intercepted prior to it being accessed by the intended recipient."

  • That was prepared from Mr Perry's advice, yes.

  • Mr Starmer, could I just take you back to the advice and ask you one question? In retrospect, and I appreciate that it's very, very easy to sit here years on and try and analyse everything without cognisance of what happened subsequently, I understand that, but do you think that the way that you asked Mr Perry the question and perhaps the way that he answered it was more directed to the "is this a smoking gun" question rather than "is this a flag that says dig here"? Do you see the question I'm asking?

  • No, I do. I mean, I think I can only answer that by reference to the history. My first instinct was flag, as I've indicated, rather than smoking gun. It was for that reason that I thought the sensible course was to ask Mr Yates to consider investigating the email further.

    It was clear to me from my discussions with Mr Yates that that wasn't an invitation that at that stage he was necessarily going to accept, so that option didn't seem viable. I then decided to ask Mr Perry.

    In retrospect, it was -- to pose a set of questions for Mr Perry was very difficult for him to answer when only looking and bearing down on the "for Neville" email. What I really wanted was some help on whether this was a sensible basis for looking again at any of -- for further investigation.

    But I certainly take the point. I was asking him to bear down on one single email out of context, but that was my secondary option at that stage. My first option was the one that I'd wanted to pursue on the Friday evening.

  • I understand entirely. The only reason that it's important to try and unpick all this is because of the concern about the time it took to get the whole thing going again.

  • And the allegations that have been made about why it wasn't got going.

  • The view of the law you express there, you tell us in paragraph 106, was one that you were later to reflect upon. Indeed, in 2010. Although it did form the basis of your evidence to the Select Committee on 3 November 2009.

  • Yes. Essentially, once David Perry had given me his advice at the end of 2009, I felt that I'd completed the exercise I'd set for myself. There were then some exchanges with Select Committees on discrete issues, but when I later came to look again at the law in 2010, I was concerned that that way, that interpretation certainly wasn't the only interpretation of those provisions.

  • What happens through the rest of 2009 we can cover reasonably briefly, Mr Starmer. You say in paragraph 108 that Mr Yates gave evidence to the Select Committee on 2 September 2009. It was on that occasion that he said that he completed his assessment of the case, his establishment of the fact exercise, in one day. That wasn't a point, though, which resonated with you until much later, was that right?

  • No. To be honest, I hadn't particularly focused on how long Mr Yates had taken. It's only recently I thought about whether it would -- in relation to my exercise, I asked the team to look at it. They came and presented something to me and I took time to study it. I didn't even know at that stage whether he meant that he spent a day on his part of the job, which his team had already prepared, or whether it was the start and the end of the exercise. I acknowledge that he said it in September 2009. I didn't hear it. If I read it, I didn't read anything particularly into it. I had understood he'd looked at whatever he needed to look to, to come to the conclusions he had, and it was as simple as that.

  • Implicit in that, I think, by the time you did realise the significance of the brevity with which Mr Yates had considered this on 9 July 2009, you became somewhat concerned, is that --

  • My concern then was that I had been told in July 2009, in confident terms by Mr Yates, that all of this had been looked at, it's nothing new. "Mr Starmer, you needn't concern yourself". When I really focused on the fact that this had all happened in a day, I became increasingly concerned about the confidence with which those answers had been given to me.

  • The only other relevant event, as it were, in 2009 is to be found under tab 66 which is our page 18657, which was your letter to the chair of the Select Committee.

  • Which gave the narrow view of the law. We know, because we saw it this morning, this was based almost word for word on Mr Mably's email which set out that narrow view, which we looked at with Mr Perry at tab 64.

  • Yes. I think it's fair to say that the team that were preparing my evidence for the Select Committees were drawing on the views that counsel had given them and double-checking them with counsel, and to that extent, whatever counsel recollected to be the position was then being put into my evidence to the Select Committees. I mean, I don't criticise them for that. In a sense, they didn't have very much else to go on.

  • Thank you. We're now into 2010, Mr Starmer. I've been asked to put to you a point on paragraph 114 of your statement, which is the reference to 24 February 2010 and the CMS committee publishing its report, which stated that the police had been wrong not to investigate further the contract or the "for Neville" email.

    The question is this: given that the CMS committee's conclusion differed from yours, didn't that cause you to reconsider, and in particular cause the police to carry out further investigation?

  • Well, I can't answer the second part of that. For my part, I think I felt that having gone through the exercise with Mr Perry, I'd exhausted any further work I could do on the "for Neville" email. I mean, I had suggested at the time it be further investigated, and was pushed back against that. I'd asked David Perry. He'd given me a series of answers. For me, that -- I wasn't sure what else, as DPP, I could do. I couldn't direct anything to happen at that stage.

    But I do accept that I could then have gone in for another round of meetings with Mr Yates in the way that I had in 2009, but at that stage certainly so far as I was concerned as DPP, after the end of July 2009, I hadn't looked at it in great detail and no new live case had come on to the CPS radar.

  • Thank you. We can fast-forward to 1 September 2010. It's page 18142, page 34 of 63, which is the piece in the New York Times.

  • Further matters came out over the succeeding days which I'm going to gloss over because they may be relevant to later trials.

    What happened at paragraph 120 is Mr Yates, on 6 September, made contact with the Crown Prosecution Service.

  • Telephoned the Chief Crown Prosecutor for London, who you say had had no dealings with the matter -- it's unclear why he did that.

  • I don't know why he did that.

  • And she sent you an email the following morning to say that Mr Yates wanted to bring you up to date with what they were doing. Apparently he had told her that he did not intend to reopen the investigation, but merely intended to clarify what had been said.

    Now, the email is tab 75.

  • Given what it says, I think we probably should gloss over it, but it's clear that Mr Yates wasn't going to take the matter any further at that stage, was he?

  • No. I was being told that he was not talking about a reinvestigation. This was coming, obviously, second-hand to me.

  • It may be that it went to your colleague rather than to your office on the basis that she answered the telephone, because it says he was calling to speak to the director.

  • No. Alison Saunders by then was Chief Crown Prosecutor for London.

  • I see, so in a different building?

  • So she was heading up a different team in London, not the specialist division that had been dealing with it, and would not, I would have thought, been answering the phones, just in the ordinary way.

  • To be fair, she may have been talking to him about something else.

  • I think I'd like to take you forward to paragraph 125, when you explain that you were beginning to have doubts, and you had been having doubts for some time, as to what you describe as the "emphatic view of the constructions of sections 1 and 2 of RIPA".

  • The more I looked at the advice that Mr Perry had given me in 2009, the more I was concerned that whilst it was undoubtedly one view, it wasn't the only view, and the more I looked at it, the more I was concerned that there was a wider view which was at least a tenable alternative.

  • So perhaps unusually you sought now two pieces of written advice, first from the original counsel, Perry and Mably, but secondly from someone new altogether, Mark Heywood QC?

  • Is that something you've often done, get two pieces of advice on the same point, or was this an exceptional course?

  • This was an exceptional course. I, looking backwards, was concerned at the way it had been put in emphatic terms in 2009. I was, looking forward, concerned that we once and for all really needed to have a clear view on this, because this was now September 2010 and I thought it likely that for the first time under my watch we would have to give a view on these provisions that others would rely on, and I wanted to make sure that I'd thought that through as carefully as I could before we gave advice.

    It was now becoming live to me. I was about to have to oversee advice on these provisions and I wanted to make sure I got it right, so I wanted the backward view and a forward view.

    I have to say, and this leads into further discussions, you would have noticed that Mr Heywood was jointly instructed by others, and in the background here was also a concern about the legislation. My view was: if it was unclear, that was extremely unhelpful, and at one stage I was of the view that that lack of clarity needed to be resolved and brought to the attention of others, and so Mark Heywood was really advising in a much broader sense on the legislation as a whole.

  • My concern was straightforward. If I said to any incoming investigative team, "Adopt the broad approach", they did that, built a case, and the court ruled that it was the narrow approach that applied, the case they'd built might not go very far. I didn't want to do that unless I'd got some pretty solid advice. I didn't want to take that risk, rather.

  • Mr Jay, have you moved on from the New York Times article?

  • Could I ask one question about that, if you don't mind, Mr Starmer. It's not the article itself, it's what happened thereafter. Because at paragraph 123 you make the point that one of the people who'd spoken to the New York Times was Mr Hoare.

  • Who'd made some admissions but also some serious allegations, and the question then arose as to whether he should be treated as a whistle-blower, a significant witness or a suspect.

  • And you make the point in your statement that Mr Husain didn't express a view and that it was an operational decision for the police.

    Would you ever be asked to advise about that sort of question? I ask for this reason, that here's somebody who's come out of the woodwork, as it were, and said this. If you're going to interview him as a suspect, there's a very real risk as to what will happen.

  • If you're not, then you're going to go rather further into what he might say, and so you might learn something.

  • I'm just interested to know -- I appreciate it's an operational decision for the police, but where the CPS comes in all this and whether you'd expect to be asked, whether that's the sort of question you are asked, and I'm not asking you to give a view about this case, but just so that we understand.

  • It varies from case to case, and in more sensitive and complicated cases we are asked, usually at an earlier stage, our views on usually the evidence. It may be in certain cases we would be asked whether it would be better to treat this witness in way A rather than way B, or at least what would the evidential ramifications be of treating the witness in way A rather than way B. So I wouldn't -- it wouldn't surprise me. It would be rare, but I wouldn't have any difficulty and it wouldn't surprise me if I saw that we'd been asked to give advice about whether it would be more sensible, if one was looking through a prosecutor's mind, to interview under caution or to treat the witness in some other way. I wouldn't -- I'd think it was rare but I wouldn't think it was strange and in an appropriate case I think it would be a good thing to do.

  • But you weren't asked in this case?

  • In this case, I think the police officer indicated, I believe in an email, that he might be interested in Mr Husain's view, but in the end, no view was ever expressed and the decision was taken to go ahead and interview under caution without any reference to us.

  • You got advice from Mr Perry, which we've seen this morning, which, as it were, rowed back from the sort of adamantine view he'd expressed the previous year and probably to the position where he was on 21 August 2006.

  • Now that he'd seen all the papers. He also made it clear that it wasn't necessary to resolve and be in the proceedings in the events which happened, whether the narrow view or the broad view was correct, for the I suppose simple reason that the point was never taken by Mr Mulcaire in relation to counts 16 to 20, he'd simply pleaded guilty?

  • Can I deal with this out of sequence in terms of your statement. Three days later, you got advice from Mr Heywood, who was, as it were, the fresh mind approaching this case.

  • His view, in a very detailed and thorough advice, which brought into play both underlying European directive and instructions to parliamentary counsel, was that on balance the broader view was correct. Have I correctly summarised it?

  • But I don't think we need look at his advice.

  • No, no, no. There was another significance of Mr Perry's -- Mr Perry advised in exactly the way you'd set out and by then he'd had the opportunity to look more carefully with more material and set out in much fuller terms the approach that had been taken, and I was perfectly satisfied to accept that, the way in which he said it had been approached.

    But as I set out in paragraph 129, it occurred to me, because I had been concerned about the "for Neville" email back in July 2009, I was concerned to know whether, given that Mr Perry was now expressing a slightly different version of the interpretation to the one he expressed in July 2009, whether that affected his view of the "for Neville" email, because I was slightly concerned that it may have been the narrow approach that it articulated at the time that made him think that there was nothing, as it were, further to -- the email would take us no further.

    So, really out of an abundance of caution, I asked Mr Perry to look again at his advice on the "for Neville" email and put it through his new -- the interpretation that he had set out in September 2010 to assure me that his view was still the same or, if not, to let me know.

  • Your concern was that it was at least possible that a particular view of the law might colour counsel's approach to the evaluation of the evidence in the case, was that it?

  • Yes. He'd set out an emphatic view of the law in 2009 in the middle of an advice on the "for Neville" email. He'd then, a year and several months later, provided a fuller advice, which didn't take the emphatic view in the same way, and I was concerned to know whether that affected the conclusion he had reached in July 2009, or whether his conclusion remained the same, notwithstanding, as it were, the slightly changed position on the interpretation.

  • Yes. But the police might want me to put the point to you in this way, that it was Carmen Dowd's view of the law expressed on 25 April 2006 which coloured the police's assessment of the evidence, and their approach to the investigation, because the narrow view of the law required them to do far more in terms of the investigative choices they had to undertake. Do you see that point?

  • I do see that, and let me deal with it. I don't doubt that the police thought that they might have to prove that a message had been intercepted before it was listened to and that's why they bothered to get the evidence they did, technical evidence, to try and prove that. The issue I've always had here is whether any of that affected the scope of the investigation, in other words whether advice from the CPS was the reason why the investigation didn't go further in 2006/2007.

    I do not think it did, not least because on my analysis of the advice at no point did Carmen Dowd ever suggest that RIPA alone was the offence that could be relied on. She initially said RIPA and the Computer Misuse Act. It's true to say the Computer Misuse Act option was considered and discarded later on, but by then the conspiracy option had been opened up, so at no stage could anybody have thought that the only basis for prosecuting is RIPA. That was my first point.

    My second point was that Carmen Dowd had always expressed herself in a pretty provisional way. She said, "This is my view, we're going to have to come back to it." It was obvious to me, from looking at the indictment, that the team as a whole could not have been taking the narrow approach, for all the reasons that were rehearsed with Mr Perry this morning, and beyond all that, I couldn't see then and I can't see now how the narrow interpretation of RIPA would stop you even investigating other defendants. Because until you investigate, you don't even know whether you're going to get evidence which fits the narrow interpretation.

    So there was all the analysis of the facts and the history that led me to reject the suggestion that at one stage was being put forward, that this investigation was curtailed because of CPS advice, and there was the common sense that you don't not investigate because of a narrow legal -- even if you genuinely think there's a narrow legal interpretation, because you just don't know what you're going to turn up, and an investigation could have turned up evidence which fitted the narrow view.

    So I don't think it accorded with the history and it didn't accord with my commonsense approach.

  • Yes. It might be said in addition that anybody who was at the conference on 21 August 2006 would clearly have understood that if other defendants were going to be brought into the frame because the evidence demonstrated that they might be guilty of offences, the perfect vehicle for bringing them in was the offence of conspiracy, which would not require the narrow view of the law?

  • Okay. Mr Perry, to go back to September 2010, was asked by you to review the "for Neville" email through the prism of the broad view of the law and his answer was the same, but he expressed himself -- tab 86 -- really in terms of the further investigations approach rather than the smoking gun approach?

  • He said in paragraph 8:

    "I should also make clear that the conclusion reached in my draft advice, namely it's unlikely I would have advised the CPS/MPS that further investigations should be undertaken in relation to the email of 29 June 2005, remains unchanged."

  • Yes. That was really my only concern at that stage in relation to, as it were, double-checking Mr Perry's advice. Or asking him to do so.

  • It would have been extremely odd had he said it had changed as a result of his reformulation of the law --

  • -- but you were certainly right to ask him.

  • I appreciate that. I had been concerned in 2009 about the Neville email and I had remained concerned about it and I was perhaps out of an abundance of caution asking Mr Perry again just to look at it to assure me that there was no change of position.

  • To be fair, to add to the picture, Mr Heywood made the point, as I've also made perhaps more laboriously than he did, that the inchoate offences of conspiracy or attempt would not depend on a narrow view of RIPA, and he said that in terms in his advice, didn't he?

  • That's right. And from Mr Heywood, I was very concerned if I was going to be asked at this stage to advise the police, either in relation to the matters arising from the New York Times or at any future stage, what was going to be said, as it were, on my watch in my name.

  • Thank you. On 1 October 2010, there was another meeting between police officers and your officials, and we've seen tab 89 already, which is the notes of the meeting.

  • I took Mr Perry to paragraphs 3.10 and 3.11 of that.

  • There are other parts of the notes which we can't look at for present purposes because they might bear on an investigation.

  • Yes. I wasn't at the meeting. I had always assumed that that was Mr Husain and Mr Clements summarising what they understood to be Mr Perry's position to those present at that meeting; whether what's recorded is an accurate summary or not, I simply don't know.

  • There was another meeting later that month on 19 October. You refer to that in paragraph 136.

  • There appear to be some notes, what may be notes, of that meeting at the back of the document in tab 92.

  • Tab 91 are the notes of the meeting. Tab 92 is a document that Simon Clements had with him at the meeting and some notes he made for himself, but the minutes are at tab 91.

  • Thank you. Tab 2 is a sort of aide-memoire, 18756. There is an issue, I don't think you can really take it further, but I should refer to it. You see the arrow slap in the middle of the page?

  • "Alerting them to LE6 understanding."

    And then:

    "DPP [underline that] no one wants to reopen the investigation."

  • I think the suggestion might be that you were expressing a degree of frustration that no one in the police wanted to reopen the investigation, but --

  • I don't recall what I said. I've seen this and looked at it carefully and asked Mr Clements what he was recording and he recollects that I was expressing a frustration that nobody appeared willing to reopen this investigation.

  • In the light of your earlier evidence from the previous year, that frustration might be an accurate reflection of what you were saying a few minutes ago.

  • Precisely. It wouldn't -- I honestly can't remember what I said at that meeting but I obviously said something. Mr Clements does remember it and wrote it down at the time and thought I was frustrated because it appeared to me that others wouldn't reopen the investigation.

    I'd had the meeting back in 2009 where a course of action I thought was reasonably sensible didn't look as if it was going to find favour, and I'd been told in September 2010 that whatever else was going to happen, this was not going to be reinvestigated. I think if I was expressing any frustration, it was probably borne of those two things.

  • Thank you. The more nuanced view of the law found its way into the letter to the chairman of the Home Affairs Committee this time.

  • It's at tab 93, but you set out the relevant part at paragraph 137 of your witness statement.

  • I don't think we need look at that, but it reflected the view of two distinguished silks now that certainly one of them was saying that the broad view on balance was right, and the other was saying it's highly arguable both ways?

  • Yes. The reason -- it was set out in that letter, and the version that's in paragraph 137, quoted, was the version that I asked my prosecutors to use in any advice they gave from then on, because I didn't want there to be any lack of clarity at that stage as to the approach that could be taken.

  • Now we move on to Operation Varec, paragraph 139.

    We are, I'm afraid, going to have to skate over some documents because in my view they can't be looked at now because they could bear on the ongoing police investigation. But can you without referring to those documents summarise what Operation Varec was about?

  • Yes. As I understand it, there was -- as a result of what was published in the New York Times, various individuals were approached and some were interviewed under caution. At the end of that exercise, the Metropolitan Police, although they considered that they didn't have sufficient evidence to reopen the investigation at that stage, required or wanted advice from the Crown Prosecution Service and advice was given.

  • You gave a press statement on 10 December 2010, which we can look at under tab 97.

  • Which really sums up the then contemporary thinking. It's page 18806.

  • You referred to the history, you referred to the New York Times piece, the fact that Sean Hoare had been interviewed but had not co-operated, and you said:

    "The CPS and the MPS intend to convene a panel of police officers and prosecutors to assess those allegations with a view to determining whether or not investigations should take place."

  • That's only in the event of further allegations being made, isn't it?

  • That's precisely right. Allegations had been made in September. A number of individuals had been interviewed under caution. Pretty well all of them had said nothing under caution, and therefore that didn't yield a great deal. But it occurred to me and to others that there might be other allegations and that we needed, going forward, to think of a sensible way of making sure that, if possible, there was a joint approach from the outset as to how they'd be handled and hence a panel.

  • So in short, the police had gone through the New York Times article and picked up all the witnesses named in that article and sought to get some information from them --

  • What they hadn't done, and it's quite clear they hadn't done, was open the room that was marked "Caryatid", with all the evidence that was in the room?

  • We're going to move to tab 98 and therefore into the events of 2011.

  • The year started with more questions from the Guardian on 6 January and this was in consequence of documents disclosed in the Sienna Miller litigation. You explain in paragraph 148 that these weren't easy questions to answer.

  • So there you had two openings. One was not to answer them, or two, to ask for more wide-ranging examination of all the materials available.

  • And you preferred the second option, notwithstanding the resource consequences?

  • What was your thinking behind that?

  • I was -- it was a combination, I suppose, of frustration and concern, and what appeared to me to be emerging from the Sienna Miller civil action cast some doubt on what I'd understood to be the position, and I felt I'd been in that place too many times and that at that stage, even though it was -- would be more resource-intensive, a more wide-ranging examination was necessary, at least to reassure me about the position.

    What then happened, and I think this is paragraph 149, was that as I understood it, some of the information that was emerging from the Sienna Miller civil action I was told had in fact been amongst the unused material.

    Now, this was the second time this had occurred. The first time was in relation to the Neville email, and now it was happening again in relation to the Sienna Miller material. And I'm afraid at that stage I thought nothing less than a root and branch review of all the material that we have and the police have is now going to satisfy me about this case. And that's why I indicated in fact to Tim Godwin, who I think was then Acting Commissioner, that I had for my part reached the view that we could no longer approach this on a piecemeal basis looking at bits of material and we really had to roll our sleeves up and look at everything.

  • Yes. So there was a meeting then on Friday, 14 January. You say in your statement Mr Yates was there, not Mr Godwin.

  • No, I don't think Mr Godwin came. I have a vague recollection that he may have arrived at the very end of the meeting, but that's -- it's not recorded and that may not be right. It actually I don't think makes any material difference, but he certainly wasn't at the main part of the meeting.

  • Yes. Again the note of the meeting in the bundle could be clearer, and to that end I've caused clearer copies to be taken. Do you have a satisfactory copy?

  • This is tab 101, I think.

  • I have a copy that is reasonable, I think, from my point of view.

  • You kick off by setting out your thinking:

    "We're labelling the problem that Carmen Dowd is not here, KM ..."

    That is?

  • Ken MacDonald. I think I had spoken to Ken to see whether he had any recollection and he had very little recollection.

  • You say:

    "... now attempting to say case closed with pleas in 2007."

    Does that then say:

    "Won't go away (eg New York Times). Civil litigation leading to disclosure of 2006 material."

  • I can't read the next bit very well.

  • Is it "altering"?

  • I'm not sure. "Allowing"? I don't know.

  • It's "allowing" something.

  • Then it says:

    "Hard to avoid questions and various committee [something] one asking questions, therefore [you] and John Yates may end up giving evidence."

  • "And John Yates may end up giving evidence."

  • "Problem we have difficult to say what evidence we looked at despite the fact that Louis examined it. Need to know what ..."

  • "... assessment was made of the evidence of others and impact of it."

    I think.

  • Then you posed this as a question, really:

    "Time has come to reconsider everything that is/was available therefore enabling us to give comprehensive answer to current/future questions."

  • I think I was not only concerned that the Guardian were asking probing questions, but given the degree of interest, I was mindful that I was likely to be called before a Select Committee to give evidence, and for all the reasons I've already stated, I took the view that I needed a bit more assurance about all of this.

  • What Mr Yates said may be of interest to us. Can you decipher what the next page starts off with?

  • "I have no problem but it's the handling, that is why are we doing it now. John Yates and I have always said that if there's new evidence we'll examine it and I stand by the interview I gave in 2006."

  • "Is there anything to add on ..." presumably Goodman and Mulcaire?

  • Goodman and Mulcaire.

  • I'm not sure what interview was given by him in 2006.

  • Didn't he give a press interview at the same time that he made the statement?

  • He was referring to 9 July.

  • That's 9 July 2009.

  • Oh. Oh, "stands by the investigation".

  • Sorry, it's "investigation".

  • I'd like to gloss over the next bit. Can we move on to --

  • I think there's then -- I think I was --

  • Can we just take that off, please.

  • One of the concerns I had was that some store was being -- some weight was being placed on the fact that Mr Mably had looked at the unused material, but knowing what the disclosure exercise is, and how it's approached, and knowing that Mr Mably had in fact no recollection of some of the documents I discussed with him, I don't think he'd looked at all that material, nor in fact would he necessarily have needed to do so for disclosure, and he was looking out for a disclosure purpose, and therefore I was concerned that that hadn't been looked at by a prosecutor with a view to considering issues such as were there other defendants, et cetera.

  • Certainly. Then the next page, the third page of this starts off:

    "The questions of civil case is difficult because Louis Mably is the only one who can answer."

    That might not say "civil".

    Mr Yates then says:

    "Queen v Blackburn may help in judicial review."

    I think that's a very old decision of Lord Denning. I'm not sure what that has to do with it, but never mind.

  • It's all about whether you can tell the police to prosecute.

  • You can't judicially review prosecutorial decisions. Okay.

  • I think he was contemplating whether, if anyone judicially reviewed, what the prospects might be.

  • You said we don't want to lose.

  • I was less concerned than Mr Yates on what might happen on the prospect of judicial review. I just wanted an answer to some of the questions at this stage.

  • I think we can probably move on to the next page, because parts of the next page have been highlighted in my copy, possibly intentionally. Can you decipher what is attributed to you, Mr Starmer, at the top of the next page?

    "It is only [something] for new material. The answer is --" is that "not now"?

  • I think there was -- we were considering, one, do we simply ask the panel to look at this, but the panel had been set up to look at new allegations, and I was concerned that I didn't so much want answers to the question what does any new material show, I actually wanted an answer to the question in relation to all of the material. And so the debate was really at that stage, I think, do we ask the panel to look at this or should we do it some other way, and I think my view was probably not the panel, because that had been set up for new material and I didn't just want -- I was concerned that we were looking at just bits of new materials that came up or were missing the opportunity to look at the whole lot.

  • Yes. Then a police officer who is DH says:

    "Operation Varec is the only new material. In terms of Goodman/Mulcaire there's nothing new. All the stuff is on the system."

  • Then Mr Yates says:

    "Puts both organisations in difficult position. What did we do in 2009?"

  • So he's concerned about reputational issues now and suggesting you're in the same boat as he is. Then you say -- I'm not quite sure what you then do say. Not very clear.

  • I looked at the decisions made and whether they were correct. So I was indicating to him what the scope of my exercise was, because I, for my part, thought I was in a different position to Mr Yates when it came to what had happened in 2009. I for my part didn't have any concern about looking at this material again.

  • Then you made it clear that "this is a broader examination to go before panel"?

  • That's 2006 and subsequent. So you're saying we're going to look at everything?

  • Look at everything we had then, look at everything we have now, put all of it together.

  • Can I ask you this, without necessarily ploughing through the text of all of this document now. What was the mood like at this meeting? Was it all sweetness and light between you and Mr Yates or was it something different?

  • I was absolutely clear in my mind at the beginning of that meeting I was going to settle for nothing less than a full review of all this material unless somebody blocked me access to it, and I approached it in that way. To be fair to Mr Yates, he did not seek to block that approach, and in the end agreed to it, but I have to say by then I had reached the stage where I really was not in the mood for being dissuaded from my then course of action, I'm afraid.

  • Yes, we understand. Matters then moved quite swiftly to --

  • I think we'd better give the shorthand writer a break.

  • So we'll move a little bit slower than swiftly.

  • (A short break)

  • During the course of the last session a document was put on the screen for those in this room and in the marquee to see. Mr Jay made it very clear that some care would have to be exercised in relation to references to the document, and I noticed that part of the document which should not have been displayed was in fact displayed. I do not criticise anybody for that, but there it is.

    To such extent as it is possible, no reference should be made to that document at all. I say to such extent as it is possible. I obviously cannot call back that which is already in the public domain, but I would be grateful if in the spirit that I have undertaken this entire Inquiry, those who are reporting what has been going on should have regard to the concern that I have just expressed.

    Is there anything else I can do, Mr Jay?

  • Mr Starmer, to complete the chronology, because we are nearly there, you decided after this meeting that your principal legal adviser, Alison Levitt QC, should carry out the review you referred to.

  • Following discussions with the attorney, a press statement was released, but to some large measure it was superseded by the commencement of Operation Weeting, but may I ask you what's happened to the review in the light of Operation Weeting?

  • The review was begun, but 12 days later the investigation was reopened. My principal legal adviser, Alison Levitt, is in charge of the CPS team now advising the police in relation to the reopened and much wider investigation, and the view I formed is that the review can't be completed until we've reached decisions one way or the other whether anybody should be charged, and I certainly wouldn't want to be publishing any review before that stage has been reached. So to some extent, Alison Levitt QC is now conducting the review alongside all the other material that is now coming in on the new investigations.

    But I should make it clear I had intended the review to be completed and to have reported on it, but once the investigation reopened, it was obvious to me that it wasn't a good idea to publish the results of the review until we had completed whatever work we need to do in relation to whether or not there should be charges.

  • Although to some extent the very detailed chronology that you've provided to this Inquiry does put in the public domain the various steps the CPS have taken over the years.

  • No, that's absolutely true, and to some extent, once this Inquiry was set up, it was obvious that most of the questions that I had any concerns about were going to be addressed through this process in any event.

  • I'm pleased somebody thinks that something's going to be addressed by this Inquiry. I'm not sure after yesterday that everybody does. All right, yes.

  • Mr Starmer, we heard evidence from your predecessor, Lord MacDonald, this morning as to the DPP's approach to the press and media relations generally. Is there anything that you wish to add to or subtract from that, at least as regards your tenure of the position of Director of Public Prosecutions?

  • No. I take the same approach as my predecessor. I've really built on the platform that he built, and I have approached it in much the same way for the same reason.

  • Yes. The only other matter -- I'm going to take the rest of your evidence as read, but one core participant had a couple of outstanding questions on your first statement. Unfortunately, I've mislaid them. You have been given advance notice of them. Are you able to deal with those questions?

  • In other words, do you have the questions?

  • I have them now.

  • From memory, I think one of them, at least, was: is it right that the CPS doesn't very often prosecute journalists?

  • That certainly was the question.

  • And the other was in relation to the Damian Green case, as to whether or not we considered any journalists in the course of deciding that case.

    If I could take them in reverse order, as far as the Damian Green case is concerned, the answer is no. It's true some of the material which it was alleged had been leaked found its way into at least two national newspapers, but so far as I'm aware, there wasn't a police investigation into the journalists, and I was certainly never called upon to make any decision in relation to the journalists.

    In relation to the rarity of prosecutions of journalists, it is true, they're rare. Certainly from memory I don't think I have had to look at a case since I've been in post where we've prosecuted a journalist. It is rare. It does happen on occasions, but it's rare.

  • I think the follow-up question was: is there a reason for that, apart from maybe the obvious ones?

  • It's very difficult to give a reason for that. Rarely do cases involving journalists come to us for consideration, and therefore I think the issue is to do with the approach that's taken in the investigation.

    The broad view is that there's a public interest in freedom of expression and the free flow of information and for that reason, the conduct of most journalists is not considered by those conducting criminal investigations and rarely, if ever, are there clear examples of them breaking the law that have been brought to the attention of the CPS.

    I think that's the best I can do. I mean, we have not been called upon to consider many cases at all.

  • Yes. Those are all the questions I have for you, Mr Starmer. Thank you very much.

  • Mr Starmer, I understand that you're still working on the matter that we discussed on the last occasion and I'm very grateful for the continued efforts that you're making in that regard.

  • It only remains for me to thank you and your team for the obvious amount of work that's been put into the chronology and other assistance that you've provided the Inquiry with. Thank you.

  • Right. Is that it, Mr Jay?

  • It is. I've been asked to read into the Inquiry one statement. That's the evidence of Mr Wissgott, which I think relates to the Police National Computer.

  • Thank you very much indeed.

    Right. The probability is that the Inquiry will resume with evidence on the week commencing 23 April. If in the meantime there is any aspect that needs to be addressed, I'm sure that we'll be informed. I'm content to allow core participants to deal with the additional questions of law that were discussed yesterday by the end of next week, but I do intend to provide a series of decisions comparatively shortly thereafter.

    Thank you very much. I trust everybody has a reasonable break.

  • (The hearing adjourned until the week commencing 23 April 2012)