When Reporters Cross the Line

by Stewart Purvis

  … much of its behaviour was outrageous. It was not uncommon for reporters to steal photographs from homes. Blatant subterfuge was commonly used. There were no restraints on invasions of privacy. Harassment was the rule rather than the exception.730

  Dacre was keen to point out that the press was now ‘vastly better behaved’.

  In March 2003 two editors from News International, the British newspaper arm of Rupert Murdoch’s News Corporation, appeared before a parliamentary committee. The then editor of The Sun, Rebekah Brooks (née Rebekah Wade) told the House of Commons Culture, Media and Sport Select Committee, ‘We have paid the police for information in the past.’ Andy Coulson, then editor of The Sun’s sister paper the News of the World, was sitting beside her and interjected, ‘We have always operated within the code and within the law.’ Labour MP Chris Bryant told them he believed it was illegal for police to be paid for information. Mr Coulson replied, ‘As I said, we have always operated within the code and within the law.’

  The contradiction between Rebekah Brooks saying The Sun had paid policemen in the past, which was illegal, and Coulson saying they operated within the law was obvious for all to see.

  Mrs Brooks later said that what she had meant was that there was a widely held belief in the industry that police officers were sometimes paid, but that didn’t mean it was a widespread practice. She had never paid a policeman herself or sanctioned such a payment.

  Private eyes

  One long-standing practice which illustrates the attitude of parts of the media concerns police radio messages, which for many years could easily be heard on public airwaves. Under the Wireless Telegraphy Act of 1949 it was and is perfectly legal to listen to police radio transmissions in the UK but illegal to ‘act upon any information’ picked up from such broadcasts. So, for instance, journalists should not, in law, go to the scene of a crime to report the story if they were alerted to it by what was said in a police radio message. But one training manual for broadcast journalists still advises:

  The surest way to keep in touch with major breaking news is to listen to emergency services radio. By monitoring the transmissions of police and fire services you can hear the news as it is actually happening, instead of waiting for the official version to be collated and sanitised by a spokesperson.731

  Some newsrooms decided to get this done for them. Private firms would be paid to monitor police radios and then alert news desks when a big story was breaking or developing. Thus a practice arose whereby ‘journalism’ of this kind could be outsourced to a third party who would be paid for it and carry the can if and where the line was crossed between lawful and unlawful investigation. This approach began to be emulated in other investigative fields and lines became increasingly blurred. Significantly the first (mobile) phone-hacking case taken to court involved a collaboration between a reporter and a private investigator.

  These arrangements had the benefit of offering editors a certain distance from potential exposure to risk in the information-gathering process. The former BBC correspondent and now media commentator Nicholas Jones has highlighted how in News International senior journalists with their ‘own sources’ had access to a ‘payment process’ to reward ‘external providers of information, not just private investigators but also individual sources’. The need to involve an editor would not be triggered until a reporter exceeded limits set by a managing editor.732 If the reporter wanted a higher cash limit that was something the reporter could agree with his or her managing editor directly.

  As new forms of electronic communication and data transmission blossomed at the end of the last century the authorities struggled to keep track of what private investigators, many of them former police officers, were up to, especially on behalf of the media. And when they did occasionally stumble across illegal activity underlying news-gathering, the lines of responsibility for taking action were not always clear.

  In May 2006 the Information Commissioner’s Office (ICO) published a report titled ‘What Price Privacy? The Unlawful Trade in Confidential Personal Information’. The ICO referred to ‘a major case’ where private information about individuals had been supplied to 305 journalists on various newspapers by a private detective. The apparent thoroughness of this report was praised at the time. But in 2011 there was evidence that rather than being a symbol of success for the authorities it symbolised their failure. The ICO’s senior investigator revealed his frustration at what he felt to be unjustifiable delays in publishing what he had found.

  In his written evidence to the Leveson Inquiry, Alec Owens wrote:

  The publication in May 2006 of ‘What Price Privacy?’ was no more than an attempt to lock the stable door after the horse had bolted in an effort to cover up the fact that the ICO had failed in its duty to conduct a full and proper investigation into the conduct of journalists at the time when they could and should have.

  Owens said that in 2003 the then Information Commissioner, Richard Thomas, decided that the involvement of the press would not be dealt with by the ICO and the police through the courts. Owens was told not to contact any of the many newspapers which had used the detective’s services.

  Instead Thomas would write to the chairman of the Press Complaints Commission (PCC), Sir Christopher Meyer, formerly John Major’s press secretary in Downing Street and British ambassador in Washington. Thomas told Meyer that he and the PCC would first be given a chance ‘to deal with the issue in a way which would put an end to these unacceptable practices across the media as a whole’.

  He proposed that the PCC should revise its code of practice and that this ‘could provide a more satisfactory outcome than legal proceedings’.733

  In June 2004 the PCC code was amended for a number of reasons, one of them to reflect developments in technology. But relying on the PCC and the updating of its code caused some problems. This approach fundamentally failed to comprehend the role and the powers (or lack of them) of the PCC. Confusion about the ‘self-regulation’ of the press became another factor in the failure to get to the heart of phone-hacking.

  Although Sir Christopher Meyer and his predecessors regularly called the PCC a ‘self-regulator’, it never was, something a new PCC chairman, Lord Hunt, confirmed in 2011. It was a body for handling complaints about what appeared in newspapers, no more, no less. It did not have the powers, or indeed the resources, pro-actively to investigate media standards and impose sanctions on wrong-doers in the press.734

  During the phone-hacking affair ambiguity and confusion about where lines should be drawn was not confined to the press, its ‘self-regulators’ and those like the ICO who believed naively that the regulators represented a solution to a problem. The police and the public prosecutors were not immune either. Even after the first prosecutions came to court and resulted in a conviction there seems to have been confusion about the law of the land.

  As Tom Bradby remembered at the time of the royal phone-hacking, the British media had form when it came to publishing information from royal phone calls in tabloid exclusives.

  The origins of the so-called ‘Squidgygate’ and ‘Camillagate’ tapes in the early 1990s were never fully revealed. But no one was ever charged and one legacy of the saga was that if the media published the contents of private phone calls, it seemed it was unlikely that there would be any legal implications.

  The Regulation of Investigatory Powers Act 2000 (RIPA), which contained a section about the interception of communications, should have changed that.

  Differing views

  In July 2009, the House of Commons Select Committee on Culture, Media and Sport, which had been battling against the indifference of much of the rest of the British Establishment to get to the truth about phone-hacking, was making progress. Nick Davies had published a story in The Guardian about the scale of illegality at the News of the World. The new Director of Public Prosecutions (DPP), Keir Starmer QC, called for an internal review of the evidence which the police had given the Crown Prosecution Service back
in 2006. A week later he announced there was no need to formally re-open the case. He told the Commons committee that the law covering phone-hacking required that ‘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’.

  In effect, the DPP was saying that it was only an offence to listen to a voicemail if the message was on its way into the recipient’s inbox or sitting in there waiting for him or her to listen to it, but not once they had listened to it and saved it. This became known as a ‘narrow’ interpretation of the RIPA and the police said it presented a real obstacle in bringing prosecutions on behalf of victims. How could anyone be sure whether a phone-hacker heard a voicemail before or after the intended recipient?

  But then Britain’s state prosecutor did an about-turn; he decided that the opposite of what he had just said was true. ‘An offence may be committed if a communication is intercepted or looked into after it has been accessed by the intended recipient.’735

  How could Keir Starmer QC have performed such a volte-face on such an important issue? He explained to the Leveson Inquiry that he had relied on the advice of David Perry QC, who had been the prosecuting counsel in the only phone-hacking trial to date and who would have known if the ‘narrow view’ had been taken then. And who or what did the learned QC consider and consult before advising the DPP? Why, none other than a document prepared by a policeman, Detective Chief Superintendent Williams.

  Mr Perry explained to Leveson that his own recollections and those of the detective ‘were at fault. And the moral of the story is: don’t do advices overnight if you don’t have the papers.’736

  It turned out that MPs had been given important legal advice from the DPP who had got it from a QC who had got it from a policeman who had allegedly got it wrong. But now it was clear that it didn’t matter if the voicemail was hacked before or after the recipient had heard it; to do so without prior authorisation which was provided for in RIPA was unlawful.

  Another significant moment occurred in January 2011, when Scotland Yard had announced that it was launching a new inquiry into phone-hacking.

  In the face of increasing public and political concern and with all the enthusiasm of a convert, Scotland Yard found substantial resources for initially one, but eventually three, parallel investigations: Operation Weeting into allegations of illegal mobile-phone voicemail interception, Operation Tuleta into allegations of computer-hacking and Operation Elveden into allegations of illegal payments made to public officials. In addition, Operation Rubicon investigated allegations surrounding the former MSP Tommy Sheridan’s defamation action against the News of the World and his subsequent conviction for perjury.

  Investigations have resulted in a spate of dawn raids, arrests and charges affecting both tabloid journalists, police and other public servants. They were still ongoing at the time of writing and will have a serious impact on media–police relations for a very considerable time to come.

  This was extensively addressed in the Leveson Inquiry and a succession of witnesses from the media, the police and the world of politics was processed at the televised hearing. Rupert Murdoch’s newspaper empire and many of its key personnel were subjected to a particularly thorough investigation given its connections with and influence over decades of successive governments irrespective of colour. Leveson probed not only in relation to phone-hacking but also into the branding of innocent people as murder suspects without adequate evidence and stories published which prejudiced the due process of criminal cases. It was also becoming widely known that News International was settling civil actions for violation of individuals’ right to privacy, despite extensive attempts to hush them up through confidential settlements. Confronted with the savaging it was getting during the inquiry, hostility from the public and attacks from elsewhere in the printed and broadcast media, the proprietors of the News of the World (the Murdoch empire’s British flagship Sunday tabloid) panicked.

  The company’s mother ship in the US, News Corporation, had become worried about the possibility of legal action in America over the failure of the London management to be seen to be getting to the bottom of phone-hacking.

  At its headquarters in New York, News Corporation set up a Management and Standards Committee (MSC) with a mixture of British and American executives, and started re-opening the files at NI’s headquarters at Wapping in London. Material, the existence of which had previously been denied, was found and indiscriminately handed over to the police.

  Naming names

  News Corporation breached one of the few lines that almost all journalists agree should not be crossed. Its knee-jerk attempts to staunch public criticism of the wider group, unalloyed by the closure of the News of the World as a result of revelations in the Leveson Inquiry, would reveal the names of public officials who gave them information or stories. The decision caused a former reporter on the News of the World, Tim Wood, to say that News International had broken ‘the first rule of journalism by failing to protect a confidential source’.

  As Wood came towards the end of a night shift on a Saturday morning in September 2010 he had taken a seven-minute phone call. On the line was someone who identified themselves as a detective and told him that Scotland Yard was launching a new phone-hacking investigation into his paper. Wood sent an email to his bosses but the paper did not follow up the call; they were suspicious that it might be a ‘sting’ by someone looking for money. Wood thought that that would be the end of it – eighteen months later he was contacted by the police and shown the email. It had been handed over to the police by the MSC executives.

  Wood’s disclosed email made him a reluctant prime witness against Detective Chief Inspector April Casburn, aged fifty-three, from Essex. She was found guilty and sent to jail for fifteen months for misconduct in public office. The judge said her call was ‘a corrupt attempt to make money’. Other policemen and public officials were to follow her to prison on other charges.737

  After the trial of April Casburn, Tim Wood wrote:

  The MSC’s betrayal threatens the confidence of any future source who is thinking of going to News International’s four newspapers and hoping to remain anonymous … It also threatens the ability of reporters on the publisher’s titles – The Sun, The Times and their sister Sundays – to operate effectively in the future. Indeed, the MSC’s actions jeopardise the work of all journalists.738

  Soon after, Nick Cohen, the Observer columnist and anti-censorship campaigner, wrote that ‘one of the largest news operations in Europe is collaborating with the state with a vigour and thoroughness unmatched in the history of democratic nations’.739

  15

  THE MORALS OF THE STORIES

  During Lord Justice Leveson’s public hearings his star inquisitor came face to face with the man whose decision to withdraw his newspapers from the Press Complaints Commission had become known as ‘the Desmond problem’. The exchange between the QC and the proprietor of four national newspaper titles740 seemed to summarise the gap between the law and the media at its widest.

  Robert Jay QC: What interest, if any, do you have in ethical standards within your papers, or is that purely a matter for the editors?

  Richard Desmond: Well, ethical, I don’t quite know what the word means, but perhaps you’ll explain what the word means, ethical.

  Robert Jay QC: I think it is paragraph 22, perhaps, of your statement. You make it clear everybody’s ethics are different: ‘We don’t talk about ethics or morals, because it’s a very fine line…’ The very use of that term or language would suggest that certain things are on the right side of the line and certain things are on the wrong side of the line. Can we agree about that?

  Richard Desmond: As I say in my statement, we don’t talk about ethics or morals because it’s a very fine line and everybody’s ethics are different.

  When Leveson finally reported at the end of 2012 it was inevitable that frustrating moments such as t
hese would leave a trace.

  In an article for the Guardian website’s ‘Comment is Free’ section, I reduced his 2,000 pages to one paragraph of seventy words:

  Leveson: The press – but not politicians or the police – have been very naughty boys. Your ‘independent regulation’ plan is useless – adopt mine. I can help you cut your libel bills via an arbitration arm but we need a law to make this happen.

  Cameron: I like the ‘Leveson principles’ but not a Leveson law.

  Clegg: I like them both.

  Cameron: Let’s have another debate to get me off this hook.

  The Prime Minister’s advisers told him that the way off the hook was to create a statute that wasn’t a statute but a ‘Royal Charter’. When the press didn’t like the Royal Charter that Parliament endorsed, they came up with their own. Six months on from Leveson’s report the two sides were still miles apart; whatever regulatory structure finally develops from the post-Leveson debate, it will be more independent and more rigorous than any previous attempt.

  The dispute about regulatory models has overshadowed many of the benefits which I believe have been derived from the Leveson process and which are also relevant to the issues we have raised in earlier chapters. Buried away in the transcripts of the hours of hearings is a useful Leveson tutorial. More specifically it is Leveson explaining how the law recognises that sometimes it is acceptable to break the law.

  I think there’s a perfectly legitimate distinction between invading privacy, with all the civil responsibilities that that entails, and deceptively obtaining material, if it’s in the public interest, where there is a strong public interest, and deciding: ‘Well, I’m prepared to break the criminal law to do this.’ Now, there is a distinction between the two. Whether you want to apply it is obviously a matter for you.