The Legality of Craig Whyte Recording David Grier – Me at Scotzine

I have penned typed a few thoughts on the legality of Mr Whyte’s taping of his lengthy chat in the club with Mr Grier.

Andy Muirhead at Scotzine.com has been kind enough to post it.

The short version?

Was it illegal for Mr Whyte to record his chat? No.

Could Mr Grier act to stop Mr Whyte selling the recording? Probably.

Is the recording admissible in court proceedings? If the court considers it is relevant and does not sufficiently offend against public policy considerations, then yes.

Understanding the New UK “Cookie Law” – Guest Post By Laura Clarke

On the 26^th May this year UK cookie laws were introduced, but this is nothing new, they were actually incorporated into UK law a year ago. This happened after EU privacy legislation ruled that sites should be more transparent in the way they use cookies but webmasters were given a one year grace period to ensure that their websites met with the new regulations.

So what does this new cookie law mean?

Put briefly and to the point the new cookie law requires websites to ask for user consent to store personal information on their computer, phone, tablet etc. thus making users more aware of how much data is collected about them.

But aren’t some cookies necessary?

Some cookies are exempt from this new law as they are vital for the smooth running of sites. These include shopping baskets on retail sites so that the site can remember all the items a shopper is requesting. These types of cookies are “first party” and are seen as the good guys of the cookie world.

News of the World, Hackgate and the Police Investigation – Part 2

What Did the Police Uncover and What Did they Make of it?

 

Since I first drafted this post, the news about  developments has kept coming so fast, there has not been time to hit the “Publish” button!

What I wanted to do was to look at the evidence given by DCS Williams of the Metropolitan Police in the Tommy Sheridan trial to see what it told us at that stage (December 2010) about what the police had actually uncovered as part of Operation Caryatid.

In light of the resignations yesterday and today of Commissioner Stephenson and Assistant Commissioner Yates, in part over concerns about the lack of rigour in the inquiries, I find the evidence of DCS Williams rather interesting. It helps, I think, to make clear the dreadfully negative attitude the police had to this whole inquiry. They simply wished it would go away.

As always my notes of the evidence are taken from the excellent Sheridan Trial Blog, put together by James Doleman.

Of course when DCS Williams gave evidence, Andy Coulson was still Director of Communications for the Prime Minister, Stephenson and Yates were still in place, Brooks and Hinton still worked for Rupert Murdoch, and the News of the World was the top-selling newspaper in Britain. How things change!

DCS Williams gave evidence about the search of Glenn Mulcaire’s property and the information discovered about his methodology.

He was asked if, during the search, it was true that  “3000 telephone numbers, 30 audio tapes and 100 PIN codes” had been unearthed.

DCS Williams said this was “not accurate”. Mr Sheridan referred to a parliamentary inquiry having been told there were “2978” numbers recovered, and he had “rounded that up to 3000”. DCS Williams replied, “If that is what the MPs were given it will be correct” and added that he believed the figure for PIN codes was 91.

It is, as an aside, interesting that the first reply was that the figures were not accurate, when, in fact, the correct details were 2,978 not 3,000 phone numbers, and 91 rather than 100 PIN codes.

Whilst I have posted before that Mr Sheridan’s lack of a full legal training and experience has meant that prosecutions for perjury of certain of the witnesses in his case is less likely as his questions were often not sufficiently precise, he deserves credit here for getting DCS Williams to agree that the figures given, whilst not precise, were pretty close. I do not intend to suggest that it was DCS Williams’ intention to downgrade the effect of the numbers put to him – but that, if he had not been pursued further, would probably have been the effect.

DCS Williams then told the court how Mr Mulcaire carried out the hacking. He would obtain the “unique number” of the mailbox belonging to their target and “dial it direct”. Depending on the “level of security” it would sometimes be necessary to obtain a PIN number.

In all the ongoing discussions regarding the “hacking” there has been little clear reporting of precisely what was done by Mr Mulcaire and the other investigators used by the press.

Some writers have even said that it does not amount to hacking where simply someone accesses a phone’s messages because the default PIN code has not been changed.

This evidence is an indication, to my eyes, that there was more to it than a simple reliance on phone users not changing their PIN codes.

Anyone who saw Chris Bryant MP being “interviewed” by Kay Burley some months ago on Sky News would be well aware that there was more to the process than simply relying on default PIN codes.

We next come to the nub of the issue, and that which, effectively, has lead to the end of the police careers of Messrs Stephenson and Yates.

Mr Sheridan asked how many people had been affected. DCS Williams stated that they had only evidence that reached the level of proof for “one victim” whom he identified as James Pinkerton, a “private secretary in the Royal Household.”

DCS Williams could not tell the court how many phones had been hacked or how many voicemails accessed.

We now know that there are around 4,000 possible victims of Glenn Mulcaire’s phone hacking spree (at least). This is based upon the information taken from Mr Mulcaire’s home, and which, by the time of the Sheridan trial, had been in the possession of the Metropolitan Police for over four years. Quite how DCS Williams was able to say that there was one victim, Mr Pinkerton, seems remarkable.

However, standing what Mr Yates said to the Home Affairs Select Committee last week, namely that the police were bound by a very strict definition of the offence given to them by the Crown Prosecution Service, it is easier to see how the effects were so minimised, even if the interpretation seems ridiculously narrow.

The interpretation given to Mr Yates was that an offence could only be proved to have been committed where it could be proved, beyond reasonable doubt, that a message on a mobile phone had been accessed by a third party before the intended recipient had heard it. On the guidance Mr Yates stated he had been given, it was necessary to prove that messages were hacked before the recipient got to them. Understandably that would be something very difficult to prove.

Leaving aside for now my view that that is a nonsensical definition of the crime, it at least helps us to understand why the Met Police seemed to underplay the numbers so much.

Mr Sheridan then asked the witness if the police had discovered the names that related to the phone numbers they had found. DCS Williams turned to the judge, Lord Bracadale, and said “M’lord. I have given answers, I don’t see how this is relevant.” Lord Bracadale directed the witness to answer.

Why would the officer be reluctant to answer that question? Was it a fear that a long police operation might seem to have been ridiculous if there had been so many numbers and only a few names found? Perhaps one of the House of Commons Select Committees looking into this matter, or Lord Justice Levenson’s inquiry might want to ask DCS Williams.

DCS Williams told the court that “the mere presence of a name and address does not mean anything unlawful has gone on.” The witness went on to state that “you would expect” that people who worked in the media would have possession of this sort of information and he “could not assume the purpose it’s held for is interception.” DCS Williams added that this had also been the view of the Crown Prosecution Service when they had reviewed the case last year (2009).

So there we have it in a nutshell. The implication I take from DCS Williams’ evidence is that the police were looking for reasons not to have to enquire into matters. The assumption seemed to be that unless the evidence of “hacking” struck them over the head, they should not really go looking for it.

Many in legal practice have had clients come in after approaching the police about what they, the victims, have perceived to be criminal activity, only to be met with the response at the Police Station desk of “That will be a civil matter, Sir.”

That was generally seen as a euphemism for “I am too busy or cannot be bothered dealing with that matter. Take it to a solicitor and don’t bother me, Sir.”

Here, on an industrial scale, to coin a phrase, the police were attempting to say “It’s a civil matter, Sir” as exemplified by Assistant Commissioner Yates’ review following further allegations by the Guardian where he reconsidered the whole matter of the 11,000 pages of evidence in an eight hour period before coming to the view that there was nothing new to look at or to justify the taking of further action at that time.

This is exemplified by the way that, originally, many of the celebrities and politicians complaining about hacking were told they had not been hacked, yet are now being made aware that they might have been.

Whether this “blind eye” approach was anything more sinister than simple incompetence will, hopefully, be addressed by one of the myriad of inquiries which seem to sprouting daily in connection with these matters.

What seems clear is that the police wanted little or nothing to do with this investigation – it was downplayed as much as possible – the bare minimum action was taken, and the whole sorry mess can be summed up by the picture of Mr Mulcaire’s 11,000 pages of notes lying in plastic bags in a Scotland Yard store room for four years, uncatalogued and ignored.

 

News of the World Hackgate and the Police Investigation – Part 1

 

As the perfect storm of publicity finally hits home at News International, and in advance of the Parliamentary debate secured by Chris Bryant today, it is worth looking at the role of the police in the progress, or otherwise, of the investigation.

DCS Phil Williams of the Metropolitan Police was the Senior Officer in Operation Caryatid, the investigation which led to the arrest and imprisonment of Glenn Mulcaire, the investigator working for the News of the World (NotW), and Clive Goodman, the Royal editor. He gave evidence at the trial of Tommy Sheridan at the High Court in Glasgow in December 2010.

Thanks to the excellent Sheridan Trial Blog (located at http://sheridantrial.blogspot.com and for which Mr James Doleman deserves a million thanks) we can see details of DCS Williams’ evidence before Lord Bracadale.

The relevant links are http://sheridantrial.blogspot.com/2010/12/detective-chief-inspector-phil-williams.html and http://sheridantrial.blogspot.com/2010/12/detective-chief-superintendent-phil.html.

Both are worth a read in full, as is the whole site.

Some points are worth focussing on in detail in light of recent events, and the criticism of the police inquiry. In particular, there is evidence of the lengths to which the Metropolitan Police went to investigate the case as it related to the News of the World (the answer – not far!) and the view by the Police of the evidence that was uncovered.

DCS Williams was called by Mr Sheridan as a witness. Interestingly, at a number of points in his examination, DCS Williams objected to questions from Mr Sheridan himself! In each case he was directed to answer. It is clear that the officer was less than comfortable being quizzed about the investigation in this way. He told the judge that he did not see how the questions were relevant. At one point he complained that he had not been told of the questions in advance and had thought he had only been due to testify on “the provenance of the documents we supplied.” He stated that he was “not properly aware of the questions to give accurate answers.” DCS Williams also suggested that, as there was an ongoing judicial review into the Metropolitan Police’s handling of the investigation, that his answers might prejudice that. Lord Bracadale directed him to answer. The High Court of Justiciary was not going to let the witness of the hook like that.

Police Inquiry into The News of the World

DCS Williams explained that the inquiry he headed had been into Messrs Mulcaire and Goodman. When asked if it had spread wider he said, “Not that I’m aware of.”

Mr Sheridan later asked DCS Williams if during his inquiries he had “spoken to anyone else at the News of the World”. In light of present developments what seemed a bizarre answer then becomes even more ridiculous.

 

DCS Williams replied he had “not prior to the arrests” and afterwards he had worked “through their solicitors”.

 

Mr Sheridan asked, “You arrest the Royal Editor of the News of the World, arrest Glen Mulcaire and never speak to anyone else?” DCS Williams responded that it was all done via solicitors and he had a “legal process to follow”.

 

DCS Williams confirmed that Mr Mulcaire’s contract with NotW, showing a payment of £105,000 had been recovered by the police. It was signed by Greg Miskiw, a NotW executive. Mr Sheridan asked DCS Williams if Mr Miskiw had been interviewed. He had not. Mr Sheridan (and the tone of bafflement comes clearly through the question) asked, “You arrested Glenn Mulcaire for a criminal act and the person who signed the contract you don’t interview?” DCS Williams replied “We did not.”

 

Mr Sheridan asked the witness if, after they had arrested Clive Goodman, the police had asked him to whom he was responsible. DCS Williams replied that Mr Goodman had “refused to answer any questions.”

 

It causes some concern that the Metropolitan Police were not aware that a newspaper editor would be responsible for his journalists, as Mr Sheridan indeed followed through on by suggesting that as the NotW was a newspaper, the editor would be in charge.

 

Mr Sheridan asked if the police had interviewed the then editor, Andy Coulson. DCS Williams replied that the inquiry had not interviewed Mr Coulson.

 

Mr Sheridan then asked DCS Williams who else in the NotW he had spoken to about their relationship with Glenn Mulcaire. DCS Williams told the court he had taken “lengthy legal advice” and had made inquiries to the News of the World for information but was told it could not be provided as “they did not have it.” Mr Sheridan asked why DCS Williams had not obtained a “court order” to get information. DCS Williams replied that he had to go through a “process” and as the NotW had cooperated he was “not entitled to get a court order.”

 

Mr Sheridan asked the witness if the solicitors for the NotW had been cooperative, DCS Williams replied he had “no reason to think otherwise”.

 

Mr Sheridan referred to the House of Commons Select Committee Report into the “phone hacking” issue and specifically the evidence given to that committee that the NotW’s solicitors had “been robust” about giving out information and that the police inquiry had “been left in isolation, literally ,with not enough evidence to pursue” Asked by Mr Sheridan if this appeared to show that the NotW’s lawyers had not been cooperating DCS Williams replied that he had asked questions and been told that no such documents existed. The witness added that he had “no reason to doubt the solicitors” and had been advised by a Queens Counsel and the Crown Prosecution Service and had then used the process they had advised.

 

Mr Sheridan asked about notebooks found in Mr Mulcaire’s home by the police which had details of Mr Sheridan’s name, address, mobile telephone number and PIN codes. Mr Sheridan asked DCS Williams about a name, written in the corner and asked if this could be “Greg.” DCS Williams agreed that it could. Mr Sheridan asked if the police had investigated the possibility that this referred to Greg Miskiw. The witness said he had not and again insisted he had gone as far in “pursuing” the News of the World as the law allowed.

 

DCS Williams told the court that the investigation had found “no evidence of a conspiracy at the News of the World.” Mr Sheridan then put it to the witness that he had hardly, “pursued the News of the World” as the police had “not even interviewed Greg Miskiw.”

 

DCS Williams answered Mr Sheridan by stating that it was his “belief that I would have no legal basis to arrest or interview” Mr Miskiw. In answer to the only question in cross examination by the prosecution, DCS Williams stated that he had no relationship with the News of the World and had “pushed the law as far as I could go.”

What was laid out here by a senior Met Police officer is troubling, to say the least. I make no accusation against DCS Williams, who I am sure is a fine Police Officer with a long and distinguished career. However, to the outside observer, there are clearly matters which require clarification.

 

Why did the police not interview anyone at the NotW?

 

Why were the police unaware that the editor might be responsible for his staff without Mr Goodman telling them that?

 

Did the police ask to interview people at the NotW via the solicitors and if so, were they rebuffed?

 

If so, what grounds were there for refusing to be interviewed? Presumably at this stage these witnesses at the NotW would have been viewed not as suspects?

 

What did the Met Police do when told that no documents existed? I am sure there are many people who would like to tell the police that there is no documentation regarding what the police want to know about. That’s why there are rules and procedures in place to allow the police to look for such documents. I can’t imagine it’s standard procedure simply to accept the word of the witness that there are no documents.

 

Why did the police not interview the person “employing” Mr Mulcaire and paying him £105,000 per annum?

 

Was it the case that DCS Williams found no evidence of a conspiracy at the NotW simply because no effort as made to look for one?

 

Obviously the judicial review proceedings have laid bare many of the flaws in the Met’s handling of this matter, but even as recently as December 2010 the police seemed to be of the view that their inquiry had been “robust” and that they had “pushed the law as far as (they) could go.”

 

Hopefully the Parliamentary Debate will allow these matters top be aired, and at some point soon answers to be given.