There have been numerous developments in the telephone hacking saga which now appear to extend beyond the activities of Glenn Mulcaire. Most of the coverage has, once again, come  from the Guardian and Independent.

Shadow Justice Minister Chris Bryant spoke in Parliament on Thursday 10th March 2011 in an adjournment debate about telephone hacking. His speech was televised, and an official transcript is now available.

Yates Letter to the Guardian

Acting Deputy Commissioner of the Metropolitan Police, John Yates yesterday wrote to the Guardian to refute allegations made by Chris Bryant that he misled the Home Affairs Select Committee over phone hacking. He said

“This is a very serious allegation and one I entirely refute. You repeat Mr Bryant’s assertion that I “misled the committee” (the home affairs select committee) by referring to “a narrow interpretation of the Regulation of Investigatory Powers Act, which meant a crime was only committed if a voicemail is intercepted by a third party before it has been listened to”.

He relies on a letter given by the DPP to the Culture Media and Sport Select Committee in 2009. Yates explained yesterday:

“In his letter of 30 July 2009 to the chair of the culture and media select committee, the director of public prosecutions clearly stated 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.” I am not sure how much more unequivocal legal advice can be.

It is right to state that some 18 months later, as part of an examination of material in the New York Times, the CPS signalled an intention hereon to take a broader view of the relevant legislation. This was not the position when I gave my evidence to the select committee.

You also repeat Mr Bryant’s claim that the narrow interpretation referred to above “was the very reason and the only reason why the Metropolitan police refused point blank to reopen the case until January this year”. There are any number of reasons why police can choose to reopen, continue or close investigations. In this case, the facts were that in July 2009 there was an absence of any new evidence, a factor endorsed at the time by the DPP. I have always said that if new evidence emerged then we would consider reopening the case. In January of this year, News International provided new material which is now being examined as part of a new investigation.”

Mr Yates gave evidence about phone hacking affair to the Culture Media and Sport Select Committee in September 2009, to the Home Affairs Select Committee in September 2010. which was covered in a post by Henry Fox here,  and  most recently to the Metropolitan Police Authority in January 2011, which was the subject of  a post here.  An uncorrected transcript Mr Yates’s evidence before the Home Affairs Select Committee is available here.

Previous DPP statements about Hacking

The DPP, Keir Starmer QC,  has issued a number of statements  about the hacking affair, to the Culture Media and Sport Select Committee. In one of his statements in 2009 he said:

Goodman and Mulcaire pleaded guilty to conspiracy to intercept communications, contrary to section 1 (1) of the Criminal Law Act 1977, and Mulcaire alone pleaded guilty to five substantive offences of unlawful interception of communications, contrary to section 1 (1) of the Regulation of Investigatory Powers Act 2000. 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.

He later explained this in supplementary evidence in 2009:

“There was no written legal opinion relating to the interpretation of section 1 of the Regulation of Investigatory Powers Act 2000 (RIPA). Counsel’s advice on the ambit of section 1 of RIPA was given to the CPS orally in conference. Advices given to the CPS by Counsel are not usually disclosed. Having said that, it may be helpful for you to know that the advice was based on: section 1(1) of RIPA, which requires the communication to be intercepted “in the course of its transmission”; section 2(7) of the same Act, an interpretive provision, which gives an extended meaning to the times when a communication is to be taken as being in transmission; and the observations of Lord Woolf CJ in R (on the application of NTL) v Ipswich Crown Court [2002] EWHC 1585 (Admin); [2002] 3 WLR 1173; [2002] QB 131, at paragraphs 18-19, in relation to the effect of section 2(7): “Subsection (7) has the effect of extending the time of communication until the intended recipient has collected it”. The CPS view was that the observations of Lord Woolf were correct, and accorded with the rationale of the prohibition in section 1 (1). Moreover, it was also our view that in this case there was nothing to be gained from seeking to contend for a wider interpretation of section 2 (7) than that contemplated by Lord Woolf.

Subsequently the DPP explained and clarified in evidence to the Home Affairs Select Committee that there were two possible interpretations of RIPA, a narrow one requiring proof that that the victim had not listened to the message before it was listened to by the hacker and a wider interpretation which did not require such proof.

“The prosecution of Clive Goodman and Glen Mulcaire Both Clive Goodman and Glen Mulcaire pleaded guilty before the Central Criminal Court on 29 November 2006 to one count of conspiracy  to intercept communications in respect of voicemail messages left for members of the Royal Household. Mulcaire alone pleaded guilty to five further substantive counts in respect of Max Clifford, Andrew Skylet, Gordon Taylor, Simon Hughes and Elle MacPherson. On 26 January 2007, Goodman was sentenced to four months’ imprisonment and Mulcaire to a total of six months’ imprisonment, with a confiscation order made against him in the sum of £12, 300.

In the course of those proceedings, no challenge was made to the prosecution case and the judge was not required to make any ruling on the legal definition of any aspect of RIPA. I was not in post as DPP at the time of the prosecution of Clive Goodman and Glen Mulcaire, and therefore have no first hand knowledge of the way in which it was prosecuted. Moreover, the CPS lawyer dealing with the case at the time has now left the CPS. However, in 2009 I discussed the case with David Perry QC, who was instructed as leading counsel at the time, and with my predecessor, Lord Macdonald of River Glaven. It is my understanding that David Perry QC gave oral advice about the interpretation of sections 1 and 2 of RIPA at the time. He advised that, for the purposes of prosecuting Clive Goodman and Glen Mulcaire, if it became an issue, the prosecution may have to consider taking a narrow view of the offences under section 1(1) of RIPA. This was a case specific decision.

However, as matters turned out, it was not necessary to resolve in the proceedings whether section 1(1) of RIPA required proof that the interceptions had taken place before the intended recipients had listened to the messages. There were two reasons for this. First, the prosecution did not in its charges or presentation of the facts attach any legal significance to the distinction between messages which had been listened to and messages which had not. Secondly, the prosecution not having made the distinction, the defence did not raise any legal arguments in respect of the issue, and pleaded guilty.

It is evident, therefore, that the prosecution’s approach to section 1(1) of RIPA had no bearing on the  charges brought against the defendants or the legal proceedings generally. Indeed, the prosecution was not even required to articulate any approach. The issue simply did not arise for determination in that case. In 2009, I gave written evidence to the Culture, Media and Sport Committee. In that evidence I set out the approach that had been taken to section 1(1) of RIPA in the prosecution of Clive Goodman and Glen Mulcaire, namely 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. I also set out the reasons why David Perry QC had approached the case on that basis at the time.”

Mark Lewis Libel Action Against the Police and the PCC.

After two days of hearing, Mr Justice Tugendhat reserved judgment in the libel action brought by solicitor Mark Lewis’ libel action against the Metropolitan Police in respect of statements made to the PCC about Mr Mr Lewis’ evidence to the Culture Media and Sport Select Committee. These proceedings were originally also brought against the PCC and Baroness Buscombe, in respect of statements made by her on behalf of the PCC, but it has now emerged that this part of the claim was settled on payment of £20,000 damages, costs and a statement in open court.

Jacob Dean counsel for the police sought to strike out the proceedings as an abuse of process under the Jameel jurisdiction, and that the allegations complained of are not defamatory and or a subject to qualified privilege.  Desmond Browne QC representing Mark Lewis submitted that the allegations complained of were plainly defamatory and serious allegations and that Police as a public authority could not rely upon qualified privilege following recent authority (see Clift v Slough BC [2010] EWCA Civ 1484).  Mr Browne also submitted that the case plainly does not fall within the Jameel jurisdiction.

We have been provided with copies of the skeleton argument of the Commissioner of Police and of Mr Lewis. It appears that the abuse argument has been adjourned pending the decision on meaning and qualified privilege.  The judgment of Mr Justice Tugendhat is expected shortly.