The DPP, Keir Starmer QC, has taken the highly unusual step of writing to the Guardian to clarify a point made by Assistant Commissioner John Yates in his own letter to the paper published on Saturday. This letter was set out in full in our post of yesterday. In it, Mr Yates had sought to refute the contention that his reliance on a “narrow interpretation” of the offence of interception before the Home Affairs Select Committee in 2010 was misleading. He argued that the DPP had given “unequivocal” advice to the same effect.
The DPP did not agree with this statement of his own position. His letter to the “Guardian” reads as follows:
“It is regrettable that John Yates has taken one sentence of my evidence to the culture, media and sport committee out of context (Letters, 12 March). The position is as I set out in some detail in a letter to the home affairs select committee. In that letter, dated 29 October 2010, which was also copied to the culture committee, I said I was not in post as director of public prosecution at the time of the prosecution of Clive Goodman and Glen Mulcaire, and therefore had no first-hand knowledge of the way in which it was prosecuted.
However, in 2009, I discussed the case with David Perry QC, who was instructed as leading counsel at the time. It is my understanding that Perry gave oral advice about the interpretation of sections 1 and 2 of the Regulation of Investigatory Powers Act at the time. He advised that, for the purposes of prosecuting Goodman and 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.
Second, 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.
My position is clear: a robust attitude needs to be taken to any unauthorised interception and investigations should not be inhibited by a narrow approach to the provisions in issue. The approach I have taken is therefore to advise the police and CPS prosecutors to assume that the provisions of Ripa mean that an offence may be committed if a communication is intercepted or looked into after it has been accessed by the intended recipient.
I emphasise that providing a definitive interpretation of the law is for the courts, not me”.
In order to understand the importance of these statements it is necessary to recall Mr Yates’ evidence to parliament. On 7 September 2010 he gave evidence to the Home Affairs Select Committee. This is the relevant section of evidence:
“Q5 Chairman: …. Can I move on to the points that were raised in the House yesterday concerning the 91 people on the so-called list. I don’t know whether the list has a particular name, but the 91 people whose PIN numbers were obtained by a person, the information having been given to The Guardian under the Freedom of Information Act – basically the victims of the hacking. Do you have such a list? Is there such a list? We hear a lot of rumours about names of people on this list.
Mr Yates: “Victims of hacking” is taking it a bit far because hacking is defined in a very prescriptive way by the Regulation of Investigatory Powers Act and it’s very, very prescriptive and it’s very difficult to prove. We’ve said that before and I think probably people in this room are aware of that. It is very, very difficult to prove. There are very few offences that we are able to actually prove that have been hacked. That is, intercepting the voicemail prior to the owner of that voicemail intercepting it him or herself.
Chairman: But there are 91 PIN numbers, is that right?
Mr Yates: There is a range of people and the figures vary between 91 and 120. We took steps last year, as I indicated last year, to say that even if there is the remotest possibility that someone may have been hacked, let’s look and see if there is another category. Bearing in mind that we’d already had a successful prosecution and two people have gone to jail, we wouldn’t normally do that, but because of the degree of concern I said we were to be extra cautious here and make sure we have established whether there is a possibility-and we put some criteria around that, which I won’t bore you with-they have been hacked. That is where that figure comes from. It is out of a spirit of abundance of caution to make sure that we were ensuring that those who may have been hacked were contacted by us.
Q6 Chairman: Of course. Two of those on the so-called list, if I may call it the “91 list”, were the Member of Parliament for Rhondda, Chris Bryant, who raised this matter in the House yesterday, and the president of the Liberal Democrat party. I understand that the original investigation and the prosecutions concerned the royal correspondent of the News of the World, and therefore you would no doubt have mentioned to members of the royal family that they had been hacked. But as far as I am aware neither Mr Bryant nor Mr Hughes are members of the royal family. Have you told the other people that their PIN numbers are held by yourselves? Have they been informed?
Mr Yates: Can I just take the first bit first? In terms of individuals, there is one person whose name has been in the public domain, and that is Lord Prescott. We have discussed that because he has discussed that in that way.
Chairman: Sorry, Lord Prescott is on the list?
Mr Yates: No, Lord Prescott has discussed the fact he may have been on a list. He is not on that list and he has never been hacked to my knowledge and there is no evidence that he has. I don’t think it’s helpful for me to talk in any public forum about individuals who may or may not be on that list because all we do then is get down to the process of further and further discrimination. It’s a bit like identifying an informant in a police operation-it is a guessing game. I do not want to go there.
Q7 Chairman: But what this Committee is concerned about is they are the victims of a crime. In the same way as if somebody’s bank account has been hacked into, you would write to the people or inform them that this had happened. Have you written to the people whose PIN numbers are on that list to tell them that their PIN numbers are on the list?
Mr Yates: We have taken what I consider to be all reasonable steps in conjunction with the major service providers-so the Oranges, Vodafones-to ensure where we had even the minutest possibility they may have been the subject of an attempt to hack or hacking, we have taken all reasonable steps in my view.
Q8 Chairman: But there are some senior police officers, the ex-Commissioner of Police and the former Chief Constable of Kent. The allegations are that they were also there.
Mr Yates: You’re making the assumption, if it’s not rude to say so, that they’re on any particular list.
Chairman: But you’ve informed the victims?
Mr Yates: Where we believe there is the possibility someone may have been hacked, we believe we have taken all reasonable steps with the service providers, because they have a responsibility here as well, and we think we have done all that is reasonable but we will continue to review it as we go along.
Chair: Mary Macleod.
Q9 Mary Macleod: Thank you. Mr Yates, I’m still not comfortable with what you’ve said because Mr Bryant, the MP for Rhondda, was a perfect example of someone who had said that he hadn’t been contacted. So I just want real clarification about this because you said all reasonable steps had been taken. What are “all reasonable steps”? And I want to make sure that those people who are on that list, and potentially have had a crime done against them, have been contacted. Would you tell us how many people have been contacted and have been told that there have been issues with their phones being tapped?
Mr Yates: Again, I know it sounds pedantic, but you are making an assumption a crime has been committed. We can only prove a crime against a very small number of people and that number is about 10 to 12 people. That is very few people. In terms of the numbers on this list, as I said before we’ve taken what I believe is all reasonable steps around that and it is a dangerous assumption to make that particular named individuals-I don’t want to talk about names either-are on a list. We believe we have taken all reasonable steps. I continue to review it and if I think there are things we haven’t done we ought to have done, I’ll do it.
Mary Macleod: What are these reasonable steps?
Mr Yates: Speaking to them or ensuring the phone company has spoken to them. It is those sort of steps.
Q10 Chair: But it is not lawful to obtain somebody’s PIN number without their approval; it’s a criminal offence?
Mr Yates: Leading counsel would say otherwise.
Chair: Counsel I’ve spoken to says it is.
Mr Yates: I work with a particular leading counsel, who is very eminent-I think you know who he is-who suggested that in terms of how these offences can be committed and proved, it is very narrow that we were able to prove in this case.
Chairman: We won’t trade QCs at the moment. David Winnick.
Mr Yates: Let’s not”.
The question as to the “width” of the offence under section 1(1) of the Regulation of Investigatory Powers Act is an important one. If the offence is a “narrow” one – so that it is only committed “if a voicemail is intercepted by a third party before it has been listened to” – this means that there are likely to be very few “victims” of the criminal offence. There appears to be only a limited amount of evidence as to whether “hacked” messages had actually been listened before they were accessed. On this basis, the number of “victims” may well have been the 10-12 referred to by Mr Yates.
On the other hand, if the offence is given a wide interpretation this means that the offence would be committed every time a voice mail was listened to. This, in turn, would mean that the number of victims is likely to be very much greater – in the hundreds or perhaps the thousands.
The DPP’s intervention is, therefore, extremely important. It raises the question as to why the police appear to have relied on the “narrow interpretation” of offence when considering whether to reopen their investigation. Whatever the explanation for this, it is clear that if the police and the CPS are not using the “narrow” interpretation, the scope of the new investigation will be very much wider than that which was originally carried out.