In March 2003, investigators from the Information Commissioner’s Office (ICO), raided the offices of a private detective, Steve Whittamore. As Tom Watson and Martin Hickman put it: “They were amazed at what they discovered: Britain’s best-selling newspapers and magazines were driving a thriving black market in illegal data, requesting (and receiving) ex-directory numbers, car registration numbers, health records and criminal records. The targets ranged from glamorous actresses such as Elizabeth Hurley to the families of victims of newsworthy crimes, such as the parents of Holly Wells, a child murdered by the paedophile Ian Huntley at Soham, Cambridgeshire, in 2002. (28-9).
Or as Lord Justice Leveson states in his report into the culture, practices and ethics of the press: ‘It appeared that the ICO had come upon an organised and systematic disregard for the data protection regime of a scale, duration and seriousness going beyond poor practice, beyond breach of the rights and principles of the regime, and into the realms of criminality in its own right’ (2012: 1004).
Whittamore’s sources included a civilian at Tooting police station who provided information from the Police National Computer (PNC), staff at the Driver Vehicle and Licensing Agency (DVLA), and a Hell’s Angel who blagged ex-directory and Friends and Family numbers from British Telecom. His customers included most of the British national press, and the raid netted the names of 305 journalists who had bought information from Whittamore, who had kept meticulous records of all his dealings.
This raid, which was part of an operation named Motorman, set off a chain of events which has yet to reach a conclusion, and which featured prominently in the Leveson Inquiry into the culture, practices and ethics of the press, which was established in July 2011 in the wake of the revelations about phone-hacking at the News of the World. The narrative which follows is complex one, but it is also extremely important, for a number of reasons. In particular it reveals how significant sections of the press simply ignore stories which put newspapers in a negative light, and, when they do report them, do so in a distorted and self-interested manner. Second, it clearly demonstrates the immense power which the press wields over politicians, particularly when it comes to lobbying against measures which affect its commercial interests. Third, it illustrates the fraudulence, of the Press Complaints Commission as a system of so-called ‘self-regulation’. And finally, it makes it abundantly obvious that in any matter involving a conflict between the public interest and its own self-interest, the bulk of the press will always, unhesitatingly, put the latter first.
‘A barrel of monkeys’
Whittamore’s activity breached Section 55 (1) of the Data Protection Act 1998 (DPA) which states that: ‘A person must not knowingly or recklessly, without the consent of the data controller (a) obtain or disclose personal data or the information contained in personal data, or (b) procure the disclosure to another person of the information contained in personal data’. (A data controller is simply the organisation which holds the data). Fines for breaching this section are technically unlimited but generally not above £5000, since the cases have been dealt with in magistrates courts, which can impose only limited fines and must fix the level of fines according to people’s ability to pay. But Section 55 (2) contains two public interest defences in that penalties for breaching the Act do not apply to someone who shows that that ‘the obtaining, disclosing or procuring was necessary for the purpose of preventing or detecting crime’, or to someone who shows that ‘in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest’, defences which are clearly applicable to serious forms of journalism.
Charges were brought against Whittamore and four associates under Section 55 of the DPA. But the ICO clearly felt that to pursue the journalists involved was beyond its limited resources, as the newspapers would have hired expensive legal teams and fought it all the way to Strasbourg, if necessary. At the Leveson Inquiry on 9 December 2011 [pdf], Richard Thomas, the Information Commissioner at the time of Motorman, noted that the police had already interviewed a number of reporters about Whittamore (in relation to the Operation Glade case mentioned below) and found them to be ‘tricky, well-armed and well briefed – effectively a “barrel of monkeys”’. On the basis of these interviews, the ICO was particularly concerned that journalists would again argue either that they did not know that the information which they were requesting from Whittamore could be obtained only by illegal means, or that they might claim that they had requested it in good faith for stories which they believed were genuinely in the public interest.
However, Alec Owens, the ICO’s senior investigating officer at the time of Motorman and a former detective inspector, told the Inquiry on 30 November 2011 [pdf] that, in his view, the ICO was simply frightened of investigating journalists. In his written evidence, he recounts a meeting with Thomas and Richard Aldhouse, the ICO Deputy Commissioner and Head of Operations, at which Aldhouse allegedly had said: ‘We can’t take the press on, they are too big for us’ and Richard Thomas appeared to be ‘somewhat bemused’ by what Owens was recommending. In his view, ‘the decision not to pursue any journalist was based solely on fear – fear of the power, wealth and influence of the Press and the fear of the backlash that could follow if the press turned against ICO’.
In the event, Thomas decided that he would attempt to deal with the problem via the Press Complaints Commission (PCC), on the basis that the press would surely prefer to put its own house in order rather than face possible prosecution for future breaches of the DPA. However, he had not at this time experienced the particular modus operandi of the PCC.
The PCC and Catch-22
Thomas wrote to Sir Christopher Meyer [pdf], the Chairman of the PCC, on 4 November 2003 stating that:
I am considering whether to take action under the Data Protection Act against individual journalists and/or newspapers. My provisional conclusion, however, is that it would be appropriate first to give the Press Complaints Commission and its Code Committee the prior opportunity to deal with this issue in a way which would put an end to these unacceptable practices across the media as a whole … I anticipate that this would lead at least to revision of the Code.
During 2003 and 2004 Thomas had several meetings with Meyer, and also with Paul Dacre, editor-in-chief of the Daily Mail, and Les Hinton, chair of the Editors’ Code Committee and also of News International. However, he was ‘disappointed at the apparent lack of commitment to take strong action. Even attempts to draft an advice note during 2004 ran into the sand’. Of further meetings he notes that [pdf] he was
disappointed by the response from the PCC and the Editors’ Code of Practice Committee before and during 2006. I had hoped for much stronger and louder condemnation of wholly unacceptable misconduct, an explicit change to the Code, and more focussed guidance. Instead, there seemed to be a ‘Catch-22’ view that the conduct was already illegal and that therefore not much – if anything – could be done by way of self-regulation. The exchanges did lead to guidance (with which the ICO assisted) on data protection law at large and some discussion about possible changes to the Code, but this increasingly seemed directed as much at heading off tougher sentence.
In order to understand why the PCC was so unhelpful we must jump forward to the written evidence given in 2007 by the Editor’s Code Committee to the Department of Culture, Media and Sport (DCMS) Select Committee inquiry into self-regulation of the press. This was particularly keen to stress the difference between the Editors’ Code and the law:
The Code of Practice does not set out to replace or replicate criminal or civil law. That is not its role, nor should it be. The Code will often ask more of journalists than the law demands, but never less. However, their cultures are distinct and their roles should not be blurred. The self-regulatory system is a voluntary regime, which—while conducting itself according to sound principles of natural justice—is by necessity, as well as choice, essentially non-legalistic in approach … The PCC relies on industry adherence to voluntary obligations of co-operation rather than on legal instruments of coercion (Culture, Media and Sport Committee 2007: Ev 25).
The Code Committee was also at pains to point out that ‘adherence to the criminal law is both implicit and explicit within the system’ (ibid.), and that the Code and the law are complementary:
The systems work while the two cultures remain distinct. Problems arise if they become enmeshed. It is sometimes suggested that the Code would be strengthened if it were amended to reflect the law. That would be dangerous because the voluntary ethos would be threatened and its benefits lost. If the language of the law were incorporated into it, a breach of the Code would automatically be a breach of the law. Journalists committed to co-operating with the voluntary system would be put at risk of subsequent prosecution in the criminal court, a form of double jeopardy. The dangers of self-incrimination would often be such that on strong legal advice they would not be likely to co-operate. In the face of such advice, the PCC would usually have to stand back The Code and self-regulatory system are complementary to the law, creating an ethical penumbra around it. But they are not agents of the law. They perform different and separate roles. It is vital to a free press that the distinction is maintained. (Ibid.: Ev 26)
This is why both the PCC and the Editors’ Code Committee resisted so strongly the Information Commissioner’s desire to see the Code amended to bring it fully in line with the DPA. But what this circumlocution actually amounts to is a tacit admission that newspapers would simply refuse to buy into the system of ‘self-regulation’ if it possessed any meaningful powers or sanctions. Indeed, just how ineffective and essentially meaningless is such a system was all too clearly demonstrated when Robin Esser, the executive managing editor of the Mail, appeared before the Committee and excused his inaction in the face of the Motorman revelations partly on the grounds that ‘the Information Commissioner has said, that not one of them has been accused or charged or found guilty of an offence. (Ibid.: Q118-119). At which point the Committee Chairman retorted:
This is self-regulation. It is not sufficient to say that they have not been prosecuted. You are supposed to be administering a self-regulatory system … The whole purpose of self regulation is that it is supposed to sit on top of the law. It is supposed to enforce higher standards than those which are required by law. Surely it requires the editorial management team of a newspaper to enforce it? (Ibid.: Q120-1).
But answer came there none.
Of his meetings with other press representatives, Thomas remarked [pdf]:
The general line, surfacing in many conversations, was to accept that some journalists ‘did these things’, to indicate that we had uncovered details of what everyone knew was going on, to talk in terms of ‘cleaning up our act’, but to resist any increase to the section 55 penalties as inhibiting investigative journalism. Through numerous meetings, no attempt was ever made to deny the activities that we had exposed. Even if there had been ignorance in some relevant quarters before our reports were published there can have been little afterwards or by the end of our promotional activity.
In this respect, it’s interesting that when he appeared before the Leveson Inquiry on 11 January 2012 [pdf], the then editor of the Mail on Sunday, Peter Wright, stated, when pressed: ‘I suppose what we would have had to have done is hold some sort of star chamber court and call in every journalist on the paper and ask them whether they’d ever used Mr Whittamore and give us all the circumstances in which they’d done so. I’m not sure that was entirely practical’. But perhaps the real reason why this course of action, which to many would seem patently obvious and eminently desirable, was not followed is that it wasn’t entirely politic.
But to return to the main narrative. In the wake of Motorman, the Metropolitan Police had mounted Operation Glade, an investigation of data thefts from the Police National Computer and the Criminal Records Office (CRO). As a result, charges for corruption and breaching the DPA were brought against Whittamore and three others. It was decided that the Glade case should precede the Motorman case to court. In January 2004 seven journalists, who were contacted by the police through their papers’ legal departments, were interviewed under caution and with their solicitors present. Their names have been redacted from the evidence presented to Leveson, but two were freelances, and the others worked for the News of the World, the Daily Mirror, the Sunday Mirror and the Mail on Sunday. All seven were clearly fully aware of what was coming, and were very well briefed. According to Detective Chief Inspector Gilmour, the Investigating Officer in Glade [pdf]: ‘All of the journalists accepted that they had used Whittamore to obtain information but denied knowing that a corrupt police employee or unlawful methods were being used to access the information’. During the course of their interviews, the journalists repeatedly claimed that they believed that the initials CRO stood for ‘Court Record Office’, and that the information had thus been obtained legally. And although it was repeatedly put to them that the information concerned could not possibly have come from a court source, they resolutely stuck to their clearly pre-planned script and pleaded ignorance. In the circumstances, the Crown Prosecution Service decided that there was insufficient evidence to charge them, because it was unlikely to be proved that there was the requisite degree of knowledge that the information was being unlawfully obtained. The police were understandably disappointed, but were powerless to proceed further against the journalists concerned.
During the ensuing court case, it emerged that Whittamore, using his corrupt contacts, provided personal and confidential details about a series of high-profile figures, including the EastEnders actors Charlie Brooks and Jessie Wallace, Bob Crow, general secretary of the Rail Maritime and Transport Union, and Clifton Tomlinson, the son of the actor Ricky Tomlinson, to the Sunday Mirror, Mail on Sunday and News of the World. None of the journalists involved was in the dock, and, at the judge’s request the, prosecution did not name them. Two of the defendants pleaded guilty to the corruption charges, while Whittamore and one other pleaded guilty to the lesser charge of breaching the DPA . All four were given a two-year conditional discharge on 15 April 2005 at Blackfriars crown court.
The reasons for the light sentences are complex and controversial, but it appears that the judge accepted that one defendant had been given a conditional discharge at an earlier trial in respect of unrelated offences, on the grounds that he was seriously ill. In the judge’s view, he could not now be given a higher sentence for a less serious offence, and his co-defendants could not be treated less leniently either. Furthermore, the penurious personal circumstances of all the defendants (including Whittamore, in spite of the highly lucrative trade in information in which he had been involved) meant that it was unrealistic to impose fines upon them. This then had catastrophic consequences for the pending case against Whittamore and four others as a result of Motorman. Had the defendants been found guilty in this case, the judge would have had to take into account the Blackfriars sentences, and thus the Crown Prosecution Service decided that it was simply not in the public interest to continue with the prosecution.
Julian Petley is Professor of Screen Media and Journalism at Brunel University, Chair of the Campaign for Press and Broadcasting Freedom, a member of the advisory board of Index on Censorship and of the editorial board of the British Journalism Review. He has written widely on the press.