The Crown Prosecution Service (“CPS”) today announced that no further action will be taken in relation to two phone hacking investigations, Operation Weeting and Operation Golding. As a result, News Group Newspapers Limited (“NGN”) will not face prosecution on corporate charges and 10 individuals at Mirror Group will not be prosecuted.
The decision in relation to News Group corporate charges had been widely anticipated. The CPS pointed out the difficulties of proving corporate charges and said that there was insufficient evidence to provide a realistic prospect of conviction. Two possible offences were considered
- The interception of communications in the course of transmission without lawful authority contrary to section 1(1) of the Regulation of Investigatory Powers Act 2000 (“RIPA”).
- Perverting the course of justice contrary to Common Law.
As to phone hacking, it said that Andy Coulson was not a “controlling mind” at NGN as he was not a director or senior officer of the company. As a result, corporate criminal liability could not be attributed to the company. There was no evidence to suggest that any member of the board of NGN had knowledge of phone hacking when it was taking place.
As to perverting the course of justice, the CPS was satisfied that there was nothing that NGN employees could have done which would have altered the resulting prosecution. In relation to the deletion of millions of emails, the CPS said
There are legitimate reasons for companies to have an email deletion policy. In this case, there is no evidence to suggest that email deletion was undertaken in order to pervert the course of justice.
The decision in relation to the Mirror Group came as a surprise to many observers as the company had made wide ranging admissions of phone hacking in a civil trial in March 2015 (see Gulati v MGN Limited [2015] EWHC 1482 (Ch)). The judgment in that case had been redacted to remove references to wrongdoing by journalists facing prosecution but now seems likely to be released to the public in full, unredacted, form.
However, despite these admissions the CPS concluded that, in relation to the Mirror journalists, “there is insufficient evidence against any individual suspect to provide a realistic prospect of conviction for phone hacking”.
The CPS said that it was not possible to provide that “double tap” calls or calls to voicemail platforms were “definitely instances of phone hacking”. It is said that, in addition, it was “common practice at Mirror Group Newspapers for journalists to use one another’s telephones, and so it is not possible to determine which individuals were responsible for making specific calls.” Although the call data was suspicious it “could not be said with certainty that it showed instances of phone hacking by any specific individual”. Finally, it was said that the evidence of two potential witnesses who made direct allegations against specific individuals could not be relied on.
Victims of phone hacking have a right to review these decisions under the CPS “Victims’ Right to Review Scheme“. A request to review will have to be lodged within 5 working days. It is not, at present, clear whether any such request will be made although, in the Mirror cases a request for review seems likely.
If there is no request for review or a review is unsuccessful, then this will be the end of process which began in January 2011 with Operation Weeting and has resulted in 12 prosecutions. nd nine people have been convicted: (Jules Stenson, Dan Evans, James Weatherup, Andy Coulson, Greg Miskiw, Glenn Mulcaire, Ian Edmondson, Neville Thurlbeck and Graham Johnson). Three people were acquitted.
The conclusion of the criminal investigations means that the way is now clear for the Second Part of the Leveson Inquiry, the terms of reference of which are as follows
3. To inquire into the extent of unlawful or improper conduct within News International, other newspaper organisations and, as appropriate, other organisations within the media, and by those responsible for holding personal data.
4. To inquire into the way in which any relevant police force investigated allegations or evidence of unlawful conduct by persons within or connected with News International, the review by the Metropolitan Police of their initial investigation, and the conduct of the prosecuting authorities.
5. To inquire into the extent to which the police received corrupt payments or other inducements, or were otherwise complicit in such misconduct or in suppressing its proper investigation, and how this was allowed to happen.
6. To inquire into the extent of corporate governance and management failures at News International and other newspaper organisations, and the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International
7. In the light of these inquiries, to consider the implications for the relationships between newspaper organisations and the police, prosecuting authorities, and relevant regulatory bodies – and to recommend what actions, if any, should be taken.
In a press release, the campaigning group Hacked Off commented
The way is now clear for the second part of the Leveson Inquiry. This will deal with the full extent of the wrongdoing and failures of corporate governance in the press. It will also investigate police misconduct and corruption. Lord Justice Leveson was not able to investigate these important areas until all the criminal prosecutions had concluded. The next part of the Inquiry can now begin. The public has the right to know what really happened at our police forces and newspapers so that steps can be taken to make sure it never happens again.
In a piece in the Guardian Joan Smith argued that “The Phone Hacking Scandal isn’t over yet” and called for David Cameron to honour his commitment to victims and say when Part 2 the Leveson Inquiry will get under way.
The CPS decision has been the subject of widespread media comment including the following:
- Phone hacking: CPS calls end to prosecutions, BBC
- No further action on UK media phone hacking, chief prosecutor says, Guardian
- It’s over: Ten cleared over hacking at Mirror as CPS signals end to prosecutions – Press Gazette
- No charges for Piers Morgan and Rupert Murdoch as CPS ends phone hacking inquiry, Evening Standard
- News Group Newspapers will not face corporate charges over alleged phone hacking, CPS announces, The Telegraph
- Phone-hacking prosecutions to end, CPS says – FT
I find it odd that when it comes to health and safety (including corporate manslaughter) or sex/race/disability discrimination matters, employers can have vicarious liability for the activities of their employees, but clearly not when it domes to the interception of communications.