Morning Hearing on 09 December 2011

Richard Thomas gave a statement at this hearing

Hearing Transcript

(10.00 am) LORD JUSTICE LEVESON Yes, Mr Jay. MR JAY I must apologise for the delay; it is entirely my fault. The witness today is Mr Richard Thomas. LORD JUSTICE LEVESON Very good. MR RICHARD JAMES THOMAS (sworn) Questions from MR JAY MR JAY Mr Thomas, please make yourself comfortable. Your full name, please?
A. Richard James Thomas.
Q. Thank you. Mr Thomas, you provided us with six witness statements. I'm going to identify what they are in a moment, but each one is signed and has a statement of truth and it constitutes your evidence; is that correct?
A. Yes. If I could just start by apologising to the chairman and to everybody here for my non-appearance last week. My voice was non-existent last week. I appreciate it caused enormous inconvenience and I do apologise. LORD JUSTICE LEVESON No apologies are necessary, Mr Thomas. It's obviously very important that you're fit and your evidence is clearly very important. Can I say that I'm very grateful to you for the obvious care that you've taken in responding to the various requests that the Inquiry has made of you and producing these statements which form the basis of your account of these events. Thank you.
A. Thank you, sir. Mr Jay, I have submitted six witness statements to the Inquiry. The first was one I think I put forward in September, a full statement MR JAY Just pause there, Mr Thomas. I want to identify them precisely and then we'll go through them. You're right; the first one you submitted, if I may say so, extremely timeously and it's a detailed statement on 6 September of this year. It's tab 1, I think, in the main file you have there, and it has 46 exhibits; is that right?
A. That's correct.
Q. It sets out in your own words the narrative from between about 2002 to the present day, or probably more pertinently, to 2009 when you left the ICO's office; is that correct?
A. It's correct in the sense I left in 2009. My first statement concentrated primarily on events leading up to the publication of the two reports by my office and the events following that.
Q. Thank you. Your second statement is dated 16 October 2011. It has exhibits RJT47 to 50. It will be in tab 53, I believe, of the file we have prepared for you and it deals with the detail of the 13,343 requests which were made of Mr Whittamore. We'll look at that in more detail in due course. Your third statement is dated 7 November 2011. It's tab 58 in that file. It deals with the position of the journalists, without, of course, naming any of the journalists, which policy we're going to continue to adopt, Mr Thomas. Your fourth statement is 21 November, paragraph 59, and that deals with Mr Owens' evidence, which you had seen his witness statement; is that correct?
A. That's correct.
Q. And it's your tab 59. Then there's the fifth statement of 27 November, tab 59A, which deals, if I can describe it in these terms, with Associated Newspapers' evidence; is that correct?
A. That is correct.
Q. And your sixth statement as recently as 6 December, with exhibits RJT51 to 54. This deals further with the evidence of Mr Owens. Is that correct?
A. That is correct. If I could just explain that when I prepared my second, third and fourth witness statements, I had not then had the copies of the legal materials which you've received from my former office. Having received those, I prepared my sixth statement on Tuesday of this week.
Q. Thank you.
A. There's nothing inaccurate in my previous statements but my sixth statement elaborates some of the points made previously.
Q. Mr Thomas, in order to make your evidence as sort of vivid and intelligible as we can, I'm not going to cover it quite in chronological order. I'm going to do it thematically, if I may. Before we start, may I invite you to tell us a bit about your career? This is paragraphs 1 to 2 of your first witness statement. On the unique reference numbers we're using, the last five numbers are 00258. In your own words, your career, Mr Thomas, in the law.
A. Well, I'm trying to think. I was Information Commission from 2002 to 2009. Before that, I had been in various roles. I qualified as a solicitor in 1973. I trained and qualified at Freshfields. I spent three years there. I then went to the other end of the legal spectrum. I became the solicitor for the Citizens Advice Bureau on a full-time basis. In 1979, I was the legal officer and then head of public affairs for the National Consumer Council. In 1986 I was appointed as the director of consumer affairs for the Office of Fair Trading. In 1992, I joined Clifford Chance as their director of public policy, then 2002 November 2002 until June 2009 I was the Information Commissioner. Currently, I am the part-time chairman of the Administrative Justice and Tribunals Council. I do that about three days a week, and about three days a month I'm a consultant to a think tank which is called the Centre for Information Policy Leadership, based with a law firm in the United States and I'm also I'm the deputy chairman of Which? the consumer association. I'm a trustee of the Whitehall and Industry Group and I'm a member of the management board of the International Association of Privacy Professionals.
Q. Thank you very much, Mr Thomas. Paragraph 5 deals with the functions and role of the Information Commissioner. This is 00258. You cover really two different and, in one sense, antithetical functions. On the one hand, you are concerned with privacy in the context of the Data Protection Act, but on the other hand you are concerned with the dissemination of information under the Freedom of Information Act 2000. Is that correct?
A. Yes. When I started at the end of 2002, the Freedom of Information Act had been passed but had not yet come into force. It came fully into force on 1 January 2005. But the functions under both acts have certain circularities. I think they dovetail and are complementary to each other. The way that I commonly describe the various functions is that the Commissioner is required under the Acts to carry out various duties, and the language I used was that we were partly a regulator, partly an ombudsman, partly an educator and partly a policy adviser. So we had a range of functions under both Acts which were involving both regulation, dispute resolution, education of both organisations and the general public and also giving policy advice at the national and at the international levels.
Q. You confirm and this is correct that you are not a regulator of the press as such, nor do you have any powers under RIPA; is that right, Mr Thomas?
A. No powers whatsoever under RIPA. Every media organisation will be in the language of the Data Protection Act will be a data controller. There's over 300,000 data controllers, and I think it's inconceivable that any person involved in the media would not be a data controller, so they would have to notify their activities on a public register maintained by my former office.
Q. Yes. Under section 1, subsection 1 of the Data Protection Act, a data controller you'll know this off by heart but others will not necessarily is a person who, missing out irrelevant words: determines the purposes for which and the manner in which any personal data are or to be processed." So that would cover media organisations, would it not?
A. Indeed.
Q. Presumably it would cover personal data transmitted by someone like Mr Whittamore to a media organisation?
A. I think it almost certainly would. I'd need to think closely about that particular question, but one of the points I should make is that the powers of the office in relation to what I can broadly call the press were really quite severely circumscribed, particularly by section 32 of the Act, which disapplies in the effect I'm using lay language, perhaps, but disapplies many of the powers of the Commissioner where information is being processed in most cases for the purposes of journalism. That is an incredibly complicated part of the Act. We could spend a lot of time looking at that. I don't think it's particularly relevant to most of the issues which the Inquiry is examining but I do actually have a cribsheet on section 32, if that would help the Inquiry.
Q. May we attempt an overview of your powers. See how far we get with this. First of all, please, Section 55, which, sir, will be found in Mr Graham's bundle under tab 62. It's page 08053. I'll not going to spend very long on this, Mr Thomas, but just so that we see the terrain. We've seen Section 55 before with another witness. As you say in your witness statement, this is the criminal provision, of course. There are three possible actors: the person who obtains, the person who discloses and the person who procures the disclosure of information to another person; is that right in broad terms?
A. Yes. Section 55 is really an entirely self-contained part of the Act. Its origins go back to legislation 1994. There was a scandal involving Norman Lamont Lord Lamont at the time. His credit card details became available in the press and I understand there was concern at that time and that led to an amendment, I think, to the Criminal Justice Act of 1994 and that in due course was transposed into the 1998 Data Protection Act, so it's a self-contained part of the Act.
Q. Certainly. Mr Aldhouse told us about that and you're absolutely right. There's just one point, though, I need to raise with you on Section 55(1)(a). Would you agree that one can obtain personal data through the use of an agent?
A. I don't recall ever having that point discussed or analysed inside the office. Certainly my understanding of the conventional wisdom inside the office that "obtain" meant more than just receive. It meant actually seek out and obtain. "Disclose" I think is self-evident, and primarily where agents were concerned, I think we would be looking primarily in terms of section 51(b), the procuring element of Section 55.
Q. So a journalist then
A. I understand the argument. I'm simply saying that primarily when we had I think you have to also recall that the majority of the prosecutions we brought were against people who had actually sought out and obtained the information in that sense without the consent of the data controller. I understand the point you're making. I wouldn't like to make a definitive ruling here, nor am I aware of any debate in the office on that particular point.
Q. So a journalist who asked a private investigator to obtain personal data and then receives it through the agency of the private investigator, you don't think clearly falls with Section 55?
A. I'm not saying one way or the other. I'm just not aware of that one being tested in court or elsewhere. LORD JUSTICE LEVESON Normal principles of aiding and abetting would probably work, in that he is also obtaining it, but is what you're really saying that because of 55(1)(b), the procuring offence, it may not take the matter very much further?
A. Well, I have to speculate, sir, but when Parliament drafted it in this particular way, I can only speculate that they included the procuring offence within Section 55 to cover the situation of where somebody got someone else to obtain the information. But I don't know. The point has not been tested. MR JAY The other point, please, on Section 55 is Section 55(2)(d), which sets out a defence that in the particular circumstances, the obtaining, disclosing or procuring was justified as being in the public interest There are really two points a that. The first is that this is an objective test, is it not?
A. That is correct.
Q. Secondly, the public interest is not defined in the Data Protection Act; is that correct?
A. That's correct.
Q. Did you ever provide guidance as to what it might mean?
A. In 2008, when there was a great deal of controversy about the criminal justice and immigration bill, which I'm sure we'll come onto later, at that time people were saying, "We're not sure exactly what the public interest means in this situation. You are the Commissioner. Can you help us?" And we therefore drafted a draft statement setting out what we thought the public interest meant in those circumstances. I cannot recall for sure whether that was ever published. I think it was shared with some of the people we were talking to at the time and it was certainly shared with, for example, the minister of justice. But I for various reasons, I don't think it was published. I'm not even sure whether to this day it's been published. But there is one of my exhibits does actually set out the draft as it stood in early 2008.
Q. Thank you. We'll come to that exhibit, but I think you're right in saying we've seen no evidence that it was published. May I just delve into this public interest point a little bit more? Would you agree that there wouldn't be a justification in the public interest if whoever it was was merely fishing for information without having identified in his or her mind what the public interest might be before starting on the exercise?
A. I certainly agree with that as a broad proposition. One would have to look at the circumstances of every case, but the line that I took was that anybody who was intending to rely upon that defence ought to be absolutely clear as to why they were obtaining information unlawfully which would otherwise be unlawful. What would be their defence in public interest terms? And the line I took in many, many conversations was it would be important for the journalist to record what he thought the public interest was, to get advice from his legal advisers, authority from his editor or his superiors and therefore anything which was a pure fishing exercise prima facie was certainly going to look as though it would be very difficult to justify in public interest terms.
Q. Another general point. I appreciate that every case is fact-specific, but some have said, "We need to contact people in order to tell them what a story about them is going to be and that we're about to publish that story." Do you have a view as to whether obtaining information of a confidential nature for that purpose would be justified in the public interest?
A. Again, it's difficult to say without looking at the particular circumstances of each case. I do understand the need for journalists to seek to check their story with those concerned. I do understand that there is a public interest in freedom of expression which feeds into the balance, but I think it would have to be a difficult situation for someone to say that just to find out the name or the telephone number or the address of someone so they could talk to them would be a matter of public interest. I'm not ruling it out, and indeed if I can give an example which was within the Whittamore papers I won't name names but I'll just give an example. I think it was a fairly exceptional example. It was where a minister had resigned from the Labour government and his name was in the Whittamore papers. This was after my time, but I understand that he got in touch with my former office and said, "What's all this about?" The office looked at the record in more detail and it appeared in that particular situation the journalist was trying to track down the minister to get a statement from him as to why he had resigned over the weekend. Now, that might I'm not saying it was, but that might be justifiable in public interest terms. But that was exceptional. That was not the the sort of material which we saw in the Whittamore papers.
Q. That's helpful. The sanction, of course, when we're looking at this version of the Act it's set out in section 60, I think, not in Section 55, but looking at the current state of the law, there's a limited fine if it's trialled before the magistrates' court but there is an unlimited fine if it's trialled on indictment; have I got that right?
A. That is correct.
Q. Let me just touch on an ancillary power which arises in the context of this specific criminal provision. Under schedule 9 of the Act, the office has powers of entry and inspection if it has reasonable grounds for believing that an offence has been committed; is that correct?
A. That's correct.
Q. But you need a warrant from a district judge?
A. Indeed, we had to go to a judge and get a warrant before we could use those powers.
Q. If we touch on other powers which you have outside the context of criminal sanctions. These are therefore regulatory powers. Section 40 first of all, which is our 08033. There's a power to serve an enforcement notice, is that right, if you're satisfied that a data controller has contravened or is contravening any of the data protection principles?
A. Yes. This was the main formal power which the office had where we felt that there was non-compliance with the requirements of the legislation. We didn't use it that frequently, but there was a power to serve an enforcement notice on a data controller and that could be challenged, but if it was not challenged, then in due course it became a criminal matter not to obey the terms of an enforcement order. So this was the main power available to us as a regulatory body.
Q. Yes. It's the first of the powers under part 5 of the Act, the heading "Enforcement", so it's the first of your mainstream powers. Would it in principle cover media organisations who are focusing data in contravention of any of the data protection principles?
A. Yes, it would in principle, but then you have to look very closely at section 32, which disapplies most of the or many of most of the enforcement powers where one is dealing with personal data which is being processed for journalistic reasons, subject to the detail of the law.
Q. That's right. We're not going to spend a huge amount of time on section 32, owing to its complexity, but can I just alight upon it if I may. This is our page 08029. Just to see the consequences and the reach of the provision. Do you have it to hand, Mr Thomas?
A. I'm looking, if you'll excuse me, at both section 32 and my cribsheet. This is incredibly complicated legislation and I should also say that we rarely had to engage with it in detail because the issues didn't arise.
Q. Just to see the scope of the exception, under section 32(1)(a), (b) and (c) as well, probably: "Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material." So it has to be processing with a view to publication. It can't be processing for some lesser purpose; is that correct?
A. That is correct. I mean, if I can perhaps just take you through my cribsheet, because it puts it in plain language, or would you our rather go through it section by section?
Q. I don't want to spend too much time on this. It's only if you feel that by doing it in my way, as it were, we're going to arrive at a misleading position. We can see that (b) and (c) are cumulative requirements, so if you don't fall within (a), you don't get off the ground. But (b) is: "The data controller reasonably believes that having regard in particular to the special importance of the public of interest in freedom of expression, publication would be in the public interest." So we're dealing always with publication.
A. Yes.
Q. And then (c): "The data controller reasonably believes that in all the circumstances, compliance with that provision is incompatible with the special purposes." So they're quite strict requirements and they're tied in with publication. But if you do satisfy all the requirements, all of the data protection principles are disapplied apart from the seventh; is that correct?
A. And the seventh is security, keeping information secure.
Q. Secure in what sense?
A. One of the principles the seventh principle is that data controllers have to take appropriate steps to keep the information secure, stop it moving away from the data controller, and that seventh principle is not disapplied, but all the others are effectively disapplied.
Q. I'm not going to go any further into section 32
A. What I would just add to that, though: also disapplied are the subject access provisions which give individuals the right to see their own data held by a data controller. Also disapplied, the right to prevent the processing of personal data in these circumstances, also the rights in relation to automated processing and the rights on rectification, blocking, erasure and destruction. All those parts are disapplied and I suppose the central message is that, reflecting the requirements of the underlying directive, the hands the application of the Data Protection Act to organisations processing for these purposes was very limited indeed.
Q. It's probably pretty obvious what the next question is going to be but I'll ask it nonetheless. If a journalist, for example, is obtaining information, let's say, for the purposes of argument, merely to contact someone who is about to be the subject of a published story, that would not fall within section 32, would it?
A. Well, almost certainly not, unless you could connect it with the actual real prospect of a story being published.
Q. The processing has to be with a view to the publication?
A. Indeed.
Q. If you're processing with a view to contacting someone, that's outside section 32, isn't it, Mr Thomas?
A. I think that's right, yes.
Q. Okay. The other enforcement powers, under section 43 you can serve an information notice, is that right, on the data controller?
A. That's correct.
Q. That's our page 08039. You do that in order to ascertain whether the data protection principles are being applied with, don't you?
A. Yes. I mean, essentially to find out from the data controller what is going on inside your organisation. We very, very rarely had to use that power. I can't think of any occasions I was personally involved in where this power was used. The equivalent power was used much more heavily in the Freedom of Information Act, but we found in most cases just asking the data controller to co-operate with us to supply information was sufficient for our purposes. So we didn't, I think, use that at all frequently.
Q. The last two provisions perhaps one of the most important ones. Section 51, which is our page 08046, your general duties: "It shall be the duty of the Commissioner to promote the following good practice by data controllers and in particular so to perform his functions under this Act as promote the observance of the requirements of this Act by data controllers." So that, as it were, is the cornerstone of your role?
A. Indeed, that's the promotion of good practice. When I referred earlier to our role as an educator, that primarily flows from that particular subsection.
Q. Yes, that's section 51, subsection (2). This concerns dissemination.
A. That's right, and we published a lot of materials, both for data controllers and for individuals to raise awareness of the requirements of the legislation.
Q. Thank you, and the final power, which may be quite an exceptional power, is section 52. Section 52, subsection (2), section 51 subsection (1) is a mandatory duty: "The Commissioner may, from time to time, lay before each House of Parliament such other reports with respect to those functions as he sees fit." Am I right in saying that the two reports you published in 2006 were under section 52 subsection (2)?
A. Yes, both those reports were laid before Parliament using that power. It was the first time in some 20 years, I think, that the power had been used because I think the equivalent power had been in the '84 Act and my two predecessors had never seen fit or had never had reason to lay reports before Parliament. But the two reports, which we'll come onto later, were both laid under that particular be subsection. You say that's the only other part of the Act. You've skipped over section 43, which is the power to or the duty to respond to a request. Essentially that is the dispute resolution, the complaint-handling part of the office, and we had thousands of people who came to us saying, "I think that someone has breached mile rights under the Act, I want you to look at this", and we had a large team of people who were investigating, using the rather complicated but the request for assessment of a process of section 43.
Q. Yes. May I go back to paragraph 10 of your first witness statement. You tell us there that: "Section 55 enforcement was the responsibility of a small investigations team composed former police and Customs officers Well, we've heard from one of them, of course. Did you feel that the team was large enough for your purposes at all material times?
A. I think we always felt that our teams were not large enough. We felt underresourced. During my time, we changed the funding arrangements for the office. When I started, we received fees from data controllers when they notified us and all that money had to be handed across to the Treasury, and then we got a grant in aid back. I wasn't happy with that situation and I felt that the correct and better way of doing it was that we should receive the money and fund the office from the fees received, and that was changed about two years after I started. And that did enlarge the resources available to the office for data protection purposes, but it was a pretty small team which was responsible for investigations. And I think as I said in my statement, there were two main activities for that team: first of all, to chase up cases of non-notification, which is also a criminal matter if you don't notify when you're supposed to notify, then that was investigated and the team did that and also they were the team which were charged with investigating Section 55 cases.
Q. Yes, and you tell us in your fourth witness statement at paragraph 2 this is under your tab 59, our page 33459 that the formal chain of command was that Mr Owens, who I think was the senior investigations officer, reported to Ms Jean Lockett, who reported to Francis Aldhouse, who reported to you; is that correct?
A. That was the formal line of command, that's correct, but I also go on to say that the unit when I arrived was a largely self-contained unit. They were in a different building and they were almost semi detached from the rest of the organisation, and I felt over time that not only were they self-contained but to a large extent self-governing and within about a year or so of my arrival, I put changes in place to bring them much more into the structure of the organisation. That led to the creation of what became the regulatory action division, and they then formed a much coherent part of the rest of the organisation.
Q. You tell us in paragraph 11 of your first witness statement that a Section 55 offence is often at least as serious as phone hacking, owing to the nature of the information which is being obtained. It might be highly confidential information in general terms; that's right, isn't it?
A. I would say that and I'd like to, I suppose, stress that point. Obviously over the last few months I've followed the concerns about phone hacking and during my time as Commissioner, we didn't have any suggestion that there was phone hacking going on in the way it's been revealed in the last few months. But certainly we were very concerned indeed about the security of personal data held in many, many databases in the public sector, the private sector and elsewhere, and we were very aware and a range of activities about the sensitivity of very large amounts of personal data and the risks of that getting into the wrong hands. And so I would certainly express the view that information held in databases, whether it's tax affairs, whether it's financial affairs and the bank account, whether it's medical records, social security records, your shopping details held at a retailer, the records of telephone companies, the records of education records, right across the spectrum, public and private sector, we were very concerned indeed that personal data should be handled properly, and if there was unauthorised access to such data, it's a matter we took extremely seriously.
Q. Thank you, Mr Thomas. You tell us in paragraph 12 that when you started as Commissioner, you were briefed by members of the investigations team of their belief that there were extensive networks of private investigators who were, I paraphrase, breaching Section 55. You touch on that in your first report. Were there any connections with media organisations or were these briefings far more general?
A. They were general, but there was a background and I was aware and I think it's in one of the witness statements you've had from elsewhere that the office, I think back in the mid-1990s, had taken action against a private investigator who was supplying information to media sources. There had been a case I think it was in northwest London. The press release I hadn't seen until last week, but the press release was from my former office and it's in the bundle which you've received from the Press Complaints Commission, and I was aware of that as background. I was also aware and this happened in the first two or three months of my time as Commissioner that the Select Committee was holding the hearings looking into these matters, and they are documented in the first of our reports. If I can just draw attention to the what was said there, which sort of set the background. This is paragraph 4.10 of our report, "What price privacy?" and this refers to previous press reports. The Guardian report in September 2002, indicating a data black market and highlighting a private detective agency which had been found to have sold information from police sources to the News of the World, Daily Mirror and Sunday Mirror. Second, a Sunday Telegraph report in December 2002 that private detectives routinely tapped private telephone calls for the tabloid press, with some agencies deriving the bulk of their income from such work and such clients. A report in the Times of January 2003 that the Inland Revenue's human resources director admitted that there was evidence to show that some employees had sold confidential information on tax returns to outside agencies without identifying the agencies concerned. So that was background, if you like, from the time before I started. As I was starting, the select committee was looking at some of these matters, and this was, again, recorded in paragraphs 4.7 to 4.9 of our report, "What price privacy?"
Q. I'll just give the page. 00298. It's under our tab 4.
A. And if I can just yes, 4.11, we then sort of sum up what was going on there and we say: "It's hardly surprising that the Select Committee concluded that these intrusive methods of data gathering amounted to 'a depressing catalogue of deplorable practices'." And so I was aware both from my general knowledge as to what I was being told when I arrived at the office that when the team said, "We think there are networks of people out there doing this sort of thing" that was the sort of briefing which I was getting.
Q. Thank you, Mr Thomas. Paragraphs 13 and 14 of your first witness statement deal quite briefly with Operation Motorman. I'm going to chart the following course through your witness statements just to see where your evidence leads. We know from other evidence that the search which led to Operation Motorman took place to Saturday, 8 March 2003. Do you follow me?
A. Yes.
Q. I'm going to invite you now to jump through to exhibit RJT51, which is to your sixth witness statement, which is a file note, I believe, or a diary entry.
A. I have the original books here, which may be helpful to show it in context. RJT51?
Q. Yes, thank you.
A. Yes.
Q. If we can frame it chronologically, you tell us that you think this was completed on 10 March 2003, which was obviously the following Monday; is that right?
A. I can't be certain of that. It's simply a note in my personal notebook of my tasks to do, various things for my secretary with others in the office and there's a note there which I it predates the page which is dated 10 March 2003, which suggests that it either was 10 March or possibly the previous week, but I'm pretty sure it was 10 March.
Q. If Mr Owens' evidence is right and I'll come to it it must have been before your meeting with him. Can we just see what you say on RJT51? You've written: "Francis [underlined] newspapers/[is that right?] Section 55."
A. That is correct.
Q. What inference do you draw from that, trying to exclude all subsequently acquired knowledge?
A. That tells me that I needed to have a conversation with Francis Aldhouse about newspapers vis-a-vis Section 55. So something had triggered the need for me to have a conversation with him about newspapers.
Q. Yes. Do we draw the inference that you must have learnt that this raid had taken place on 8 March before you completed that note?
A. I think that's very likely.
Q. Yes?
A. I mean, it is possible that I was told the previous week that they were going to do the raid. I don't have any clear recollection at all. But it was either it was about to happen or had just happened.
Q. "Appointment of AC"? What does that mean?
A. Oh, that's appointment of assistant commissioner. We were going to be appointing a new assistant commissioner.
Q. What about the last entry there, "Risk"?
A. That was to do with the need for a new risk register for the office to improve our risk management arrangements.
Q. So it's irrelevant for our purposes?
A. Indeed.
Q. Why did you speak to Mr Aldhouse about this?
A. I have no idea or recollection. I mean, simply, you know, he was my deputy and this was something which had come to my attention, but I can't help you, I'm afraid, beyond simply noticing it was on the radar at that time.
Q. One reason might be that he was your deputy, it was a natural thing to discuss with him because after all, it was potentially an important issue?
A. Oh yes.
Q. I must ask you this general question, Mr Thomas. Presumably you have read the transcript of Mr Aldhouse's evidence?
A. Yes.
Q. Do you have any comment you would like to make about his evidence which might assist the Inquiry?
A. Well, I think it's to summarise what he was saying that he was not heavily involved in these matters. Francis Aldhouse had been the Deputy Commissioner for some 18 years when I started, and he was my deputy for about another two and a bit years until he took retirement. He had reached full retirement age. He was primarily focused on the policy aspects of data protection, both domestically and at the European level, and he didn't have very much of a hands-on operational engagement. One of the reasons I wanted to make some changes was that I felt there was a need to have a much more active style of management across the office, but I think Francis was somewhat disengaged on these matters. He wasn't excluded altogether, and there are some items of written evidence which show that he played a part in some of these matters, but it is also the case that he had had some sort of falling out with Alec Owens, some I think probably one, two years before I arrived, he had I think it was no secret across the office. He had issued a formal reprimand to Mr Owens and that had not gone down very well with Mr Owens and it was common knowledge there was not very good feeling between the two of them.
Q. There was an informal meeting, is this right, where at least you were there and Mr Owens was there and possibly others were there a few days later? Are we agreed about that?
A. Well, I can recall the meeting when Mr Owens and some of his colleagues came to me with cardboard boxes of materials, and this was clearly the stuff which had been seized. Whether that was on 10 March or whether it was some time later, I simply can't be sure, but it was pretty soon after the raid and it could even have been on 10 March.
Q. The date isn't going to matter. Mr Owens put it a few days after the raid.
A. At that time, they came to me and I think in my written statement to you, my first written statement, I said they came in with what I described as a treasure trove. I'm not sure whether that was their language or mine but it was certainly a wealth of material which they had seized.
Q. And was Mr Aldhouse there? I think your evidence is you're not sure?
A. I'm simply not sure.
Q. Did Mr Owens demonstrate the audit trail, if I can so describe it, which led from the newspapers through the journalists to Mr Whittamore, Mr Whittamore's blagger, the target of the request, the nature of the confidential information obtained and then the fact that the newspapers were then invoiced and paid for that information? Did he, in general terms, demonstrate that?
A. In general terms. I wouldn't use the language "audit trail", but in general terms the message was: there's a lot of material here which connects the various players together and I do recall I think I used it in my witness statement the phrase "spider's web". There may have even been a diagram of some sort put up to show how they all linked together. So certainly that was the general message, that there was a lot of activity which began to show how the various players were interconnected.
Q. And obviously you had a sense of the scale of the material, the use of the phrase "treasure trove", but did you also have as sense of the seriousness of all of this in terms of the nature of the confidential information which was in question?
A. Yes, very serious, but alongside many other serious matters, if I can put it that way. I was dealing with a wide range of issues. It was serious, but I didn't have the sort of I don't want to give the impression that this was earth-stopping time, the entire office was suddenly focused on what had come out of this. This was something which was interesting. It indicated that their suspicions had been vindicated and would lead to prosecutions in due course.
Q. Can I ask you, please, about your fourth witness statement, paragraph 3, which is our tab 59, page 33459. You really cover the first five lines. You say you recall congratulating Mr Owens and team for a job well done; is that right?
A. That's correct.
Q. You don't recall any course of action being formally or informally recommended by Mr Owens or anyone else, let alone being bemused?
A. That's correct. I certainly refute that. I don't think I'm a person do get bemused by anything, frankly, and I was interested in what they had found.
Q. Then you say specifically: "I do not recall any proposal, on that or any other occasion, that any journalist, nor indeed any other customers of Steve Whittamore and his associates, should be investigated." Are you saying that the matter was simply left silent?
A. Well, it was not a matter with which in any way I was engaged. I have absolutely no recollection whatsoever of discussing the investigation of journalists or instructing anyone one way or the other about the investigation of journalists. This was simply not in any way a matter with which I was involved or discussed, and I am pretty sure I would have remembered if I had been asked or in any way involved in that sort of activity.
Q. Was it your expectation then that the investigation would take its own course, would follow the evidence where it led, and if journalists needed to be investigated, they would be?
A. That's exactly right, Mr Jay. I mean, I was not involved in the detailed operational activity of that team. I had only been in the office some two or three months at that time. My understanding was that they would go ahead and do whatever needed to be done to bring the case forward.
Q. Paragraph 3 continues, towards the end: "One of my central memories of that meeting is a recognition of the challenge presented for a very small team by the sheer bulk of the evidence, without any suggestion that even more should be obtained." So there was a concern that this was a or likely to be a substantial exercise for your team; is that correct?
A. Yes. I think I was certainly given the very clear message that this was a lot of material there which would need going through in great detail, and I assumed, if that's the right word, that they would get on with the job.
Q. I should deal with the final sentence of paragraph 3: "I do not recall whether Francis Aldhouse was at that meeting, but I do not ever recall hearing the words attributed to him." So your evidence is that you certainly don't recall Mr Aldhouse saying words to the effect: "We can't take on the journalists, they're too big for us"?
A. I have no recollection at all of him or anyone else using that sort of language.
Q. But in paragraph 4 you do recall I think that should say "us": being told that the materials which had been obtained would be evaluated so that appropriate prosecutions would follow where the evidence led."
A. That's absolutely right.
Q. Then this sentence: "The targets for prosecution were seen as Steve Whittamore, his three or four private investigator associates and the corrupt officials who were supplying confidential information." That suggests that there was some sort of confine or restriction on the targets and you wouldn't look wider to the journalists, doesn't it?
A. I think you're reading too much into my language there. All I'm saying is that the team, as I understood it, had been investigating and had been prosecuting various people who were private investigators, and this was the main focus of that team's activities, and so either then or at some later stage, I can't recall but I mean, that was the central thrust. I have, on many occasions on this, both for this Inquiry and in the discussions and debates of 2005, 2006, 2007, 2008, used the language that our targets were the investigators because they were the middlemen and I used the language we are, if you like, comparing them to the drug dealers. All I'm saying is that was not to exclude anybody else, but they were our central target.
Q. Was not Mr Owens at least communicating to you his message: "Look, we have good evidence against everyone involved in this supply chain going right up to the journalists and to the newspapers; let's investigate them"?
A. Well, that was never put to me. I don't recall him or anybody else saying, "We must go and investigate the journalists." It was simply: "Here is this mass of material. Let's go and see what we can make of it."
Q. But the journalists were linked into the spider's web, as indeed were their employers, because the documentary evidence existed to tie them in, didn't it?
A. Well, that's right, and when we come on to looking at the legal papers, either now or later, I mean, we'll see that clearly my legal team, who were increasingly on the lead on this, were very much keeping alive the option of prosecuting journalists, so I don't know if now is the right time but we can go through the legal papers which show very clearly that throughout 2003, right through 2004, even early 2005, the question of what to do with the journalists was a very live question.
Q. In paragraph 6 of this witness statement at 33460 this is set out in your third statement and you're repeating it here: "I do not have any recollection or awareness whatsoever of preventing any investigating officer or anyone else from interviewing any journalist or not allowing such interviews or further investigations." Is that correct?
A. That's absolutely right and it's very important that I should refute this. I had neither the rationale nor the opportunity, and I certainly have no record, no memory whatsoever. It's not the sort of thing the Commissioner does, to say to people: "You must either investigate [so-and-so or such a class of person]", or not do so. This is an operational matter.
Q. Unless, of course, you had made some sort of policy decision at an early stage not to pursue the journalists?
A. There was no such policy decision, certainly not at the early stage. As we come on to the events of November 2003, where we had received advice from our external counsel about the cost and the resource implications of going further, that's when I went to the Press Complaints Commission. It is possible that Mr Owens has somehow confused or conflated all the dates and interpreted that as some sort of policy or some sort of instruction, but that was not the case.
Q. Can I invite you, please. to look at your second witness statement, which is under our tab 53, and move to paragraph 14 of that witness statement, which is page 07723. The first sentence touches paragraph 6.8 of the report, which I'm going to deal with in a short moment. I'm more concerned with the second sentence, where you say: "In fact, I am not aware that any consideration was actively given to prosecuting journalists by the ICO or the CPS when the initial charges were laid. This would doubtless have reflected And you set out three matters, the first of those which doesn't relate to the ICO: "The more serious matters of corruption on the part of various employees within the police, DVLA et cetera." (b): "The focus on those at the heart of the organised trade in confidential information." That's private investigators and their agents, so that is relevant to you. Then you say: "The much greater challenges in bringing a successful prosecution under Section 55(1)(b), which is the procuring offence." So aren't you saying there that certainly at the point when the initial charges were laid, you weren't aware that any consideration was actively given to prosecuting journalists?
A. The word to emphasise in that sentence was "actively". I wasn't aware that anybody was actively considering one way or the other whether to prosecute journalists. I wrote that statement on 16 October. Since then, I have seen the file from our legal department which has come to light much more recently, and that shows that in fact active consideration was being given, because at the conference with counsel in October 2003, there was discussion about this matter. The in-house lawyer, there's an attendance note from her we'll come to that later which discusses the resource implications. I'm simply saying I wasn't aware of that when I wrote this statement. That remained the case.
Q. Okay, well, we'll come to
A. Then I give my three (a), (b) and (c), they are my speculation, as it were, as to why that might have been the case.
Q. Didn't those considerations which you set out under (b) and (c) we're not concerned so much with (a) apply at all material times and colour your thinking at all material times?
A. I think I became more aware of the implications of this case towards the end of 2003, and that's when I went off to the Press Complaints Commission, but I can't really say that I was giving very active consideration to these matters, ie I don't think really until much later that I gave any sort of serious consideration to why it was that we weren't going for the journalists. I was at all times clear that, you know, the main focus of our case was to be focused on the middlemen who are organising the illegal trade. Indeed, if we come on to talk about the two reports my office published, that even then was still very much the focus of our reports.
Q. We know as a fact, don't we, that the journalists were never interviewed by your office? Are we agreed about that?
A. Yes, that's my understanding. I've discovered in the last two weeks that it appears to be the case that the Metropolitan Police did investigate four journalists. I don't know if you'd like to turn up
Q. That's correct. That's in RJT49 and that was in the context of Operation Glade.
A. No, it's the materials you've received I think last week from the my former office. If I can just turn up that, because I think it does shed some light onto this.
Q. We will come to it, but I want to be careful to differentiate between what the police were doing as part of their functions under Operation Glade and what you were doing. Your office did not
A. You are taking me beyond my personal knowledge, but I, at some point, became aware that in effect we'd handed over the conduct of the case to the Metropolitan Police because of the more serious matters of corruption inside the police service itself, inside DVLA, inside telephone companies, and for that reason, both the lead conduct of the case and the evidence had been handed over to the police and the Crown Prosecution Service.
Q. I'm going to separate out, though, what the police were doing under their general powers, enforcing the criminal law, and what you were doing in relation to data protection. The police were concerned with corruption and that was the focus of Operation Glade. You had no jurisdiction there, did you, Mr Thomas?
A. Well, not jurisdiction, but I think my understanding was that there was a feeling that we had to co-operate with those matters. They were, if you like, a much more serious matter and in effect, I think and the paperwork which I've now seen brings this out we were in sort of second place, as it were, waiting for those cases to be brought forward.
Q. Whereas it is true that you were awaiting the result of the prosecutions in Operation Glade, those matters were outside the bailiwick of the ICO; are we agreed about that?
A. Outside the direct bailiwick, yes, but related.
Q. Right.
A. I've made the point many times that where you have a Section 55 offence, there are going to be several actors.
Q. Yes.
A. And if there is corruption and dishonest behaviour which carries a stronger sentence, then it is inevitable, I think, that the case will be handed to the police and to the Crown Prosecution Service.
Q. As regards data protection and Section 55, that was solely within the jurisdiction of the ICO, wasn't it?
A. Yes. I mean, the CPS can bring a prosecution, but we very much our central responsibility.
Q. So if your office was going to bring prosecutions against journalists or their proprietors for breaches of Section 55, at the very least the journalists would have to be interviewed in order to obtain sufficient evidence; would you agree with that?
A. I'm not sure. I'm not a criminal lawyer. I never practised criminal law. I can't ever recall giving serious consideration to that point until the last three or four weeks, and I'm reading the papers, the advice from our counsel. He says somewhere there is evidence of criminal offences being committed by journalists, if not others concerned in the media. So at that point, which was October 2003, he was of the view that there was sufficient evidence for prosecutions against journalists. As I understand the criminal process, it will be customary to at least seek an interview with a journalist before bringing a prosecution, but that would have been much later, as I understand it, in the process. If there had been a decision that we were going to prosecute a journalist, then at that stage we might have sought an interview. We had no power to compel them. LORD JUSTICE LEVESON I'm not so sure about that, Mr
A. I'm out of my depth, not being a criminal lawyer, I'm afraid. LORD JUSTICE LEVESON Have you moved from March? Because I have a question about March, if I could go back to that. Is it convenient for me to? MR JAY Yes. LORD JUSTICE LEVESON But only if you've finished March. MR JAY Yes, certainly. Carry on with March and then I will LORD JUSTICE LEVESON I just want to ask one question, because I am puzzled about something, Mr Thomas. You've made it clear that you weren't really focused on whether it should be journalists or newspapers that were investigated; you just let Mr Owens get on with the job. That's, I gather, what you've been saying this morning. But the very first word that you write down about this enquiry, according to what you've told us this morning, is the word "newspapers/Section 55", and I just wonder whether that doesn't identify that you were very clearly focused on newspapers, in other words what they were doing
A. Yes. LORD JUSTICE LEVESON from that moment. And if that is right, I don't understand why that wouldn't be a matter of great interest to you from that moment on.
A. Well, you are right, sir. You know, clearly I was aware that this was a matter which was serious and I was aware that there were implications straight away of where this might lead, but I think I'm saying that throughout 2003, from March 2003 right through until November, my assumption was that we'd be prosecuting wherever the evidence led, and I think probably my assumption was that we would be prosecuting the investigators and it was quite likely that we'd also be prosecuting the journalists. But what I am saying is I personally did not give any serious consideration to that matter, and I cannot recall any conversation or discussion when that particular issue was being discussed. So I have to speculate because my memory is not good enough, but my speculation is when I was told some time in October or November that it was going to be too expensive or too difficult to pursue the journalists, that's when I went off to the Press Complaints Commission. But throughout that period from March to October, as far as I was concerned, it was being handled in what I can broadly call the normal way by those who were charged with enforcing Section 55. LORD JUSTICE LEVESON But I would have thought that if the ICO was going to have a go at newspapers or journalists, that has reputational risks of a monumental size and you would want to be kept informed. Is that not right? I mean, explain. Help me.
A. There were many, many other matters going on at that time, sir. I've tried to make a note of some of the things. I was we had the major debate about identity cards just starting. I was seeking to reorganise the office at that time. We were establishing offices in Belfast, Edinburgh and Cardiff. Major preparations for freedom of information. A big programme to simplify our approach to data protection. A brand new employment code of practice which had been heavily criticised in the press and elsewhere. We had a major problem with bogus agencies, people purporting to be our office and receiving money from other organisations. We had an IT system which was causing us trouble, which was being installed. We had a major row with the audit commission about the way they were carrying out their functions. All I'm saying, sir, is that those were just some of the things I was dealing with. Yes, you're right to say at the back of my mind was the thought that we have a big case coming on here with the media. The evidence I gave you on Tuesday of this week records Jean Lockett coming to the September meeting of the senior management group and reporting then that things were happening with Operation Motorman and publicity could be expected. But at no time throughout this situation did I think we were either going to be prosecuting journalists or not doing so. I just made the assumption is that it was going to be pursued in the normal way. MR JAY May I try and sum up the position in this way? Given two facts which we know, Mr Thomas the first fact is that the journalists were never interviewed by your office and the second fact is that such an interview would be a sineqa non to a prosecution, out of fairness to the journalists on the one hand, in order to obtain further evidence does it not follow that either there was a policy decision not to pursue that course or, alternatively, there were operational failures or decisions by the investigators not to carry out an elementary step, namely to interview?
A. I don't think it's like that. If there was a policy, it was not one which I had any hand in, one which I knew about, which I made or which I was told about
Q. That's not quite an answer to the question. Does it not follow, either one or two, and then I'll allow you to say what you wish.
A. I'm not sure even then it completely follows because perhaps I'm wrong on this, but I mean, if there could have been interviews of journalists at a closer time to the actual prosecution, then is that not a third option? I don't know.
Q. I don't follow it, Mr Thomas, at the moment. Is it not either/or? If there's a third option, formulate the third option so that I can write it down and understand it, please.
A. If a decision had been made that we were going to prosecute a particular journalist, then my understanding is that it would be necessary to interview that journalist before that prosecution were to be brought.
Q. Yes.
A. But I'm not convinced that had to happen in that period between March, when the raid had taken place, and October, when the discussion with the external lawyer took place about the prosecution of journalists. I can only rely on what I see in writing, but he says there there is evidence against journalists.
Q. Normally an interview would be carried out, particularly if sufficient evidence existed, and we know that sufficient evidence existed in documentary form.
A. Mm.
Q. So at the moment I am thrashing around mentally to see what other alternative there might be beyond a policy decision on the one hand or incompetence in your investigation officers on the other.
A. Well, if you want to put it in those terms, I have to put it to the latter, but I am absolutely you know, absolutely clear because I wouldn't have done any of the things I had done right through 2005, 2006, 2007 if I had thought at any time that I or anybody else had said: "Back off the journalists."
Q. Some of the documents you've provided recently, very recently. We're grateful for that. Can I just refer to those quickly? RJT52, please, Mr Thomas. It's your sixth witness statement. You put this forward as suggesting, I think, that the prosecution of the journalists had not been ruled out. Have I correctly understood
A. Yes, I went through all my notebooks last week or the beginning of this week for 2003, and there I found the top half of that page are my notes of the meeting which I had with the newspaper society. I see there that I talked generally about data protection issues, generally about freedom of information issues, and then about Section 55, and it's on the screen, I think. I haven't the screen's not working here, but LORD JUSTICE LEVESON Is it turned on?
A. I've got my own notebook. MR JAY It's working up there.
A. Well, I can't see it closely, but as long as you all have it. MR JAY You have the original there, so you're in a better position.
A. I have the original, yes.
Q. You say there
A. "Section 55, enforced law vigorously. Section 55, breach of confidentiality, no new laws." That was a meeting which I think was with David Newell, who I had known previously, who was the Director General of the newspaper society talking about life in general, and my note there tells me that I was recording there that we, if you like, had journalists in the frame and that as of this would have been probably the second half of June of 2003, I was conveying the message to him that journalists were in the frame.
Q. You had hundreds of journalists, probably up to 400, in your crosshairs at this point, but you weren't taking any positive steps to enforce the rigorously against them at that stage, were you?
A. As far as I was aware, my team were doing just that. The matter was, you know, with my investigations team. They were following up this mass of paperwork, and as far as I was aware I would have had you know, we had team briefings probably once a month and I would have been kept very generally in the picture that the case was proceeding.
Q. We'll come to the legal advice in a few seconds.
A. No, this is just the general investigators. The lawyers, I think, came on the scene a bit later.
Q. RJT53, while we're amongst these documents, towards the bottom of the page. We're putting this in around October, I think, 2003; is that right, Mr Thomas?
A. Yes, this would have been early October, from the screens in my notebook.
Q. You draw to our attention four lines from the bottom: "JL [this is Jean Lockett]: Motorman publicity soon."
A. Yes, this is an example, where I actually made a note that at the senior management group meeting, Jean Lockett had come along and had said something about Motorman and I had recorded it as "publicity soon". So that does suggest that the matter was still very much under active consideration, it does suggest that it was going well as far as the office was concerned, and suggests that the options of bringing successful prosecutions were still very much there.
Q. It doesn't identify against whom
A. Exactly.
Q. Can we look at some of the legal advice? I was thinking of breaking in about ten minutes, if that's convenient. We have this in a separate file. First of all, we're going to look at the attendance note, meeting with counsel 3 October 2003. It's document 48710. In our separate file, which is file 4 of 4, it's under tab 2. This is a meeting with counsel in Birmingham which you didn't attend.
A. That's right. It was attended by Karen Nolan, who was the in-house lawyer, Alec Owens and Roy Pollit, who was the other investigator.
Q. If you look at the paragraph between the two holepunches, please, we learn that the Metropolitan Police are currently looking at prosecuting Whittamore, Boyall, Maskell and King: "It appears that the charges that will follow are corruption of a public official." Do you see that?
A. Indeed.
Q. So you are quite entitled to point out therefore I'll do it for you that the police were not, at that point, considering prosecuting journalists, were they?
A. That absolutely appears to be the case.
Q. And you're entitled not only to make to point but to underline it, I think, Mr Thomas, out of fairness to you.
A. I've only seen this note in the last couple of weeks and I perhaps haven't fully digested it, but that absolutely appears to be the case, that the targets were the four people mentioned. LORD JUSTICE LEVESON Presumably you appreciated that at the time?
A. Sorry? LORD JUSTICE LEVESON When the prosecution started, there were no journalists there. Did you not think about that?
A. I wasn't involved in these meetings. LORD JUSTICE LEVESON No, no, no, not the meetings, but you were alert as to what was going on with the prosecution process?
A. Only in very general terms and I have no recollection. Perhaps we'll come on, sir, to talk about what happened in November. This is in October. But what seems to have happened in November is that almost certainly Karen Nolan came to me and said, "It's not going to be possible to prosecute the journalists." MR JAY We'll see that in a few moments.
A. We're jumping ahead a bit, perhaps.
Q. We have already looked at the document with Mr Owens, but we see it towards the bottom of 48710, the sort of evidence that at that stage existed in relation to illegal activity. Do you follow me, Mr Thomas?
A. Yes, yes.
Q. On the next page, 48711, under the heading where counsel's name is set out: "With regard to the prosecution of the press, although there is evidence to support a prosecution, a prosecution would not be considered favourable because of the financial aspect." That could be read in one of two ways. Either it could be counsel's view, or it could be counsel reiterating what his instructions were. Do you see that?
A. Well, I have read this in the former way. That was him expressing a view.
Q. But would it be counsel's business to address the financial aspects? Those are policy matters for your office, aren't they?
A. Well, I certainly had never read it in the way you're now suggesting and nor do I do so now, because as far as I'm aware, there was absolutely no such policy and I can't think why there would have been such a policy. What I think comes very clear to me, frankly, was that it was the sheer cost and logistical challenge of going against the press which meant that we should concentrate on the investigators. MR JAY You're, in effect, by that answer endorsing the policy. It was the sheer scale of
A. Oh, that came later. I mean at this point I think from this point onwards counsel was advising: it's going to be a very, very expensive and risky business for the office to go but that was what I'm trying to say and I hope I'm coming across very clearly is there was no policy from the outset that we weren't going to go against the press.
Q. Are you sure about that, Mr Thomas? Counsel obeys instructions. Counsel does not set out what policy should be. Counsel doesn't know what your resources are. Isn't he there
A. Well, he's
Q. Isn't he there merely reflecting what he's been told in his instructions?
A. Well, I don't see it that way and I don't know who could have given him that instruction. It didn't come from me. It didn't come from anything of which I had any awareness whatsoever. LORD JUSTICE LEVESON Then it might just be wrong?
A. Who might be? LORD JUSTICE LEVESON Well, it might be wrong.
A. I think, sir, the way I've read this is that he's saying, "You could go against the press, but it's going to be not favourable because of the financial aspect. It's going to, you know, cause such an impact on your resources that it would not be realistic." He could be saying that. I mean he was a counsel, I believe, who we'd used regularly. He knew what limited resources we had. So I'm only speculating now, but it seems to me he was saying, "Do you really want to go against the press when you're going to see the implications of when you're going to see the cost of doing so? Let's go for our main targets." MR JAY But if all one needed to do: "Let's cherry pick the best cases of illegality. The friends and family cases, the one or two police national computer cases. We'll interview the journalists in those cases. We might interview the editors." That is a fairly narrow exercise. You can then assess how strong the case is. After all, if the evidence is strong enough, you might even get guilty pleas. Who knows? But isn't this, on any view, jumping the gun?
A. Well, by whom?
Q. By your office, I would suggest.
A. Well, because no
Q. Who put the idea in counsel's mind.
A. I think as I read this, the thought is came from counsel. But I also turn up, a few days later, the telephone
Q. Yes, this is tab 3, 20 October 2003, page 48714. You're going to refer to item 4 at the bottom of the page, aren't you?
A. That's the one, yes, where Karen Nolan, the in-house lawyer, is discussing with Bernard Thorogood, the counsel shall I read it out? "Prosecution of the press. The scale of the case requires substantial manpower. Several cases and the cost will be excessive, both to investigate and to prosecute." So there is a conversation going on between the in-house lawyer and the external counsel which, again, explores the realistic prospect of being able to go against the journalists.
Q. Your evidence is that the policy steer didn't come from you?
A. Absolutely not.
Q. Okay.
A. I'm jumping ahead again, but in November, clearly when this was brought to my attention, I was of the view: "We can't leave it there. I just have to go and do something about this." That's why I wrote to his Christopher Meyer we'll come to that letter and was very concerned that we should not let the press off the hook.
Q. Yes.
A. What I'm really saying, I suppose, is I'm being told, it appears: "We can't go against the press", and I'm responding: "We can't let the press off the hook. We need to do something about this." And then the next two or three years followed that.
Q. But there is an intervening piece of evidence, namely counsel's opinion of 22 December
A. No, that came some two, three weeks later.
Q. Yes, but let me just look at this before we look at the PCC, because it's convenient in this stream of
A. Well, I do just have to emphasise that that's 22 December and I had written to Sir Christopher Meyer in November and had had two meetings with the PCC by the time of this written advice.
Q. I promise you, Mr Thomas, we are going to look at
A. I'm sure we are, but I wanted to get absolutely clear that it's important, I think, to see this written advice in context.
Q. First of all, Mr Thomas, we can see when it was dated. Did you see the advice shortly after it was given, allowance being made for the Christmas holiday?
A. I have no recollection of seeing this advice at any time until the last couple of weeks.
Q. Paragraph 5, page 48717. I've read this out before, so no need to read it out again. Counsel is saying that there's plenty of good evidence against the journalists, isn't he?
A. Yes, indeed. I made that point.
Q. Then he says, the third line into 48718: "I understand that policy considerations [that should say] have led to their view [might be 'your view', 'the view'] that enforcement of some sort rather than prosecution is the way forward in respect of the journalists/newspapers. I understand and sympathise with that approach. This is, I believe, the first occasion upon which the scale of the problem has come to light, and it may not be unreasonable to give the Press Complaints Commission the chance to put their house in order." "Policy considerations" there lead straight back to you, don't they? LORD JUSTICE LEVESON Or your office, to be fair.
A. Thank you, chairman, because I can I say this very clearly: I take absolutely full responsibility for everything that happened on my watch. I was the Commissioner. Everything that happened, I take responsibility. But I have to distinguish a little bit between the Commissioner who is a corporation's soul in the language of the Act and the Commissioner, Richard Thomas, who is the individual. I'm trying to be as helpful as I can to this Inquiry by sharing with you my personal involvement in various matters. When you have a large organisation or large-ish organisation, a lot of things go on which you don't personally know about the detail. So when Mr Jay expresses some surprise, perhaps, that I hadn't seen this written advice, that's not a particular surprise to me because you delegate, you let people get on with their particular responsibility.
Q. That wasn't really my point. It's from where the policy considerations
A. Yes, well, "policy" is a loose word.
Q. Can I make it explicit? We know that by the time this advice was written, you had already written to Sir Christopher Meyer, you'd had a meeting with him on 27 November, so given that that was the policy steer you were taking
A. But
Q. by the objective facts demonstrates that the policy considerations referred to here were your policy considerations, weren't they?
A. I'm obviously more involved in the situation from this point onwards, but let me say, your know, there is clear evidence that there was not a policy conclusion even at that point. My letter to Sir Christopher Meyer says the possibility of prosecuting journalists is still under consideration. His letter to the Times yesterday says that I went to him and I said that prosecutions were likely. I can't recall if that's right or not, but it's clear to me that when I saw him that the possibility of prosecuting journalists was still alive, and therefore it is not the case and certainly was not anyone's policy that we were not going toking prosecute journalists. And if you look at the papers right through into 2004, that option, the possibility of prosecuting journalists, was very much kept alive.
Q. But it's not
A. So
Q. It's put on ice here, if not in permafrost, isn't it, Mr Thomas?
A. I think you're reading too much, frankly, into that phrase, "policy consideration". You're rather assuming that there's some sort of holy writ somewhere and this is the policy. That's not the way my organisation worked and certainly was not the case in this particular circumstance.
Q. This is my last question before we break. Your concern was: "Look, if we pursue powerful people, namely media groups and journalists, it's going to cost us a lot of money. It's risky. The better course is to involve the PCC, politically or more generally, rather than go under Section 55." That was your thinking, wasn't it, by this stage?
A. I want to be absolutely as helpful as I can and I have to distinguish between my memory and my speculation, and I've asked myself: what was it that made me go to the Press Complaints Commission at that particular point? And my speculation I can't recall precisely is that the lawyers had reached that particular point with the external barrister. We'd had they'd come to brief me and say, "It looks like it's going to be extremely difficult to go against the journalists. We're going to go against the investigators." I would have said something like: "We can't leave it there. We must do something." The letter which I sent to Sir Christopher Meyer was actually it was drafted for me by somebody else because I've noticed there's a reference which shows it wasn't all my own handy work. So clearly a view was taken: let's see where we get with allowing the Press Complaints Commission to put their house in order. And I think I do stand by what is said in that letter I don't have it right in front of me now, but towards the end of that letter, it says something like: "I'm of the view that to Can I just look it up? I think it's important to get those particular words. It's my exhibit RJT3, I think. LORD JUSTICE LEVESON 3?
A. Yes, my letter, sir, to Sir Christopher Meyer, 4 November. The letter had been drafted for me, but it may have had some amendment. But towards the end of that letter on the second page do you need time to LORD JUSTICE LEVESON No, I have it.
A. If you read the penultimate paragraph, sir, I mean, that, I think, puts the context clear. LORD JUSTICE LEVESON It's 00361?
A. 361, yes. Shall I read it out? "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 will put an end to these unacceptable practices across the media as a whole. This could involve, subject to suitable safeguards, providing you with some of the evidence that our investigations have revealed. Following your review of such material, I anticipate this would lead at least to a revision of the code. The approach I have in mind would be consistent with the recommendations of the Select Committee which were addressed to our respective organisations and could provide a more satisfactory outcome than legal proceedings. I believe that approach would also be consistent with your express wish to demonstrate the PCC's effectiveness." Now, that is where I stood, being pulled into this in November early November 2003. So in effect, what I'm being told is: it's going to be very, very difficult to pursue the journalists. I'm saying, "I'm not prepared to leave it there. Let's keep open the option of the journalists but let me write to the PCC. That letter, I think, fairly records the situation as it was at that time, and I would suggest that is not consistent with a what you call a grand policy that we're not going to go after the journalists. MR JAY I see that, Mr Thomas. Thank you very much. I think that might be a convenient moment. LORD JUSTICE LEVESON Very good. We'll have five minutes. (11.36 am) (A short break) (11.42 am) MR JAY Mr Thomas, certainly by the time counsel's advice was given on 22 December 2003, in line with the direction your office was going, there was no question, was there, of interviewing journalists for the purpose of any possible criminal prosecution?
A. That seems right.
Q. We learn a little bit more about your thinking from your fourth witness statement, which is under our tab 59, paragraphs 7 and 8, which is on page 33460. That's halfway through paragraph 7. Are you with me, Mr Thomas? You say: "Although I cannot recall any discussion then or later about the actual possibility of prosecuting any journalists, I think that a more general understanding developed that the office would see how the case against the investigators and public officials turned out before actively considering any further enforcement action. I was also conscious that taking action against journalists would be a major logistical, evidential and legal challenge I'll come back to that. would almost certainly be strongly resisted and would be very expensive for an offices with very limited resources." Setting aside the cost, of course, counsel was advising on 22 December 2003 that on the face of it, you had a good case, wasn't he?
A. I wrote that statement, paragraph 7, before seeing the legal papers.
Q. Fair enough.
A. But I believe the legal papers actually endorse that. When I talk about a general understanding developing, I think the papers right through 2003, 2004 bear out that approach, that clearly it was there was awareness as to what would be involved in prosecuting journalists and I'm not sure if you want to go onto that later but the paperwork from 2004, I think, is entirely consistent with what I say there.
Q. Yes.
A. I will actually go on to paragraph 8 of that statement, which
Q. The question actually was: counsel was advising that on the face of it you had a good case. That's what he said, wasn't it?
A. Yes, indeed, but, you know, you don't prosecute every case. We had a phrase in the office, you know, "you have to be selective to be effective", and no doubt, you know, having regard to the very limited resources, the advice was it's not wise to go ahead with this case when we can have the impact against the investigators and we'd hope to get a good result there and we can use this material to put a stop to these practices in the press by other means. I have to say and perhaps this is the chance to say this I think the steps we did take I think were alongside other events, were in fact effective at reducing, if not eliminating, this sort of activity, and I have to say and maybe this is with hindsight, but perhaps thank goodness we did not prosecute the journalists. The impact for the office would have been very, very demanding indeed. I don't know when this was or at what point this was, but probably around about 2007, I can recall a conversation along the lines of somebody saying, "Thank God we didn't take the journalists to court. They'd have gone all the way to Strasbourg." In other words, they would have challenged any action we would have taken, we would have gone right to Strasbourg, the Court of Human Rights, Article 10 issues coming in. We'd seen all the material being throwned at us during "What price privacy?" and the bill. When I also look at the note of counsel in 2004, where he records that the police had investigated journalists I think I ought to read out that particular paragraph because I think it shows the sort of situation we would have been up against. This is document 48761 and I would like to read this out.
Q. Yes.
A. This is a conference with counsel. On this occasion in January 2005, I was there for part of the meeting in fact, the part where this paragraph crops up. If I could read paragraph 9.
Q. Yes?
A. "BT [that's Bernard Thorogood, the outside counsel] stated that he'd asked counsel in the London case [that's the CPS prosecution, Operation Glade] how the officers in that case had approached the issue of the journalist [I think that's probably meant to be 'journalists' plural]. London counsel indicated that the journalists were interviewed and were found to be tricky, well armed and well briefed, effectively a barrel of monkeys." Now
Q. That cuts a number of ways, doesn't it, Mr Thomas?
A. It does, but that is what was being said at that time.
Q. Then in paragraph 10, Article 10 issues are addressed, aren't they?
A. Exactly that. So I am saying that increasingly and I think this came much later in time that I was of the view: thank goodness we had not prosecuted journalists because of some of the problems that we would have encountered.
Q. Even if you'd kept to the police national computer cases, the family and friends cases? Can you imagine what sort of public interest defence might have been risibly raised in that context? Family and friends?
A. Well, I have to look at it from all points of view, I suppose, but I can see that the media would not like any of their journalists being prosecuted and I suspect they would, for example, argue there's a public interest in being able to ensure freedom of expression. Now, I don't believe that, I don't accept that, but I it's one thing as to whether or not that would be successful, but one can anticipate that that sort of point would have been raised and it would have engaged the office and bogged down the office for many years. So I do take the view that going to the Press Complaints Commission should have been the right course of action. I do take the view that going to Parliament with two reports and getting the law changed was the right course of action. I think those proved to be very effective ways of bringing home to the whole of the national press the total unacceptability of this sort of activity. And I think the fact that virtually every allegation of hacking into databases by the press pre-dates 2006 and nothing has come to light in the last three or four months appear to have happened after that time. I am not saying it's been eliminated altogether this is under the surface, clearly but I am saying and my successor has said this to Parliament very recently, in October of this year that it appears that the press are now behaving themselves in this particular area. So I'm putting that forward, sir, because I think it's important to record that prosecution is not the only way to deal with a particular problem. LORD JUSTICE LEVESON That must be right. Paragraph 10, of course, reads: "RT confirmed that that was his gut instinct [namely that they would be a barrel of monkeys, presumably] and Mr Thomas confirmed that he felt that if we had seriously thought of prosecuting the media, we would face enormous difficulties."
A. That's correct, sir, and so what I'm saying is it was not considered actively one way or the other. LORD JUSTICE LEVESON Is that what it says?
A. Yes. It was not that's what I'm saying, sir. It was not a conscious decision not to prosecution journalists. If you look later in the bundle, that option is still on the table, and at one point I think the counsel say, "Let's leave that for a later stage." MR JAY But the truth, Mr Thomas, is you say in paragraph 7 of the witness statement you were just looking at that the option of pursuing journalists subsequently was only theoretical, which of course by that stage it was.
A. I'm sorry, you've lost me. Which
Q. Your fourth witness statement.
A. Oh, sorry.
Q. Tab 59.
A. Yes.
Q. Paragraph 7.
A. Yes.
Q. At the very end of that paragraph you refer to "the remaining possibility, however theoretical, of prosecuting journalists".
A. Yes.
Q. So is that was how you were looking at it.
A. Well, that's very much the case. Seeing how we got on with the main case, seeing where that led to, and then taking stock at that time. But events proved otherwise. Events turned out otherwise. In one of the papers yes, I think it's that same conference in January 2005, I raised the question: are we prejudicing ourselves by delay? And counsel advised: "No, you're not. You can come back to this at a later stage." I'm sorry, this is in 2004. This is when this is document 48740. This was a note by the new in-house laywer, Phil Taylor, on a meeting with me on 4 August and on the second page, I think this brings out why I wanted this to be a priority for him and the last paragraph reads: "RT [that's me] stated that in addition, what he wanted to be in a position to do as well as bringing proceedings would be to write to the various journalists and editors involved to highlight to them the new annex to the Press Complaints Commission code of practice, together with drawing their attention to the fact they're incredibly lucky not to have been prosecuted in this respect, but in any event, it is something that can be dealt with at a slightly later stage."
Q. But that was a threat that you were, perhaps in a slightly empty way, if I may say so, delivering to the journalists. The reality is that (a) this was never seriously considered see the note which Lord Justice Leveson has just referred you to and (b) at this stage, insofar as it was a possibility at all, it was an entirely theoretical possibility. Wouldn't you agree with those propositions?
A. Totally agree.
Q. You would agree?
A. It was a theoretical one, but it was not a dead possibility.
Q. It was as dead as it could possibly be, Mr Thomas
A. No, because we hadn't
Q. both in your mind and in practical terms.
A. No, we hadn't had the outcome of the case. The case didn't go to trial until 2005, so we were keeping open the possibility, but it was not a live possibility, if I can put it that way.
Q. Yes. Because in your first report, which is under our tab 4, RJT1, paragraph 6.8, page 00708 we've reached the position in chronological terms that the four prosecutions, the subject of matter of Operation Glade, had hit a rather large iceberg in the form of Blackfriars Crown Court. All four, I think, got conditional discharges.
A. (Nods head)
Q. That, of course, had certain consequences for Operation Motorman, and we can quite see why a policy decision was then taken to discontinue Operation Motorman in due course. Are you with me, Mr Thomas?
A. Yes.
Q. Then you say in 6.8: "This was a great disappointment to the ICO, especially as it seemed to underplay the seriousness of Section 55 offences. It also meant that it was not in the public interest to proceed with the ICO's own prosecutions." Well, we can agree with that proposition so far. "Nor could the Information Commissioner contemplate bringing prosecutions against the journalists or others to whom confidential information had been supplied." May I suggest to you that that is possibly slightly overstating the position, that the policy decision had already been taken, there was a theoretical consideration only of prosecuting journalists after that policy decision had been taken and therefore it might not be quite right to say that prosecutions against the journalists could be contemplated after April 2005. Would you agree?
A. Well, that may slightly overstate the case, in your language, but I do believe that it is entirely consistent with everything I've said to this Inquiry. I don't accept that there was a "policy decision". I don't accept that we abandoned the possibility of prosecuting the journalists. It was only after the outcome of the Blackfriars trial that not only did we have to abandon our own prosecution some two months later, but also that completely extinguished any possibility whatsoever of prosecuting journalists, and I think that although it might be slightly overstating it because I accept that it was not a very real possibility, nevertheless it was only at that point I'm quite clear about this only at that point, after the Blackfriars trial, was the possibility of going against journalists completely extinguished, and what we had been pursuing in the meantime was other means of trying to prevent this sort of unacceptable behaviour. And I do need to really emphasise this, Mr Jay, because you asked me at the beginning about the various functions of the office.
Q. Yes.
A. We're primarily not a prosecuting authority. That was almost on the side. One of our main functions was to promote good practice, to prevent breaches of the data protection legislation. And so increasingly, from my initial encounters with the Press Complaints Commission and right through the two or three years that followed, I was very clear in my mind that the emphasis on everything I was doing was the prevention of this sort of activity recurring any further.
Q. We'll come to the other pieces of enforcement action within your
A. This is important stuff because
Q. Of course, of course, and I'm going in time, we will deal with it fully.
A. It's important stuff also to point out the limitations of prosecutions. Not only had the case which we had brought taken a great deal of resource; it had resulted in conditional discharges, which led to a very perverse outcome in all these respects. So I think that does rather highlight that a criminal prosecution and a conviction is not necessarily by any means the full story.
Q. The evidence you gave to the Select Committee on these matters that's the Culture, Media and Sport Committee, under our tab 80. I note that my copy does not have the URN numbers, which may be my deficiency and no one else's, but we can work from the pagination at the top right-hand side of tab 80. LORD JUSTICE LEVESON Or the question numbers. MR JAY Yes, it's question 40 then. EV21.
A. Is this the Select Committee of March 2007?
Q. It is indeed.
A. Yes.
Q. Question 40 was: "I understand it's a breach of the law not just for a person who legally accesses the database. It's also a breach of the law by the person who commissioned them to do so. If there was evidence the journalists had paid these people to access databases illegally, they themselves would be breaking the law. Did you investigate that?" Then your answer is: "Yes." But did you investigate that?
A. I think the "yes" there was a digesting of the question, rather than precisely answering the particular question. I think it was just a pause answer rather than: "Yes, we did investigate journalists", and I would not want to read too much into that particular single word by itself there. But I don't think I was saying, "Yes, we investigated journalists", but yes, in a more general sense, we were looking at everything that was going on. Then I went on to describe the various issues.
Q. To be fair to you, that may well be right, because you say: "The offence is cast in terms of obtaining, disclosing and procuring." So because there was wrapped up in the question at least two propositions, you weren't necessarily addressing the final one, "did you investigate"?
A. I think you're dissecting that exchange far more closely than it bears.
Q. I'm trying to help you actually, Mr Thomas.
A. Well, I'm trying to be as open, as clear and as straightforward as I possibly can be, but I don't think I've not thought about it before. I don't think that was a "Yes, did you investigate that". In the general sense, we investigating everything but did we specifically go and interview journalists? The answer is no, but that isn't really what they were getting at.
Q. Lower down, level with the lower holepunch: "We had hard documentary evidence of what they had done That of course, the "they", the pronoun, is the investigators?
A. Yes.
Q. and indeed that led to a guilty finding. We were going to wait Did it, though?
A. I'm sorry?
Q. Did it? Your Operation Motorman was discontinued against the investigators, wasn't it?
A. No, but the guilty finding was the guilty finding against Whittamore at Blackfriars Crown Court.
Q. Yes, but not in relation to any data protection issue?
A. Yes, it was. The conviction was for Section 55 at Blackfriars Crown Court.
Q. I thought that the conviction on 19 April 2005 was for corruption?
A. No, no, no, no, no. He pleaded not guilty and it was perfectly clear now there was some sort of plea bargaining. He pleaded guilty to Section 55.
Q. I'll look at that an appropriate time. It certainly wasn't my understanding, but it may be that my understanding is incorrect. Then you carry on: "We were going to wait and see what the outcome of that case had been before taking any further action." And then, lower down the page, you describe what the nature of the information was and you say, four lines down, I would suggest correctly: "So there was what I might call hard prima facie evidence." Do you see that? LORD JUSTICE LEVESON Three lines above the bottom of the page.
A. Yes, indeed, I have it, yes. That's right. MR JAY That's probably a correct characterisation of what the evidence amounted to.
A. That's
Q. In the sense, of course
A. That's exactly as I did and do see it, hard prima facie evidence. When we come on to discuss the content of our reports, I will say that the reports contained hard prima facie evidence of offences.
Q. Yes, and then you say: "But equally, to bring a prosecution for the offence of procuring is never going to be easy. I would not disguise that from anybody. In that particular case, we were unable to proceed [I think it should say] with any further legal action." That, of course, is after the events of April 2005. The next question from the chairman: "Could I press you on that? Because you're suggesting to us that you did have evidence which might well have been of sufficient quality to enable a prosecution but you did not proceed because you were advised it might be against the public interest. Why should it be against the public interest? "Because it would be, essentially, a waste of time and effort for my organisation but also if we were to go to the courts, it would be back to the magistrates' court and bring prosecutions. We would have to decide which of the journalists to prosecute. Should we go for the whole lot or sum? And the strong advice from our counsel was that we should not and could not proceed with such prosecutions. It would be attracting severe criticism within the court system if we were to go any further." To be clear, Mr Thomas, you're looking there at the public interest decision after April 2005, not before, aren't you?
A. That what I'm talking about there is the advice we received on 27 May 2005
Q. Correct.
A. where there was a conference with counsel as documented here
Q. We can take it very shortly
A. I have a clear memory of that. That's why when I was talking to the Select Committee, that's exactly what I was referring to.
Q. Because by the time there were any conditional discharges against the four investigators in relation to Operation Glade, someone could very reasonably take the judgment there's no point pursuing the data protection matters against private investigators, given what the likely sentences were going to be. That was the gist of counsel's advice, wasn't it?
A. Well, absolutely. Exactly that.
Q. Yes.
A. And you'll see this is document 48808. That's the very full note of the conference with counsel, and the advice was that we had to drop any further cases and I was very concerned about that advice. I was questioning and challenging it. If you read the full note, you'll see see that I was very reluctant to be told that will we could not go any further with this case. I questioned and challenged it in various ways. But at the end of the day, it says on page 48813: "RT stated he felt he had to swallow hard and accept the advice he was being given by counsel in this matter." So that was the point at which we were being told that we could not pursue our prosecutions any further because the public interest so demanded. LORD JUSTICE LEVESON Did you know that the judge at Blackfriars had asked where the journalists were?
A. I only knew that about a month ago, sir, when I saw the transcript of the trial. I didn't know at the time. MR JAY We have the transcript at RJT49. This is one that, because there may be journalist names mentioned, probably is not going to be put up on any screen. So underneath our tab 56. Of course, the core participants have seen the full document. The judge did ask a question about the journalists. LORD JUSTICE LEVESON It's not actually a transcript, is it? It's a file note prepared by your office, I think.
A. That's the in-house lawyer, Phil Taylor, appears to have written this note up, yes. MR JAY He was told that a number of journalists were interviewed. This is at 07741. But that was in the context, at least at that stage, of an indictment which was concerned with a corruption conspiracy, wasn't it? Because we know the indictment was late amended, as you've reminded me. The reason
A. I'm not very familiar with what happened there.
Q. No.
A. All I know is that conspiracy charges were brought. My understanding was that they also included data protection matters.
Q. Yes.
A. That the case did not proceed vis-a-vis the conspiracy and ended up with the convictions for the data protection offences. I also understand that there was a feeling that the prosecutor had not accurately conveyed some of the material to the court vis-a-vis the journalististic aspect, and I can't turn it up straight away now, but some of the notes you've had from the ICO's legal file indicated that the barrister for the CPS had not perhaps conveyed the full picture. We'd sort of if you like, were not actively engaged or involved in that.
Q. The original conspiracy at the time out in the indictment was a conspiracy in relation to corruption matters, but what happened appears on the internal numbering of this file note, page 10, which may or may not have reached your bundle, because it only came to light, I think, on Monday. Has it been added? LORD JUSTICE LEVESON It has. MR JAY It may not had been added to everyone's, but it's clear from what's said in the middle of the page that two of the men pleaded guilty to the indictment as originally constituted, which was not for data protection, but then quite late, on 6 April 2005, the Crown amended the indictment to include two offences under the Data Protection Act. Whittamore and Boyall both pleaded guilty. So it did involve in part data protection but in the main it was outside data protection, it was police corruption. Do you follow me?
A. I do, but of course the whole case arose out of the circumstances. I mean, here we had private detectives paying money to people inside the DVLA, inside British Telecom, inside the police, to get the information. So my understanding, I think, remains the case that this was a far more serious matter than a breach of Section 55. That's why the Crown Prosecution Service took it over and prosecuted in that way.
Q. Yes, but
A. Then the prosecution appears to have gone wrong in some way. There are suggestions in the later papers that there had not been adequate disclosure by the CPS and the CPS were reluctant to let the case go all the way to full trial, and so some sort of deal seems to have been done, leading to the
Q. Do you have person knowledge of this or is this speculation?
A. No, I don't at all.
Q. Some would say, well, if you're turning a bit off-piste and making criticisms of others
A. I'm just recording what's in the paperwork.
Q. Okay. We do know that by the time you were forced with making the unpalatable decision to discontinue the Operation Motorman prosecutions, of course at that point the only parties to the relevant conspiracy were the private investigators. They were not the journalists, were they?
A. That's correct.
Q. Can I move off that topic to another topic, which is the quality of the evidence you had. It's possible that I can take this quite shortly, given your correct characterisation before the Select Committee of the evidence amounting to a hard prima facie case or hard prima facie evidence, but of course, the strength of the evidence will fluctuate a bit, depending on whether you're looking at friends and family and PNC on the one hand, and area searches on the other. Would you accept that as a general statement?
A. Yes. I think I was also talking to the Select Committee in fairly general terms.
Q. I'm not suggesting that you were doing otherwise. Can I ask you, please, to look at exhibit RJT47, which is under our tab 54, where you are giving more information. If you can just attain your bearings, Mr Thomas, in relation to evidence you gave or material you gave in answer to a Freedom of Information Act request. You cover that in your second witness statement. If you look at page 07726, which is the second page of this letter do you have that?
A. Not yet. 7726?
Q. Please.
A. Mm-hm.
Q. At the bottom of the second page, you say: "There were 13,343 transactions recorded in the source material of these, 5,025 are identified as transactions that were (of a type) actively investigated in the Motorman enquiry and are positively known to constitute a breach of the DPA." Can we be clear about that? What type of transactions are you referring to there? Or are you not able to say? By "type", I mean are you referring to ex-directory searches, aggregating those with a number of other type of transactions to arrive at 5,025? Or can you not assist us further?
A. Well, first of all, this was not my letter. This was written by this was the draft the office has not found a copy of the actual letter. This was a draft which has been found of a letter written by Philip Taylor.
Q. Yes.
A. And bear in mind, please, that he was the solicitor who was involved in all the well, the middle and late stages of the prosecution. He was the solicitor who attended the Blackfriars trial, for example, and he was dealing with counsel right through 2004 and 2005.
Q. Yes.
A. And he was heavily involved in the preparation of the two reports from my office. It was the first report which documented the nature and the extent of this illegal trade in personal confidential information, and he was the he drafted the first, if not the second and third drafts of that report, which led to the statement that there were 305 journalists implicated in the material which had been found. That led to the freedom of information request which was received probably in about September, October of 2006.
Q. It did.
A. And this is his draft reply to the FOI requester. So he's the one who made the judgment there, which fed into both our reports, that of the source material examined, some 13,000 transactions, he characterised some 5,000 5,025 as transactions of a type which were positively known to constitute a breach of the Act. Now, you might be asking me: how did he form that judgment? I can't say for sure. I have speculated in my witness statement, but I think it would be a similar sort of material as that which did lead to the convictions, and material which could not have got into the hands of anybody except by way of asking questions. Put it that way.
Q. Yes.
A. We're going to come on and talk about, for example, ex-directory numbers, but we're talking also in this situation about friends and family details, criminal record details, details of convictions and ex-directory numbers, all of which at least raise questions about how they got into the hands of the investigator.
Q. The language used here is "positively known to constitute a breach", so it's putting it quite high
A. It's putting it quite high. You asked me earlier was something slightly overstated and this might perhaps be slightly overstated. I mean, yes, he's a lawyer, but I don't think he's saying that this is absolutely guaranteed, as it were, to result in a conviction. We're not in a court of law in writing these letters, but he was of the view that this was this would have been sufficient to amount in a conviction.
Q. If you aggregate all the PNC requests and the friends and family requests amongst the 13,343, an exercise which I haven't done apart from impressionistically, you only get to a number in the hundreds. You don't get to the thousands. There are only relatively few of those. In order to get to 2,025, you are presumably including the ex-directory requests
A. I've not done the airthmetic either, Mr Jay, but my impression, from looking at these papers, is that they must have included the ex-directory material, too.
Q. If you look at the next page, 07727, where you're looking at the slightly less evidentially potent category, the 6,330, they're described as occupant searches, which represent transactions that are thought to have been information obtained from telephone service providers and are likely breaches of the DPA. However, the nature of these is not fully understand and it's for this reason that they are considered to be probable illicit transactions." It might be said by those representing the media organisations that, again, that's an overstatement, isn't it?
A. Well, I can't answers that in detail. I can only, like you, speculate. But what appears to have happened is that the investigators this was a new team of investigators, by this time, who had come on the scene to look at this material, they and the inhouse lawyers classified the material into three broad headings.
Q. Yes.
A. What appeared to be definite, what appeared to be probable and that which is outside altogether. Now, I'm not saying that every single case would have stood up in a court of law and resulted in a conviction, and therefore for both those first two classifications there may have been, to use your language, a slight overstatement. But I think for the purposes of writing our report, to draw attention to what the evidence appeared to show, to draw the attention of the media, government, Parliament, everyone else, to what was going on, I think that was sufficient.
Q. To be fair again, there's a distinction
A. Sorry, one further point. Not being said here these were offences committed by journalists. This was clearly focused primarily on offences committed by the private investigators.
Q. That was my next question
A. Sorry.
Q. which you've read my mind and answered, so I don't need to ask it.
A. If you look at the language of both reports, it is very clear on that. We are not saying and I think some of the media organisations perhaps have read too much into the report we're not saying that each and every one of these was an offence committed by a journalist. What we were saying in our report is that journalists were significant customers of information which appeared to have been obtained illegally.
Q. Is that what you were saying there in the second report? My exhibit is not marked. It's under tab 6. It may well be exhibit 2. The page I want to look at is page 00335. I think it is exhibit 2, isn't it, Mr Thomas?
A. Yes, I think so. The second of our reports?
Q. Yes.
A. Yes. Which page are you on?
Q. I'm on the internal numbering page 8.
A. Page 8.
Q. But 00335.
A. Yes.
Q. This is when you're introducing the table. You got to the 305 journalists
A. Yes.
Q. And you say, two paragraphs from the bottom: "Having considered the matter further, the Information Commission has decided that a further disclosure is in the public interest and in the context of a special report to Parliament is consistent with the discharge of his functions under the Data Protection Act 1998. The following table shows the publications identified from documentation seized during the Operation Motorman investigation, how many transactions each publication was positively identified as being involved in and how many of their journalists (or clients acting on their behalf) were using these services." So you're saying there that you're drawing a distinction. The positive identification relates to the transactions and to the private investigators, and the journalists are simply those who are using these services; is that correct?
A. Yes. That documents that large numbers of journalists were buying large amounts of information from investigators who, in our view, can only have obtained that information by breaching Section 55, some of whom had been convicted of sample cases, some year or 18 months earlier.
Q. Mm.
A. We are not saying that the journalists in every case committed an offence. We are suggesting, I think, that it is likely they may have been committing an offence but we've explored this fairly fully this morning already. There was not a trial, so we cannot say with certainty that anyone committed any offence. But we are saying that they were driving the market. We are saying they were customers for information which appeared to have been obtained illegally and for which there had been conviction.
Q. You're certainly saying in the last paragraph on this page that the only defence you can see as a possible defence is the public interest or similar issues.
A. Well
Q. Aren't you?
A. I'm not particularising that to whom might have been the defendants. Whittamore did not raise public interest defences. He pleaded guilty. If there had been any prosecutions of journalists, it's quite possible they would have raised a public interest defence. There may have been other defences. They may have said it wasn't knowing or reckless, which is part of the offence itself. So we're not saying here that the journalists were committing offences. They may have been, they may not have within. One would have to look at each particular case.
Q. Yes, but then on the table itself on the next page, you are linking various publications with number of transactions positively identified and then the number of journalists. So you are perhaps giving the impression that these newspapers have committed offences, aren't you?
A. I wouldn't go as far as that. We're moving in that direction, shall we say, but we're not categorically saying that journalists have committed offences. LORD JUSTICE LEVESON Could I just ask you about that, please? I understand the definition of the offence in Section 55(1) of the Act, but if a private detective is asked to get friends' and families' numbers which are covered by the Act, how could that not be knowingly or recklessly at the behest of the person who asked him to get that information?
A. I think that's a very good question, sir, and I'm not disagreeing with that. I think that's why I'm saying it is, to my mind, highly likely that would have been an offence, and so we are coming close to suggesting that there were offences, at least in some cases, but we were not going to be writing down here nor am I saying today that every single one of these was an offence by a journalist. It was very, very likely indeed to be an offence by the private investigator, and to my mind and I think to your mind too, from my understanding of what you were saying it looked very much though as though it would have been an offence by the journalist. But we were conscious we had not prosecuted, we had to abandon the prosecutions we had in train, we hadn't got the hard evidence that, if you like, there was a conviction, so we had to use our words quite carefully. We are suggesting Mr Jay put it to me that we were implying. We were coming close to that and I stand by that but I am not able to say categorically, because only a criminal court can say that, that they were guilty of the offence. LORD JUSTICE LEVESON I understand that.
A. And that there may have been an offence in each particular case. LORD JUSTICE LEVESON Can you think of one?
A. Not offhand, no. Well, let's take the example we're talking about, family and friends. It depends where the evidence comes from, but if it's in the hands of a journalist that he has got from Mr Whittamore a list of someone's family and friends, I find that quite outrageouses in policy terms. I find it highly, highly indicative in legal terms that that must have involved a breach of Section 55 at some stage, certainly by the investigator, almost certainly by the journalist. MR JAY But if
A. And likewise for criminal records.
Q. But everybody knows that family and friend numbers can only be obtained by getting a copy of the bill or someone at British Telecom telling you what's on the bill.
A. That is exactly what was our very, very strong hypothesis, and I think this is, you know, what so outraged me, that this was going on and led to such a light sanction when it finally got to trial, that I felt there was no option whatsoever but to bring it to much wider public attention, despite the difficulties in doing that. That led to the first report, "What price privacy?", being written. Bear in mind it's not just the press, if I may say so. That's a very important point. We were targeting the entire market and there were other customers, as the report makes very clear. I know the focus of this Inquiry is on the press, but we were not looking at it in terms of: "Let's expose what the press are up to". It's: "Let's expose this whole market", and there were a lot of people and at the end of the day, it really sort of boiled down to any citizen in this country is at risk of having highly personal information obtained by others against their will, and we sort of we published the tariff, we published the training manuals. We documented that for ?150 to ?200, virtually anybody in this court today, the owner of a car parked outside their house could be tracked down. An ex-directory phone number, it would cost between ?65 and ?75. ?750 was the cost of getting anyone's call records, ?500 the cost of getting criminal records. And I found that absolutely
Q. I was going you all this, because you're moving ahead now.
A. Well, I'm running ahead but I wanted to get this point very, very firmly.
Q. What I'd like you to do, if you look at paragraph 5.3 of your first report under tab 4. This is our exhibit RJT1, page 00296. I said in opening this case I was going to ask you questions on 5.3, and you're giving us the answers. Just so that we can tether those answers to your report and see the context are you with me, Mr Thomas?
A. No, I've lost you. Which page are you on, I'm sorry?
Q. 00296, paragraph 5.3 of your first report.
A. Sorry, I'm on the second report.
Q. These are rather strong points you make.
A. Yes.
Q. And they're probably very well substantiated. Just so that we follow the line of your evidence, you say here: "This was not just an isolated business operating occasionally outside the law, but one dedicated to its systematic and highly lucrative flouting. Nor could its customers " Well, in our context, those are the journalists; is that right?
A. Yes, although we are writing this also aware that banks, insurance companies, law firms
Q. In our context.
A. In your context, I understand, but I'm explaining the report itself. There's a market.
Q. (overspeaking): "Some of the information obtained, such as PNC checks, ex-directory telephone numbers and details of frequently dialled numbers cannot normally be obtained by such businesses by lawful means." Pausing there, possibly you've understated it, Mr Thomas. PNC and frequently dialled numbers these are the family and friends cannot be obtain by other than unlawful means. Ex-directory numbers, you may be right, cannot normally be obtained by lawful means. Would you agree with that?
A. Absolutely.
Q. "Others, such as personal addresses, can be obtained lawfully only by the old footslogging means, such as personal checks of the full electoral register. The prices charged for some pieces of information raise questions about their provenance. Either the price was too low for information obtained lawfully (as in the case of personal addresses), or it was high enough to indicate criminal activity (as in criminal records checks)." So if you give us the prices again, maybe you'll be able to illustrate that point for us, Mr Thomas.
A. I looked at that sentence a lot and I just wonder whether there's a mistake there. I think the word probably should have read "too high" in the penultimate line. I can't fully understand that sentence now. I think it reads more clearly if you read it as: "The price was too high for information obtained lawfully or it was high enough to indicate criminal activity." It was certainly not a well-crafted sentence. I recognise that.
Q. I'm not sure that's right.
A. Well, I don't know. I can't make sense of the sentence as currently drafted.
Q. I think what you're saying is that if you're only paying ?17.50 for an occupancy check, that's an extremely low price. If you're going to use foot-slogging means, it would be more expensive and the lowness of the price therefore is an indicator of illegality. So I think
A. You can read it several ways. I don't want to put too much weight on that one sentence but it's not a very happily crafted sentence.
Q. Well, I think it probably was quite happily crafted but again, my opinion is quite irrelevant. What about "or high enough to indicate criminal activity"? You've given us snippets of that, ?750 for was that the PNC check?
A. Well, if you look at paragraph 5.35, that's where the full table is set out. This table was taken from the Motorman materials.
Q. Yes, you're right.
A. And the paragraph opens that, and what we did there was to tabulate the price which was recorded as being paid by the customer to the blagger, and then the price charged to the customer.
Q. Yes.
A. And we I'm not sure if it's on the screen, but
Q. Page 0035. LORD LEVESON We've got it. It's there.
A. And I mean, the examples I was giving earlier are the ones which I shared with the Select Committee just to illustrate the range of prices. It wasn't a fixed price for everything. MR JAY No.
A. But it was clear that, you know, there was a price to be obtained the price to be paid for obtaining registration ownership details of any car, ex-directory phone numbers, call records, criminal records and so on. Some were quite low figures, some were quite high figures, perhaps, as you're suggesting, reflecting the difficulty of obtaining the different sorts of information.
Q. We've been through the different categories with Mr Owens and sort of degrees of proof of illegality, and I don't think it's necessary to do that again with you, Mr Thomas. But thank you for reminding us of this table, because it's a very convenient setting out of the relevant prices. You also considered in your second witness statement the quantities of money involved here, the payments made by the newspaper organisations. This is at our tab 53, I think. Your second statement, paragraph 7, page 07721.
A. This was my attempt to make sense of the letter which had been sent to the FOI requester where some figures had been tabulated, and what I am suggesting in paragraph 7, which is on the screen now, is that taking the lower estimate for all the newspapers, the ones which were, in your language, probable but not positive, was ?300,435, but a maximum of ?547,160.
Q. Yes.
A. So that's the range. We're not saying each and every one was a criminal offence, but that's the range of the prices paid for the information as documented in the papers seized during the Whittamore raids.
Q. Thank you. That gives us an idea of the lucrative nature of the business. We're not, of course, looking at the exhibit because it names journalists and therefore has been
A. I see.
Q. as it were, removed from any publicly available document, but I should refer, as I did on Monday, to RJT29, when you make a correction in relation to the Sunday Times, don't you?
A. Yes. Do you want me to talk through that now?
Q. I think the Sunday Times would probably like you to, so if we could just deal with it quite briefly. It's under our tab
A. At this stage, I'll say that as a result of a letter from the Sunday Times we went back to the figures about a month after this was published and we found one error, and we corrected that. We wrote to Parliament, we laid it before Parliament. We wrote to all recipients, and I wrote a letter to the managing editor of the Sunday Times with an unreserved apology. What we had done, we had taken from the same notebook the data for the News of the World, the Sunday Times and the Times, and due to an inputting error, some had been misattributed. They should have been News of the World and they were put onto the Sunday Times, and we modified that in the amended table.
Q. So the table
A. I'm not sure whether the table you have is the new or the old table.
Q. It's the old. The table now for the Sunday Times should read only four cases but the News of the World figure increases to 228. Let's just check whether the version we have reflects those revised figures. Yes, it does. These are the revised figures, with your correction.
A. Yes. I have the reprinted version of the report, which has the correct figures.
Q. Thank you. Before I move off this topic onto another topic, which is going to the PCC, can I just ask you a question which arises out of your fifth witness statement, which is under our tab 59A. It's paragraph 13. I'm afraid I don't have the URN number because the version I have printed off is LORD JUSTICE LEVESON You want this paragraph up? MR JAY Paragraph 13, yes. LORD JUSTICE LEVESON Yes, it's 48890. MR JAY Thank you. Here you're dealing with some evidence, Mr Thomas, from the Daily Mail. Are you with me?
A. Yes.
Q. You say in paragraph 13: "Ms Hartley asserts the conclusion that the transactions are likely to reflect enquiries that did not involve illegal activity. This appears to have been justified largely by reference to the claim that the great majority of cases consisted of addresses and telephone numbers." Then you say: "However, this is not a conclusion that can be drawn." And then you say: "Addresses and telephone numbers obtained, for example, from telephone companies remain (using the language of Section 55) personal data obtained from a data controller without consent, even where that information might be obtained legally by other means." Just looking at that, if we are concerned with the mens rea of this Section 55 offence, could it not be said that if the information could be obtained legally by other means and the journalist doesn't, in fact, know the means that the private investigator is going to use, well, then it's at least arguable that there isn't knowledge or recklessness for the purposes of Section 55?
A. That is correct. I think the point I should make, though, is that the figures in the tabulations were not attributing the offences to the journalists. They were saying that the investigators had committed the offence. And I think both Associated Newspapers and News International have rather read too much into this we'll come onto this later by saying that we were saying in every case there would have been an offence committed by a journalist. But the numbers here were the offences primarily committed by the investigators, and given what we know about the modus operandi of Steven Whittamore, I think I would stand by the claim that addresses obtained, for example, from DVLA or from British Telecom would have been obtained by illegal means. He certainly would have had the knowledge for the recklessness. In court, I think he pleaded guilty using the reckless line, but there we are.
Q. Then you say, second bullet point: "For most people, a mobile or ex-directory phone number is not in the public domain and is treated as a confidential matter." Well, that certainly is true, but if the issue here is the offence in relation to obtaining a mobile or ex-directory phone number, of course usually you would have to do that by either going to the relevant phone company, in which case certainly an offence is being committed, or by looking at a list which someone else has compiled of such numbers, in which case offences may well have been committed because that list itself is derived from an illegal source. Would you agree with that?
A. Well, I suspect we may come back to this with News International, because they put evidence in recently saying that there is a database of some 48 million ex-directory phone numbers. It's the first I'd heard of this, but nevertheless that's what their evidence says and it says that the numbers have been obtained legally. I've no idea what that means. I am somewhat doubtful. But I'm not totally quarrelling with the idea that ex-directory phone numbers might possibly be obtained by legal means. 8 million is a huge number, for a start
Q. Mr Thomas, I'm asking you to think about it in these terms.
A. I
Q. One way you can get an ex-directory number is to plough through old editions of directories and try and find the individual when that individual had a published directory number. That is a possibility and that would be lawful?
A. Yes.
Q. But that may or may not be particularly plausible. Another way is that these 48 million numbers have all been obtained or most of them obtained illegally by someone who has deployed the same blagging methods which Mr Whittamore has deployed.
A. But there are
Q. Do you accept that?
A. No, because there are other explanations. I'm just not sure it's ex-directory numbers. I suspect it refers to mobile phone numbers. Now, on many, many occasions, when you go onto a website these days, buried away in the small print, without you knowing it, you are consenting to your phone number being passed on to somebody else. So that's one explanation. I deplore that, I campaigned long and hard to get much clearer notices to the general public, but undoubtedly there are organisations out there now who are using the small print for example, on websites to obtain phone numbers and to be tabulating those. That has become much more prevalent in the last four or five years. It wasn't so prevalent at the time we're talking about, but nevertheless it is, regretfully, a great deal easier these days, primarily through modern technology, to obtain more and more personal information about people. So I can't I'm being honest with you, Mr Jay. I cannot say categorically that an ex-directory number must have been obtained illegally, but in going back to this case, given what we know about Mr Whittamore and his methods, knowing he had corrupt sources inside the telephone companies, I think it's highly likely that ex-directory numbers were obtained illegally, and when you look at the price list, you don't start paying the I'll just check the ex-directory price. As a customer, you're charged between ?65 and ?75. You don't pay that sort of money if you can get it entirely legally.
Q. That's the point you make very accurately in paragraph 5.3 of your first report. You're saying: let's apply some common sense here, let's look at how much you're paying for this information. I'm not sure that one can sensibly disagree too strongly with that. Your third category in the bullet point on paragraph 13, where you're dealing with the reverse tracking category, Mr Thomas: "Addresses obtained from a phone number or car registration where the address is held by the telephone company or by DVLA have necessarily been obtained illegally." I think that may well be right.
A. I hope it is right. I mean, it seems to me that I think some of the media people were saying if it was only an address, it's only a phone number, what's wrong with that? This is common domain. But that misses the point entirely. If you got the address from a corrupt source inside DVLA or you got the address by working back from the phone number, reverse tracking or conversion, whatever you like to call it, it seems to me that can only have been obtained illegally.
Q. Given the mastery that you're displaying of this material and the inferences to be drawn from it, someone might say, well, if you had some of the editors in from the worst offenders towards the top of the list and you or your team asked them questions on this and their journalists, you might have got some rather interesting answers, which would have enabled you to consider, on a better evidence base, whether or not to prosecute. Don't you think
A. Well, my mastery, as you put it thank you, but my mastery has come in the last four or five years. I only got heavily involved in this when we published our report in 2006. I have become even more familiar over the last two or three months, with the build-up to evidence to this Inquiry. I can now see the picture perhaps a great deal more clearly. Your question suggests that we should have done more with the individual newspapers. We'll come on, maybe this afternoon now, to talk about what I did with the Press Complaints Commission, with the newspaper proprietor's association, with the newspaper society, with the Society of Editors, so I dealt with them all collectively. No, I did not go to each individually, but it seemed to make sense to me to go to them collectively and get them to put their house in order, and although I'm not claiming total success, I think we had quite significant success in doing that. And this was at a time you're taking me right back, of course, to 2003 when Rebekah Wade and Andrew Coulson had been to the Select Committee denying that this sort of thing was going on, and that's quoted in our report.
Q. Yes, I've been asked to put to you this question before I go to the PCC, as it were. Did you ask newspapers or editors to comment on the table which we see in the second report, "What price privacy now?" to comment on the table in draft before it was published?
A. No, it we didn't.
Q. After it was published, apart from the Sunday Times, did anybody seriously question your findings?
A. Not at all, and more generally, in the many, many conversations I had after the two reports were published, nobody questioned the general thrust of our report. No one asked to see the breakdown of the figures. No one asked no one said, "You've got it all wrong, you're barking up the wrong tree." And I said this in my first statement, the overwhelming impression I had from everyone I saw was: "You've found people out. You've brought to the surface that which people either knew or had a broad awareness was going on."
Q. So that we clearly understand this, without naming individual editors, did you have discussions about these matters with individual editors?
A. I don't think I've ever had a conversation to this day with an editor. LORD JUSTICE LEVESON Did you go to the code committee at all?
A. Oh yes. LORD JUSTICE LEVESON But the code committee consists of editors.
A. Well, the people I met there were Les Hinton and Paul Dacre, and I think they are proprietors rather than editors. LORD JUSTICE LEVESON I don't think so. Mr Dacre might be pleased to be the proprietor of Associated Newspapers, but I don't think he is.
A. Sorry, in that case, I met Paul Dacre, but only after the report yes, you're right, he calls himself editor-in-chief, doesn't he, of Daily Mail MR JAY Well, he is the editor of
A. Yes. I'm reflecting back on his notepaper, trying to recall what he said on his notepaper. So I have to apologise here and now to Mr Dacre. MR JAY Moving forward, Mr Thomas, to the post-prandial evidence we'll see what exactly happened with Mr Dacre and others, but we can start with the PCC now before lunch. You introduced this in paragraph 39 of your first witness statement. Under our tab 1, it's page 00269.
A. Sorry, I missed which paragraph.
Q. Paragraph 39. You deal with this towards the end of your witness statement, but I feel that we should bring it in now.
A. Yes.
Q. It kicks off with a letter you write on 4 November 2003, and this was, in terms of the advice notes we've seen, between the attendance note of 20 October 2003, which we saw in the legal advice file, and counsel's formal advice of 22 December. The letter itself is RJT3 under our tab 8, page 00360. I'll paraphrase it. He's just been appointed as its chairman of the PCC. You congratulate him, you ask for an early meeting. You refer to Section 55. You refer to the ongoing investigation. You say at the bottom of this first page you anticipate prosecuting a number of individuals in due course. The top of the next page: "At the moment, I am waiting while the police investigate serious offences relating to corruption." Then, three lines down on the second page: "It's clear from the very considerable volume of material that our investigations have collected that journalists from most national newspapers and many periodicals are significant customers." And then this is the bit you've read out: "I am considering whether to take action under the DPA against individual journalists and/or newspapers." And that's something you wished to stress earlier. That was really a threat, though, wasn't it, Mr Thomas, to Sir Christopher and a threat which I would suggest you weren't really going to exercise by then, were you?
A. I certainly didn't see it as a threat. It was meant to be a constructive and friendly opening in my engagement with the Press Complaints Commission.
Q. There's no reason why you shouldn't have made the threat.
A. Well, I wasn't threatening. I was simply putting him in the picture. So I certainly wouldn't characterise that sentence as a threat. It may have been somewhat overstating the case, and I think, you know, we've established that this morning.
Q. Okay.
A. But nevertheless I've stressed here because I did want to demonstrate to you that the possibility of prosecuting journalists was still very much live.
Q. I think we've been over that one, but in terms of what happened next, there was a meeting on 27 LORD JUSTICE LEVESON Are you moving from the letter? Because there's one question I would like to ask about the letter. MR JAY Please. LORD JUSTICE LEVESON Could you go back to 00360, please, Mr Thomas. It's the fourth paragraph: "You'll doubtless also be aware that I submitted a memorandum setting out the extent to which my role touched upon matters covered by the committee's enquiries. In addition, I had an informed meeting with the committee. I was at pains to make clear that though I do not wish to usurp your role as the regulator of the press My question is: what are you relying on as concluding that the Press Complaints Commission was a regulator? You're a regulator, but you've concluded here that they're a regulator, or asserted that they're a regulator. I'm just interested to investigate your understanding of that.
A. I'm glad you raised that because I think it goes, in many ways, fundamentally to the heart of some of the issues you're going to be dealing with. LORD JUSTICE LEVESON That's why I raised it.
A. They call themselves called themselves a self-regulatory body. They have said for many, many years and still say that it is really important to have self-regulation of the press rather than statutory regulation. We're familiar with those arguments. At that time, when I wrote this letter, in all my dealings with the PCC I certainly saw them as a regulator. But I have to say that my view now is that they are much more a complaint handler, and I draw a distinction between complaint-handling schemes and regulators. And regulators tend to be intelligence-driven, proactive, mainly focused on either prevention or punishment; complaint handlers are investigating complaints. I suppose I have reached the view, chairman, that that letter reflected my thinking at the time, I'd understood them to be a regulator, but perhaps we were at cross purposes. I had dealt a lot in my previous career with the Advertising Standards Authority, and I had regarded that as a model of good good self-regulation. I had been the architect of the banking and insurance ombudsmen schemes, which were self-regulatory and the governance arrangements there were modelled upon the Advertising Standards Authority, and I had in my mind associated the Press Complaints Commission with the same sort of approach as the Advertising Standards Authority: able to intervene and take action to prevent unacceptable behaviour. And that was my expectation when I had gone to see Sir Christopher Meyer. I think over time I was somewhat disappointed. Although I don't decry everything they did, it fell short of what I'd hoped they might be doing. So using that sentence in that letter, "your role as a regulator", that was my perception, somebody of some experience in these matters, that they were holding themselves out as a regulator of the press, and I think in fact they were more of a complaint handler. LORD JUSTICE LEVESON Was that perception ever the subject of discussion or in any sense was the role of the PCC more fully described so that you could correct your perception?
A. I certainly had three or four meetings with Sir Christopher Meyer and we've probably touched on some of these matters. My meeting with Les Hinton of News International when he was then the chairman of the Editors' Committee although I don't think he's an editor, by the way, that's why I perhaps was confused but in that conversation I can recall saying, you know, "Why can't you transform and change the Press Complaints Commission to make it look more like the effective self-regulation models I've encountered elsewhere?" My last paragraph of my statement, I'm happy to elaborate on some of that now or later. MR JAY At the end, Mr Thomas. LORD JUSTICE LEVESON Doubtless we'll come it, but while we were looking at the letter, I just
A. No, I think that's absolutely fair, and I did see them and they held themselves out as a regulator and I think experience showed that they were not a regulator in the conventional sense. MR JAY The purpose of going to them, as was clearly from counsel's advice, was to permit them to get their house in order, is that
A. That is a very fair summary of exactly what I and everyone else hoped they would do, and to some extent it was successful. I think they could have done more. But we thought, you know, the focus really was on stopping this market, how can we stop this sort of unacceptable activity carrying on? And they are supposed to be in charge of the press, they ought to know what's going on. We're constrained to some extent because the prosecutions are still under way, I can't share too much information with them, quite apart from the section 59 problems, which we'll come onto later, but I felt I could go and tell them as much as I could about what was going on and see what their reaction was going to be.
Q. There was a meeting set up for 27 November. In order to prepare for that meeting, you compiled a speaking note, which is RJT5 under our tab 10, 00363. I'm not sure that any specific points arise out of the note, save that you appear to have had at your fingertips then the nature and the quality of the evidence under the fourth bullet point, "The resultless of our investigations"?
A. By this time I was much more focused on this was I think probably I prepared this note myself, from what I've been told. I don't think this was drafted for me, this was my own note, and clearly by that time I wanted to have the information to share with the PCC about the nature and the scale of this. The bottom two bullet points are, you know: what could we expect from the PCC? Can we have a general condemnation? Will this lead to change in the code of practice? Then the meeting took place
Q. RJT54.
A. Sorry?
Q. It's at RJT54. Your notes of the meeting.
A. Well, yes. That's my handwritten note of the meeting. What I have not tracked down, nor has my former office, is the official note of the meeting. There was an email from me to my colleagues, including
Q. But this will do, Mr Thomas, because this is a note you were taking at the time
A. Yes, indeed.
Q. so it's probably the best
A. Fine. LORD JUSTICE LEVESON We will want to go to the email, though, because it's actually quite instructive. MR JAY Can we identify all the evidence which bears on the meeting?
A. Yes.
Q. We have the note, am I right in saying you took this at the time, at RJT54?
A. Yes.
Q. And then there's the email which followed it. Is it RJT6?
A. Yes.
Q. Our tab 11?
A. Which was written presumably shortly after the meeting; is that right?
A. Well, that evening (overspeaking) at 5 o'clock, 5.17 that evening. MR JAY Noting the time, may I go through these materials after lunch? LORD JUSTICE LEVESON Certainly, yes. 2 o'clock. (1.00 pm)


Gave statements at the hearings on 09 December 2011 (AM) and 09 December 2011 (PM) ; and submitted 63 pieces of evidence


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