Hack Attack

by Nick Davies

  I let my imagination loose and emailed Paul Farrelly: ‘Why do that in May 2007? It’s four months after the trial, three months after Colin Myler’s arrival, eleven months before they find out that Gordon Taylor has the paperwork from Scotland Yard. Surely, somebody must have done something in or around May 2007 that made them decide suddenly to take that defensive action. Surely, somebody specifically threatened to accuse those six named execs of being involved in the illegal activity. Is it just a coincidence that it was at this time that Goodman and Mulcaire were threatening to take them to an employment tribunal?… Bear in mind that Goodman’s former colleagues tell me that he pleaded guilty because he understood that News Int would stand by him. Having agreed to take the rap, he was then told he was being sacked, which was not the deal he was expecting.’

  I strongly suspected that Goodman and/or Mulcaire had come out of jail and threatened to implicate those executives unless they were compensated; and that they had been paid to stay quiet; and that, whatever Harbottle & Lewis had said about these emails which they had studied, the News of the World had been breaking the law whenever it suited them.

  You don’t lie if the truth won’t hurt you. News International had emerged from the select committee without having to admit any wrongdoing, so they had won the day, but in the longer term, they were very vulnerable. I sent an email to Rusbridger: ‘Where we are: select committee will call more witnesses and will produce report which is likely to be v hostile to News Int. Scotland Yard may find it difficult to hold on to their policy of not reopening inquiry. Information Commission under pressure to disclose all the material they seized from Steve Whittamore. PCC floundering around looking for an excuse to do nothing. News Int appear to have dropped all attacks on the Guardian – not a word since we disclosed documents to the select committee. Nightmare for News Int is either that Yard reopen inquiry and/or that Max Clifford et al. win court orders for disclosure of more material held by Yard. They are sitting on a powder keg with carpet on fire with nothing but spit for protection. Nick.’

  * * *

  Then it was the turn of the police. On 2 September 2009, Assistant Commissioner John Yates gave evidence to the media select committee.

  A few days before that, searching the select committee’s website, I discovered that the office of the DPP, which was showing alarming signs that it was failing to act independently from the police, had given Scotland Yard a new gift. He had sent a memo to the committee with a strange interpretation of the Regulation of Investigatory Powers Act 2000, known as RIPA – the law which made voicemail-hacking a crime.

  According to this memo, it was a crime to hack into voicemail only if the intended recipient had not already heard the message that was hacked. Once the message had been heard by the intended recipient, according to the DPP’s memo, anybody at all could dial in and listen to it, and that would not be a crime. If that was right, it would dramatically cut the number of victims and the number of perpetrators – and give big support to the Yard’s version of events. I didn’t believe it for a moment.

  I checked the transcript of the trial and found that this interpretation of RIPA had never been mentioned, by the prosecutors or the defence or the judge. I checked back on parliamentary debates when RIPA was being passed into law and found no mention of anybody intending it to be read in this way. And I recalled that when he made his statement after our Gordon Taylor story, John Yates also had not mentioned this. Indeed, his language had been clear and wide: those targeted by Goodman and Mulcaire might have run into the hundreds, he had said, ‘but our inquiries showed that they only used the tactic against a far smaller number of individuals’. Still, for a police force coming under pressure, it was indeed a valuable gift. Recognising that this interpretation was almost certainly rubbish, I came to know this as ‘RIPA bollocks’.

  When Yates gave his evidence to the committee, Paul Farrelly, Tom Watson and Adam Price worked hard to unsettle him, but he stuck resolutely to his script. The Guardian story about Gordon Taylor had been nothing more than ‘a conflation of old stories’, he said, unconsciously echoing the line which News International had been using in their briefings for politicians and other journalists. More important, there was simply no evidence to justify reopening the inquiry. In all the material they had gathered in 2006, he added, ‘there was nothing to take us any further forward from an investigation point of view’.

  They had tried to obtain more evidence from the News of the World, Yates explained, by writing them a letter, asking them for information on a list of points. The newspaper, however, had refused to give them what they wanted. Had they gone to court, to get a production order from a judge which would have forced the News of the World to hand over its evidence? No, they had not.

  Sitting beside him, Detective Chief Superintendent Phil Williams, who had run the original inquiry under Andy Hayman, casually disclosed that among those identified as victims in 2006 had been Prince William and Prince Harry. Yet for three years, their names had been kept hidden, apparently out of nothing more than old-fashioned British deference to the royal family, whose names could not possibly be spoken somewhere so vulgar as a court of law.

  But Yates held firm to his claim that the affair had had few victims. Apart from the small number who had been identified and approached in 2006, there were only ‘a couple, a handful of people potentially’ who had not been warned and who were now being informed by police. And he recycled the ‘RIPA bollocks’ from the DPP.

  Behind this veil of smug denial, you could see the outline of their failure. Even though Scotland Yard wanted to claim that they were intent on identifying any other lawbreaker at the News of the World, they had not tried to interview anybody apart from the hapless Clive Goodman. And they had been just as weak in dealing with the victims. A statement from the DPP had revealed that back in 2006, when prosecutors agreed to go to court with only eight named victims, the police had agreed to approach and warn ‘any potential victim not reflected in the charges actually brought’. Clearly, they had broken that agreement. They had not even approached and warned Jo Armstrong, whose messages were clearly transcribed alongside Gordon Taylor’s in the email for Neville. They had not approached Andy Coulson, even though the evidence that he was a victim was clear enough that they could finally warn him within a day of Yates announcing that there was no need to reopen the inquiry.

  ‘There’s nothing to see here. Move along now.’

  * * *

  Meanwhile, the lawyers had engaged the enemy and were fighting hand to hand on two fronts.

  News International had tried to eliminate Mark Lewis from the game. Their solicitors, Farrer & Co., wrote to complain about the possibility of his acting for Max Clifford. ‘Your involvement in this case is plainly wrong,’ they had urged in a letter dated 6 August 2009, claiming that his role in the secret settlement of Gordon Taylor’s case meant that he had confidential information which he was not allowed to disclose. Indeed, they claimed, he could not do any more work on any phone-hacking case. ‘Were you to act for any other would-be claimant in respect of the voicemail accessing allegations, at the very least there is an undoubted risk that the confidential information would be put to use … You have an opportunity to correct matters by confirming that you will now accept that you cannot act for any individual wishing to bring a claim against News Group in respect of the voicemail accessing allegations.’ They threatened to go to court to take out an injunction to stop him. Lewis saw it as bluff and simply grinned and binned it. Farrer & Co. took no action.

  More serious, Scotland Yard persistently failed to hand over the information to lawyers who were trying to find out if their clients had been victims. First, they stalled, sending back a standard letter: ‘We are in the process of checking our records to see if your client was subjected to unlawful monitoring. As I hope you can appreciate, this process will take time but we will revert to you as soon as we are able.’ Weeks passed and then months during which the lawyers wrote again; a
nd again they received no answer.

  Eventually, Scotland Yard began to reply, with letters which soon had the various lawyers complaining bitterly. Like a shy bride on her honeymoon, the police disclosed just a little of what they had. The letters would acknowledge that in the material seized from Glenn Mulcaire, they had found a client’s name and/or mobile phone number and/or the PIN code used for accessing their voicemail and that this meant that the client was a ‘person of interest’ to Mulcaire, but they would then add a standard line which was the equivalent of the shy bride announcing that she had a headache, to the effect that ‘there is no documentation in our possession to suggest that your client has been the victim of unlawful interception’.

  This enraged several of the lawyers because it seemed to them to be gratuitous and misleading: gratuitous because it was up to the courts, not the police, to decide what the documentation suggested; and misleading because the police could just as easily have said that ‘this information clearly suggests that your client was targeted by Mulcaire and may well have been a victim of hacking’.

  Several public figures took them at face value and assumed that that must mean they had not been hacked. George Michael and Kieren Fallon, for example, had both believed that they must have been victims (as indeed they were), but both accepted that they must have been wrong and instructed their lawyers not to pursue the case.

  Some of the Yard letters showed signs of genuine bad faith. Lawyers for a senior media figure wrote asking whether his mobile phone number showed up anywhere in Mulcaire’s records. The police wrote back and said it was not there. Since this man was suspicious for a living, he found this hard to believe and so asked a different lawyer to write again, using different wording, this time asking if his name showed up. The police then admitted that he was named in Mulcaire’s hacking notes on three separate occasions.

  Similarly, the lawyer for a globally famous actress wrote asking whether police had documentation to suggest that a) her mobile phone had been unlawfully intercepted, or b) she was the intended target of unlawful interception, or c) her private information had been obtained by News International, or d) that she may have been the subject of any unlawful surveillance. After a delay of months, Scotland Yard wrote back saying no to all four questions – but failed to add that they did have documentation which clearly identified the actress as one of Mulcaire’s targets, and that they had made no attempt to find out whether that meant that the answer to any of the four questions might be yes. She, too, was misled by the answer and instructed her lawyer not to pursue the case.

  Mark Thomson waited a full three months for a reply to the letter he had sent police on behalf of a dozen famous clients in mid-July. Finally, on 14 October 2009, the police responded, claiming that they held no evidence on ten of the twelve public figures on whose behalf he had written to them. This later proved to be false. The Yard’s letter ended with a suggestion that his clients should contact their phone companies ‘who may be able to assist further’. This was as helpful as a swimsuit on a snowy day: the phone companies are required by law to destroy all their billing data when it is twelve months old and it was now more than three years since they had seized this material from Mulcaire.

  It was then that an extraordinary possibility dawned. Why were the police taking so long to answer these letters about potential victims? Why had they broken their original agreement with the DPP to inform all potential victims? Could it possibly be that they had no idea who all the potential victims were?

  Mark Thomson succeeded in getting a tip from Scotland Yard. And there was the answer. Back in 2006, detectives had seized a massive quantity of paperwork and computer records from Glenn Mulcaire – and they had never bothered to search it. They might have raced through it and produced a quick summary, but they had never done the job properly. They had taken a great heap of evidence of criminal activity – with whatever it disclosed about victims and offenders – and they had stuffed it into storage. So, now, thanks to these nuisance lawyers and their clients, finally they were producing a database of all the people who had been targeted by Mulcaire. Three years too late.

  And, of course, nobody – not the assistant commissioner, John Yates, nor anybody else from Scotland Yard – had said a single word about this to press, public or Parliament. Indeed, Yates had insisted that there was no need to reopen the investigation without ever explaining that neither he nor anybody else at Scotland Yard knew what evidence was lying unexplored in their possession. Even now, in the late autumn of 2009, as a group of officers finished scanning it all on to their database and indexing the contents, Scotland Yard still chose to say nothing. There was no press release; no letter to potential victims to inform them. There was only silence and a self-serving decision that if any potential victim wanted to know about the crimes committed against them, they would have to work it out for themselves and then hire a lawyer to force the evidence out of them.

  * * *

  You win some ground. You lose some ground.

  On the evening of Friday 6 November 2009, I flew into Copenhagen, to speak at a journalism conference. An hour or so later, my phone rang, and Alan Rusbridger told me that the Press Complaints Commission had produced a report about our Gordon Taylor story and seemed to have leaked it to The Times (prop: R. Murdoch). He had not yet seen the whole thing but he had heard enough, he said, to fear that the report was hostile to us. I met up with friends for a meal and tried to eat while my stomach went tight and refused to co-operate. A little later, Rusbridger got hold of a copy of the report and forwarded it to me. In the subject heading of the email, he wrote ‘Snow job’.

  The PCC had asked themselves only two questions. First, had the News of the World misled them during their original phone-hacking inquiry in 2007 by claiming that Clive Goodman was the only one of their journalists who had been involved? In answering, they managed to ignore the comments of the prosecution, the defence and the judge at the original trial and even to dismiss the email for Neville as ‘speculation’. They were happy to declare: ‘The PCC has seen no new evidence to suggest that the practice of phone-message tapping was undertaken by others beyond Goodman and Mulcaire.’

  Second, they asked whether their earlier actions had failed to prevent renewed hacking. They concluded happily that they had done a good job but, in doing so, they cut the Guardian’s legs off. They reported that our story about Gordon Taylor had claimed to have evidence that the hacking had continued after the jailing of Goodman and Mulcaire in January 2007. This happened to be untrue: there was nothing in the Guardian story about anything that had occurred after January 2007. The PCC then explained that they had asked me and Alan Rusbridger whether we had any evidence of hacking after January 2007. Since this was not something we had looked at, we had said we had none. The PCC now announced that we had confessed that we had no evidence to support our story. ‘The Guardian’s stories did not quite live up to the dramatic billing they were initially given,’ they concluded.

  Four months earlier, when I read News International’s attack on our first story, I had felt swamped by dread, that we had just got it wrong. Now, I knew better. This time, I just felt angry. I thought of the PCC’s director, Tim Toulmin, in July, lounging back in his seat in front of the select committee smugly declaring that the PCC had no reason to cover up anything at all. How dare they claim to be a regulator? They regulated the journalism industry the way a poodle regulates its master.

  Now, I was stuck in Copenhagen without a computer, and Rusbridger was in Nairobi, about to board an eight-hour flight back to London. Somehow, we had to catch up and get the truth across.

  Rusbridger took charge and, by email, orchestrated the paper’s response – reporters in London ‘to make sure we have a point-by-point destruction of their feebleness, their straw men and diversions’; the Guardian press office to put out a snappy response; me to write 800 words for Monday morning’s paper; the website to run something sooner; somebody to contact Paul Farrelly and other
MPs; somebody to draft a letter to John Whittingdale, chair of the media select committee. I persuaded a kindly Danish editor to let me use his office and started writing.

  By Monday morning, we were fighting back. ‘MPs express anger at PCC phone-hacking “whitewash”’, said the headline on the front-page story, which quoted Farrelly and Adam Price laying into the report and Charlotte Harris saying its findings were ‘contradictory and self-serving’. Inside the paper, I tried to describe what was wrong with the report and to list a few of the things which they did not say.

  I compared the PCC to a boxer who threw punches at shadows on the wall and then, having failed to land a blow on any real target, assumed the role of referee and declared himself the winner. I listed some of the things which they had failed to say and explained how lawyers for public figures were pressing to see the evidence which Scotland Yard was holding on them. ‘The PCC may yet discover that the only real victim of their attack is their own credibility.’

  Other newspapers did not see it that way, recycling the PCC report as though it were telling the truth. ‘“Phone hacking” journos cleared’, said Murdoch’s Sun. ‘Watchdog rejects paper’s phone-tapping allegations’, said Murdoch’s Times. Both repeated prominently the PCC’s line that the Guardian stories did not ‘live up to their dramatic billing’.