This issue first came to my attention on 7 September 2010, at one of the first meetings of the Select Committee on Home Affairs that I attended. Into that meeting came the hon. Member for Rhondda (Chris Bryant) and the Assistant Metropolitan Police Commissioner, John Yates, following an article in The New York Times and an Adjournment debate that the hon. Gentleman had secured. Ever since then I have focused to a degree on the role of the prosecution authorities. I was struck by a quotation in The New York Times that said:
“A vast number of unique voicemail numbers belonging to high-profile individuals (politicians, celebrities) have been identified as being accessed without authority. These may be…subject of a wider investigation”.
That was in a file note of 30 May 2006, from Carmen Dowd, who was one of the top six people at the Crown Prosecution Service and running the case, to Lord Macdonald, then
head of the CPS, and Lord Goldsmith, then Attorney-General. Ever since then I have asked myself, “Why was nothing done by the CPS about this issue?”
John Yates explained at that Committee meeting that, at least in his view, the Met investigation was limited throughout by the interpretation of the law given by the CPS. The issue is that section 1(1) of the Regulation of Investigatory Powers Act 2000 says:
“It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission”.
That appears to be the basis on which Carmen Dowd advised the police—as she clearly did throughout—that they needed to prove that the interception of the communication happened before the intended recipient picked up that communication or message. It appears that that high hurdle limited the police investigation, and the police have made much of that throughout.
However, if we look further, we see that section 2(7) of the 2000 Act says that
“the times while a communication is being transmitted…shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.”
That provision, on the face of the legislation, clearly extends the period of transmission to include the time when a voicemail is being stored and the recipient might be ringing in, to listen either for the first time or repeatedly. I have therefore never really understood, like anyone else who has read the law properly, the basis of this narrow interpretation—there is a 2002 case involving NTL, but it related to an e-mail system that could not even store messages after they had been collected and it hardly takes precedence over what is so clearly on the face of the legislation.
Having heard Mr Yates and being aware of the Adjournment debate of the hon. Member for Rhondda and what he said subsequently, the Home Affairs Committee wrote to the then Director of Public Prosecutions, who wrote back to us in October 2010 saying that
“the approach…taken to section 1(1) of RIPA in the prosecution of Clive Goodman and Glen Mulcaire”
was that
“to prove the criminal offence of interception the prosecution must prove that the actual message was intercepted prior to it being accessed by the intended recipient…David Perry QC had approached the case on that basis at the time.”
That is why we see, with the royal household, there was a sting operation, in order to prove that the messages were being intercepted prior to the intended recipient picking them up—by telling the intended recipient not to pick them up until the police had checked whether the suspects had intercepted it.
We then have a series of pieces of evidence—we have 170 pages in the report on the CPS, on the police and on all how these issues went. I do not believe that there will be a part two to this inquiry. Frankly, I think that is partly why Leveson has gone as far as he has—by including those 170 pages—and, subject to the criminal prosecutions, given as much information as he has been able to. I have been tabbing up the areas in the report where it seems that that narrow interpretation of the law was given and sustained by the CPS and David Perry QC.