Leveson Inquiry

Morning Hearing on 04 April 2012

Lord MacDonald QC of River Glaven , David Perry QC and Sir Keir Starmer QC gave statements at this hearing

Hearing Transcript

(9.24 am) LORD JUSTICE LEVESON Yes, Mr Jay. MR JAY The first witness today is Mr David Perry. MR DAVID PERRY (sworn) Questions by MR JAY LORD JUSTICE LEVESON Thank you, Mr Perry. I'm sorry to interfere with your professional activities in Northern Ireland and I hope I haven't inconvenienced a court over there.
A. Not at all, sir. Thank you. MR JAY Your full name, please, Mr Perry?
A. David Perry.
Q. Thank you. You provided us with a witness statement under the standard statement of truth dated 30 March of this year. Is this your formal evidence to our Inquiry?
A. It is.
Q. First of all, please, about yourself. You are Queen's Counsel. You were, I think, made Queen's Counsel in 2006. Before then you were senior Treasury counsel and have practised at the bar now for I believe 32 years; is that correct?
A. Yes.
Q. Thank you. In your statement, you identify the materials you have looked at in order to refresh your memory in relation to events which occurred over five years ago now, but if I can take up the story, as it were, in paragraph 4, you tell us that in late July 2006, you were instructed to act as leading counsel in the prosecution of Mulcaire and Goodman, and your junior was Mr Louis Mably. Did you have any involvement in the case at all before July 2006?
A. No.
Q. Thank you. Were you aware in general terms of the advice which had been given by the CPS, principally through Ms Carmen Dowd, over the period April to August 2006, or not?
A. The first involvement in the case, so far as I can recall and from looking at the documentation, must have been, I think, the conversation that I had, or the meeting that I had with Ms Dowd on 2 August 2006, and I think it must have been at around that time that I became aware of the advice that had been given by the Crown Prosecution Service in general terms.
Q. Thank you. You describe the basic chronology in paragraph 4, that you appeared at a plea and directions hearing at the Old Bailey in November 2006. The defendants pleaded guilty, as we know, and the sentencing hearing took place on 26 January 2007, and the Inquiry has received a transcript of those proceedings, which runs to some 200 pages. Can I go back in somewhat more detail in relation to the earlier events? We have your instructions, which were prepared by the CPS on 28 July of 2006. They are under our tab 20. You may have them available separately. The page on our unique referencing number system is 18392. Do you have those instructions, Mr Perry?
A. Yes, I do, Mr Jay, thank you.
Q. I just want to identify what you had available. You had a review of the case, you had an advice file, then the email from Ms Dowd of 25 April 2006, which we'll have occasion to look at. Mr Bristow, he was the expert witness, wasn't he?
A. Yes.
Q. And the Vampire data and the voicemail message data, that was the detailed information which indicated when voicemails were accessed by Mulcaire, was that your understanding?
A. That's correct, yes.
Q. Can I invite you to look towards the bottom of the next page, our page 18393, the paragraph beginning: "The Vodafone evidence will form the strongest evidence against Goodman and Mulcaire." Are you with me, Mr Perry?
A. Yes, I am.
Q. "From the data provided, if it can be proved that on four occasions when messages came in to JLP's voicemail system, these were accessed before being listened to by him (on two occasions by the Goodman landline and on two occasions by Mulcaire's business line), these then could form the basis of substantive offences under section 1 of RIPA." So here the author of the instructions is expressing a view as to the true construction of section 1 and possibly section 2 of RIPA, which we might call the narrow construction; is that correct?
A. That's correct.
Q. Then we can see on 18394, three lines down: "However, my initial view is that offences of conspiracy (between Goodman and Mulcaire) to commit section 1 RIPA offences and section 1 Computer Misuse Act offences, may better reflect the alleged criminality involved and enable a more comprehensive case to be presented." In relation to the conspiracy offence under RIPA, the narrow view of the law would not necessarily be relevant. Is that correct or not?
A. That's absolutely right, Mr Jay, yes.
Q. Thank you. Of course, the instructions are self-evidently setting out Carmen Dowd's view. She was inviting you to apply your fresh mind to the issues, presumably; is that correct?
A. Yes.
Q. I think what is also relevant in this bundle is the email which followed the meeting which took place with you. Of course, it's not your email, it's Carmen Dowd's, so this is being filtered through her mind, not directly through yours, but it's at page 18403, and you'll see it's Carmen Dowd to various police officers, following the conference which took place in your chambers. Do you see that?
A. Yes.
Q. I just wanted to check that insofar as you do have a recollection of the conference, and one would plainly understand it if you don't, it probably chimes with any recollection you have. She says that she's had the chance to speak to you: "The issues we discussed were around proposed charges and the issues of seizure of material "The meeting was very useful and we concluded that in essence the alleged criminal activity alleged against the suspects does give rise to the offences I have outlined in my previous correspondence. We have briefly discussed before the possibility of arguing that what we have termed our Computer Misuse Act offences might fall to be considered as RIPA offences that the issue had not definitively been argued. I was reticent about arguing the point in this case. However, having considered the matter with counsel we have concluded that we could properly argue the point and in any event nothing would be lost as we already have the four main clear RIPA offences (if not more I hear!). We would therefore propose sample substantive offences to reflect the period of offending plus the four main offences under RIPA." Was she saying there that you advised her that the case could be brought under RIPA, in other words on a broader interpretation of sections 1 and 2 of RIPA, than the interpretation she, Carmen Dowd, had previously believed was correct?
A. I think that's right, Mr Jay. I think there were a couple of aspects to this. I think the first was that if the narrow view of the RIPA offence was to be pursued, could you nevertheless argue that the conduct complained of amounted to a Computer Misuse Act offence? My own view was that we could take the broader approach to the RIPA offences and in any event with the conspiracy the point didn't really matter, and I think, doing the best I can, I think my view also was that if we use both RIPA and the Computer Misuse Act, that was a confusing way to present the case. We really had to be clear about what we were presenting to the court or to a jury, if the matter were to be contested, and on that basis, the RIPA Act offences more accurately reflected the conduct that the prosecution were saying the suspects had at that time engaged in. So I think that's the way I'd answer your question. I hope I have answered it
Q. Yes, that is a clear answer, Mr Perry. There were really two points. First of all, you had evidence in the four main substantive offences which established in any event that the interception was before the true recipient had accessed the email, and this is referred to by Ms Dowd in the paragraph we've just been looking at. Secondly, in relation to the conspiracy charge, the distinction between the narrow and the wide construction of sections 1 and 2 of RIPA was not relevant because you would have the ingredients of conspiracy, even if the wide view was incorrect. Does that broadly summarise it?
A. Yes, exactly, thank you.
Q. I think there were also concerns, maybe borne out of previous experience, that juries had sometimes struggled with the Computer Misuse Act, and therefore it was more palatable strategically to go under RIPA. Might that be broadly speaking right?
A. Yes. I think broadly speaking that's correct.
Q. There's one other point on the email. The third paragraph, and you've referred to this in your statement, at the end of it you say, or rather Carmen Dowd says: "Although not able to provide a review decision until the evidence has finally been submitted, counsel does agree with me that the data provided does present a strong case thus far." But may I ask you what the review decision is a reference to, please, Mr Perry?
A. My understanding would be that that would be the decision as to whether or not the evidence provided a realistic prospect of conviction. As everyone, I'm sure, knows, the Crown Prosecution Service has to apply its own code of test, and my recollection, assisted by the instructions to counsel, is that at the time of these discussions, we did not have the evidence that was to form the basis of the prosecution case as subsequently presented to the Crown Court. LORD JUSTICE LEVESON What you did have was information that technically the phone companies could link up some calls, which gave you the basis for concluding that there was a strong case of interception. Of course, the other thing you did not have then was a single piece of paper from either of those who were going later to be arrested. You were doing this entirely on the basis of the police investigation through the mobile phone companies and through the victims. Is that fair?
A. That's correct, yes. Thank you, sir, yes, that's correct. MR JAY You also discuss in general terms, because the nature of the discussion was necessarily in general terms, given the paucity of evidence you had, the reach of the PACE powers, particularly under section 1, in the context of journalistic material. Do you recall that, Mr Perry?
A. Yes, I do, Mr Jay, thank you.
Q. The email records some of the obvious constraints there are in relation to seizing material which might include journalistic material, since, on my understanding of the law, one first of all has to engage the person being searched to obtain their consent, and it's only when they don't consent that you go for a production order. In crude terms, does my summary of the law reflect what the law is?
A. Yes, yes, I think so. There may be nuances to that, but I think that's right.
Q. I think I've squeezed all the nuances out and given a very crude summary, but I hope I didn't cause you too much consternation. Could we move forward then to the next conference, which was a bigger, as it were, more considered conference inasmuch as the police officers were there and of course the material had been obtained from Goodman and Mulcaire, and inconclusive interviews had taken place. That conference took place in your chambers. We have two notes of the conference. There's the notes which Mr Williams took, which I know you've seen, which is in our master bundle, as it were, in file 3, tab 131. But there's another note, which is your own note, I believe you may be in a position to confirm this which is under tab 41 of the bundle which has been provided to you for the purpose of this hearing.
A. Yes.
Q. Do you have both those notes, Mr Perry? May we be absolutely
A. Yes, I
Q. Mr Williams' note is a note you've only seen in the last few weeks; is that right? Or did you see it in 2009/2010?
A. To be clear, the first time I saw the note prepared by Mr Williams was when I was provided with it for the purposes of preparing my witness statement for your Inquiry.
Q. Thank you. That's when I emailed it to you about three weeks ago. But the notes which are your notes first of all, may I confirm that they are your notes, at tab 41?
A. Yes, I can confirm that the points for discussion, with the manuscript annotations, at tab 41, the manuscript annotations as they appear on that page, that they are my annotations in my handwriting.
Q. Thank you. So we can just identify another document, a document which has come out more clearly in the photocopy, about two or three pages further on, I believe are junior counsel's notes?
A. Yes, that's Louis Mably's handwriting and that goes over in my bundle over three pages.
Q. Thank you. The page reference for your note on our system is 18605. You'll probably want to use your notes, because they were made contemporaneously, as being your best guide to what you said at the conference. Presumably you'd agree with that, Mr Perry?
A. Yes.
Q. You say in paragraph 12 of your witness statement this is clear from all the evidence we've seen that you believed that "the essential matter on which we were asked to advise concerned the charges and the shape of the case." You say: "I was of the view that offences of conspiracy to commit unlawful interception were appropriate. In relation to the latter, I was concerned to keep the case within manageable proportions." If you look at your notes, we can see on the left-hand side, about halfway down the page, the reference to "180 names". Do you see that?
A. Yes.
Q. These were 180 targets of interception, although was it your understanding that in relation to perhaps very few of them, there was evidence to the criminal standard of proof that interception had taken place, particularly on the narrow view of the law?
A. Yes. I think the position, doing the best I can to recall, was I'm not sure, first of all, whether we had evidence in relation to other individuals, and I think that what was being discussed at this stage was that the case went wider than the three original victims, but quite how wide or whether there would be evidence to establish how wide was not yet or had not yet been determined.
Q. To be clear, at the time you were advising, you weren't shown any evidence in relation to these 180 names; was that correct?
A. I don't believe that I was.
Q. Your advice was, in line with standard practice, that you would take a sample number you deal with this in your statement say five or six individuals, as representative of the wider number of individuals whose voicemails had been intercepted. I've asked a bit of a leading question there, "standard practice". Could you explain in your own words why you don't go for all 180? Why just take a sample?
A. Well, I think the essential point is that in presenting a case or preparing a case, the most important consideration is to keep the case manageable and for the presentation of the case to be simple for all concerned, defendants and courts and juries, and by taking a sample of victims and including them within an indictment, you get a picture of the criminality and it means that the sentencing court in the event of a conviction can impose a sentence that reflects the scope of the criminality and it also means that the case can be prepared more efficiently, with more effective use of resources. So I think that's the thinking behind it as I understand it. LORD JUSTICE LEVESON But the critical phrase in that answer, Mr Perry, is that you have to reflect the scope of the criminality, isn't it? You have to make sure that while keeping the case within bounds, you reflect the broad totality of the alleged criminality and not just a section of it. Of course, you're dependent entirely upon what you're told, but that's what you would aim to do?
A. That's what you would aim to do, and I think in this case, when we did end up with further counts on the indictment, as I understood it, those counts reflected the individuals from whom we were able to get statements, because, as I understood it, it proved not to be possible to take it further in respect of all those who were possibly the subject of interception, because it wasn't possible to obtain statements from them. MR JAY Thank you. If you look at your note as well, under the heading "Scope of case", you see the reference under (c) to "Other potential defendants" and then you've written in in manuscript: "encouraged by others". So the piece in manuscript relates to something which emerged during the conference, did it?
A. I think that must have been I think that must have been me explaining what I was really driving at, which was whether there were other potential defendants on the basis that encouragement would be a sufficient basis for secondary party liability, and I think that that's what we were exploring at the time, or certainly what I was exploring at the time of the conference.
Q. Can I be clear, exactly what question did you ask the officers in relation to the possibility of other potential defendants? Can you recall?
A. My recollection of this is that I asked whether there was any evidence implicating any other individual employed by News International in the criminality that we were looking at in this particular case.
Q. Your note of 14 July 2009 refers to journalists and editors. Do you think you asked that question specifically or not?
A. I don't think I would like to say that I necessarily expressed it in precisely those terms, but I was concerned to discover whether this went further than just the particular individuals with which we were concerned and I think I was conscious in my own mind that the question had to be whether it was journalists to the extent of the editor.
Q. Did you ask the question through your own forensic curiosity, as it were, or did you ask it because you'd seen any evidence which suggested that others might be involved?
A. First of all, I hadn't seen any evidence that other individuals had been involved, but I think I was also basing the question on my own, I think, knowledge and experience of journalists and newspapers. I have friends who are journalists, and I was trying to establish whether there was something that or whether there was some evidence that went further than what we had.
Q. Okay. What answer did you receive from the police officers in riposte, as it were, to the question you put?
A. We were informed that there was no such evidence. I can't recall which officer gave that reply. I think, in fairness to everyone involved in the case, I think it's right to say that this was still at a time when the information that we were obtaining was continuing to develop.
Q. Yes. Is it possible that there were speculative discussions along the lines that there might be circumstantial evidence or inferential evidence, but at the moment we have nothing concrete, words to that effect?
A. It's certainly possible, although I have no recollection of it, and I think from my point of view I would have been looking to see whether there was a possibility of a case, rather than whether there was something that was speculative. We could all speculate. LORD JUSTICE LEVESON But many cases are built on circumstantial or inferential evidence.
A. Yes. LORD JUSTICE LEVESON That's not a mistake you would make.
A. But it depends on the combination of circumstances and the strength of any evidence, but certainly in the context of looking at the material that we had in this case and the evidence available to us, I certainly don't think I saw anything that would have enabled me to present a case in any on the basis of any inference or circumstantial evidence. MR JAY Can I ask you now to look at paragraph 14 of your statement. This is the reference to a production order, which of course you touched on on 2 August, and we understand the law. Mr Williams' note reads: "On scope of case at the moment pursue production order s1. see what it shows. if identifies another defendant consider." We see, Mr Perry, your interpretation of that, but I've been asked to put this to you, that the note by Mr Williams clearly suggests that when the question whether there might be other defendants was raised, the answer given was to in effect go on investigating and then reconsider, and that was the whole purpose of pursuing the production order route. Would you accept that?
A. Well, I think I take it in stages, because I think the first thing was that we were looking at the possibility of a production order, and my recollection is that we were looking at it for two reasons. First of all, whether there was a basis for obtaining evidence generally, which I think I deal with in my statement, and secondly, whether we could get a production order in relation to any evidence concerning payments made by Goodman and Mulcaire. Clearly, in any case, if in the course of pursuing your inquiries or in the course of the police pursuing their inquiries, the evidence changes, then that may require other decisions to be taken. And I don't think anyone's mind would have been closed to the possibility of decisions having to be taken, depending upon evidence that became available. I hope, Mr Jay, that that expresses my view. I'm not sure if I've actually answered your question, but
Q. I think you have. I think you're making clear, Mr Perry, that the door was at least being kept open to the possibility of evidence in relation to other defendants emerging, subject to whatever a production order under section 1 might unearth. Is that broadly speaking the position?
A. Yes.
Q. Thank you.
A. Yes.
Q. I'm asked to put this point to you: do you think that the production order, which was drafted by Mr Mably but never executed, was drafted on the basis that there was at least some circumstantial evidence which existed on 21 August 2006, which indicated that a further line of inquiry was appropriate?
A. I'm not sure about that, and, I mean, my understanding was that this was yes, the door had been left open, and yes efforts were going to be made to attempt to obtain a production order, but I don't think I would go so far as to say that it was done on the basis that there was circumstantial evidence with another line of inquiry open to the police.
Q. Okay. At the conference, there was some discussion as to whether the narrow or the wider view of the law was correct. Do you recall that, Mr Perry?
A. I don't have a clear recollection of it, but I think inevitably it must have been discussed because it dictated the shape of the case and the approach, and the fact that we were not proceeding under the Computer Misuse Act as well, I think there must have been an explanation as to why we were proceeding as we were, and I see that Mr Williams' note records some discussion in relation to that, and I'm sure that he's got it I'm sure that that is an accurate reflection of what was discussed.
Q. It's quite terse on the answer, as it were, although it identifies the technical argument which we've been discussing. Could I invite you, please, to look at Mr Mably's note and see whether that gives us any further clues? It's on the second page of his note.
A. Yes.
Q. Which is going to be in our bundle, I think it's going to be about page 18610. You can see what he's written down: "Charges, section 1 RIPA: see section 2(7) and before message listened to." And at the bottom of the page, although it's not very clear, there's a reference to Lord Woolf's case of NTL Group Limited, paragraph 19.
A. Yes.
Q. Again it's possible to subject that to at least two possible interpretations, but I think what one core participant wants me to put to you is that you may have advised that the narrow view of the law was correct. Do you think that's possible?
A. Well, I'm confident that that was not the approach that we took because it wouldn't be consistent with the terms of the indictment that was originally settled, and I think that the view that Mr Mably and I took was that what Lord Woolf had said in the Ipswich Crown Court case certainly provided an arguable basis for someone to contend that the narrow view was correct, but we thought that we should proceed on the broader view, and if the point were taken against us, we could meet it in a number of ways, because it was about making sure that we didn't lose the case overall, and we could meet it in a number of ways. First of all, we could say that that was not in fact what Lord Woolf had decided, and even if he had decided it, it wasn't necessarily for the purpose of his decision in that case, and the court was free to depart from it.
Q. Yes.
A. And in any event, the conspiracy charge could outflank any such argument. LORD JUSTICE LEVESON That's the point, isn't it, Mr Perry? That's the point, isn't it? That actually this couldn't be a sole offence, there had to be some other people involved. He's not doing it for fun, and therefore you do have a conspiracy allegation which blows this point into very nice criminal law, but of no practical impact on this case at all. I mean, I'm delighted to analyse the dicta of Lord Woolf at any stage, but it's just not relevant, is it? MR JAY Well
A. No.
Q. can I just counts 16 to 20 were not put as conspiracy charges, were they? They were put as the substantive offence solely against Mulcaire, weren't they?
A. Yes.
Q. So unless the charge was going to be reformulated as Mulcaire and others unknown, the point as to the narrow or broad view of section 1 and 2 of RIPA was relevant to counts 16 to 20, wasn't it?
A. Yes, I think there are two points, Mr Jay. First of all in relation to the conspiracy, the narrow point is not so relevant, if relevant at all. In relation to counts 16 to 20, that demonstrates, to my mind at any rate, that we did not take the narrow interpretation to be correct, because I'm not sure if in relation to counts 16 to 20 there was any basis for saying that the message had been listened to by an interceptor before it had been heard by the intended recipient.
Q. Yes. Can I just ask you this, though, in relation to counts 16 to 20: did you at any stage think, "Well, Mulcaire must have been acting in concert with one or two others, or maybe more than one or two others; we don't know who they are necessarily, but they must have existed, therefore there was a conspiracy"?
A. I mean, I I'm sure the thought would have crossed my mind as to what the possibilities were, but in terms of the evidence that was available, as I understand it, the evidence available was that Mr Mulcaire, on occasions, would obtain information and sell it on.
Q. Yes.
A. Having obtained it through the interception.
Q. Okay. Did you at any stage, Mr Perry, look at the Mulcaire notebooks and see the existence of what we're calling corner names?
A. I think I must have seen some of the notebooks, because I think some of the notebooks formed the basis of the exhibits that were deployed in the Crown Court proceedings, and I think some extracts may have been included in the bundles that we prepared.
Q. Your recollection is
A. But I'm not sure if I sorry.
Q. You did, actually, Mr Perry, because it's come back to me from the transcript, that when you opened the case to Mr Justice Gross, you referred to Clive as being on the corner names relevant to counts 1 to 15. Do you recall that, now? That's Mr Goodman, of course.
A. Yes, yes. Yes.
Q. By the time we get to the plea and directions hearing, and in particular the sentencing hearing, did you see any of the paperwork which related to counts 16 to 20?
A. I must have seen the evidence and exhibits in relation to counts 16 and 20. Precisely what I saw I cannot now recall, but I would have seen the statements that we had. I think we had a number of schedules as well in relation to the particular interceptions and individuals and I would have seen the technical materials or the evidence, technical evidence, in relation to that as well.
Q. Yes, because in terms of the procedure, the papers had to be prepared for trial, and you weren't to know, indeed you didn't know until shortly before 29 November 2006, that you were going to get guilty pleas. Is that right?
A. That's right.
Q. So the evidence against Mr Simon Hughes, for example, must have been prepared on the basis that there might be a trial, and you therefore saw it. Is that correct?
A. Yes. I'm confident that that's right.
Q. But can you not recall seeing relevant pages from the Mulcaire notebook, which included corner names, unique voicemail numbers, PIN numbers and the rest of the paraphernalia which was part of his modus operandi?
A. I'm sorry, Mr Jay, I can't recall that, but if you if there is something that you want to show me and ask me whether I saw a particular document, I'm perfectly happy to look at it and give you my best evidence in relation to that.
Q. There is one document from Mr Surtees, which I think you might have seen because it's part of the material which is under tab 20, which is the tab which included your instructions. I hope it's paginated in the same way. Look at page 18434. This comes to light on 10 August 2006, so you certainly wouldn't have had it on 2 August, but you might have had it on 21 August. LORD JUSTICE LEVESON It's not part of the instructions, Mr Jay, because the instructions in tab 20 are 28 July. MR JAY Yes. LORD JUSTICE LEVESON So they've just been collected together. This is an internal police document. MR JAY Yes. I know it's difficult at this range of time, Mr Perry, but do you think you might have seen this? It refers to what in general terms Mr Mulcaire had been doing, and the documents including details of home addresses, business addresses, PIN numbers, passwords and everything else.
A. May I just check, Mr Jay? I'm looking at a document 18434. It's manuscript.
Q. Yes.
A. And it's a decision log that begins: "It is clear from the documents recovered Have I got the right page?
Q. That's the one, yes, Mr Perry. LORD JUSTICE LEVESON It's obviously part of a much larger document.
A. Thank you. It looks to me I may be wrong. It looks to me as though this is a police decision-making log. I would not have seen an internal police log of this sort. MR JAY Okay.
A. As a matter of course.
Q. I'm not going to ask you to speculate as to what you might have seen in relation to counts 16 to 20, save, of course, as a matter of practice the papers would have been prepared for trial and whatever was necessary for the trial would have been sent to you. I think we can agree that much, Mr Perry?
A. Yes.
Q. There's one document which has acquired a certain degree of controversy. It's the "for Neville" email. Can you help us with your best recollection as to whether you saw that or not?
A. I I don't have a recollection of seeing that, I'm afraid.
Q. We know it was in the unused material. We know that it was capable of being relevant to the count on the indictment which related to Mr Gordon Taylor, but that doesn't prove that it was within the case papers for Mr Taylor's case, but there's one document which may throw light on this, and it's tab 89 in the files which were provided to you for the purposes of this hearing. It's a note of a conference between the CPS and the MPS on 1 October 2010. If you look at the second page of the note, it's going to come up, the unique reference number, the second page is 18749, it's items 3.10 and 3.11. Item 3.10 says this: "AH [AH is Mr Husain] stated that thought Thurlbeck is referred to in the Neville email, this does not of itself make him liable or guilty in any way. "SC [Simon Clements] also agreed, stating that David Perry QC looked at this in the original investigation and stated that if they pursued the element of the email and its contents would not have had any real effect as it had no real evidential value." There are two points there, Mr Perry. First of all is whether you think you might have seen the "for Neville" email. To be clear, it's highly unlikely you would have seen it on 21 August 2006. If you did see it, it would have been later on when the Taylor papers were being prepared. You can see that the assertion is being put forward there that you did see it. Do you think it's possible?
A. I'm just looking to see what Simon Clements was saying precisely in relation to this. My own feeling is that I didn't see it. LORD JUSTICE LEVESON Mr Clements wasn't involved in was Mr Clements involved in the original investigation?
A. No. LORD JUSTICE LEVESON So
A. Sorry. LORD JUSTICE LEVESON If he wasn't, then he could only get this if there was a piece of paper that said something like this.
A. I assume so. MR JAY Or piece of information. We haven't seen any document which substantiates that. It may be he was simply told that by someone who was involved in the original investigation or it may be that people's wires are crossed and they're just wrong, you didn't see it as part of the original investigation. That's probably as far as we can take that issue, isn't it?
A. I think so.
Q. The second point is the evidential value of it, that what is attributed to you there is in fact correct to this extent, that we know from later opinions you wrote in 2009 and 2010 that that was in fact the view you had as to the evidential value of the "for Neville" email taken in isolation, wasn't it?
A. Yes, and I wonder whether that sheds light on this, because I think that when I was asked to look at this much later, I think Simon Clements was involved in that stage of the inquiry, and I wonder whether this is actually a reference I wonder whether this is an elided reference to the later investigation and the views then expressed.
Q. Yes, I can see that, Mr Perry, that they may just be referring to the wrong period of time. Of course, when you looked at the "for Neville" email or were asked to assess its significance, were you asked to do so in the context of any other evidence, for example the corner names in the Mulcaire notebook, or were you just asked to consider it in isolation?
A. It was just in isolation. And also, I think it was in isolation, and I think it was also difficult because things were I think we were trying to look at things very quickly for understandable and perfectly reasonable reasons, but I think I was just asked to look at it in isolation and give a view.
Q. Yes, I understand. At the conference of 21 August 2006, do you recall any discussion about the strategy for notifying victims?
A. I can't I can't recall the precise details in relation to that, but doing the best I can, I've tried to think about this, and doing the best I can, I think that would have been a matter for the police, and I may say, I think the police officers were trying to do their best and were sensitive to the difficulties that this case threw up, but I think, in answer to your question, Mr Jay, that anything to do with the strategy on that aspect of it was not really I didn't see that as being a criminal law question.
Q. No. It was more a public law question, engaging Article 8 considerations, but I see where you're coming from.
A. Yes.
Q. I think the last topic which was discussed at the conference was the issue of confiscation under the Proceeds of Crime Act, and I can boil it down to this: your advice was that the focus should be on the cash benefit to Mulcaire, which was ?12,300, rather than any greater sum which he received under his continuing retainer with News International. Is that correct?
A. I think yes, if you boil it down to that. I think at the time of the conference, looking at Mr Williams' notes, I don't think we had all the information at that point, because there's a reference to "work out a benefit figure later", and I note from the documentation that you to which you drew my attention, there was the statement of information, the conventional statement of information provided by the prosecutor in the Proceeds of Crime Act case, and there was also a defence response to that, in which the defence stated that Mr Mulcaire had received payments under the retainer for legitimate work and they were contending that the payments in respect of the interception were those he received under the pseudonym of Alexander, which amounted to ?12,300, and I think the conclusion by the time of the hearing before Mr Justice Gross was that I took the view that that was the appropriate approach to take.
Q. Yes.
A. I think that was my decision.
Q. I understand, Mr Perry. I'm asked to put this to you, really on behalf of the police officers, that they were trying to argue for a more substantial sum based on the monthly retainer, because they thought it was part and parcel of the same criminal enterprise, but you, as it were, advised them that that couldn't be done or words to that effect. Again, is that what might have happened or what did happen?
A. Well, I think the position in relation to the Proceeds of Crime Act statement is clearly the police were contending for a higher benefit figure, and that's something for which they were contending, but the difficulty with that approach it seemed to me as a matter of law is that the question of benefit for the purposes of confiscation is a difficult issue. It depends upon whether a person who commits a criminal offence obtains property as a result of or in connection with their offending, which sounds rather simple, but it in fact conceals a degree of complexity, and the short point seems to me to be this: that if you do legitimate work and you're paid for that, it's difficult, it seems to me, to argue that you've obtained that as a result of or in connection with your illegitimate, illegal work.
Q. Yes.
A. Now, I guess we could have argued this and spent several days in the Crown Court and possibly gone to the Supreme Court to have the Supreme Court tell us who was right or who was wrong, but in the end I, in response to the defence statement, took the view that the more conventional and appropriate legal approach was the ?12,300. LORD JUSTICE LEVESON Mr Perry, you do not need to convince me at all about the state of the law in relation to confiscation, and we need not spend any longer on it at all, but there is a question, which is this: does it hide what was a subterranean concern that although, for reasons which you've explained, you'd chosen six specific counts and a conspiracy, that underneath it all there was a far greater degree of criminality going on here in respect of which a lot more money had been made?
A. Well, all I there were only a number of things I could go on. I could go on the documentation available to me and what I was told, and also, of course, I could go on what the defence were contending in their confiscation statement. And the point that was being made by the defendant's lawyers was that Mr Mulcaire had conducted legitimate assignments, for which he had been paid, they were itemised LORD JUSTICE LEVESON Mr Perry, I'm not challenging you. I'm not in any sense suggesting that the approach which you took wasn't entirely appropriate in the context of the case. The only question I'm asking is whether you had the feeling and it may be you can't remember that actually there was a concern that there was a lot more going on here than actually the indictment reflected. You may not have seen any evidence to justify it, you didn't go trawling through the bin bags, I'm not for a moment suggesting you did, but I'm trying to get a feeling of what was going on at the time. That's all.
A. All I can say is that the question that I asked at the conference on 21 August 2006 was prompted by a feeling that there was possibly something more to this, but that's a feeling you very often get in criminal cases. LORD JUSTICE LEVESON Yes. MR JAY Okay. What happened next is that Mr Mably carries out a review of the unused material, and as you make it clear, that's not with a view to seeing whether additional defendants are involved, but whether there is material which is capable of being exculpatory of existing defendants. Can we deal with it in this way: did Mr Mably draw anything to your attention which caused him concern as to whether the extent of the criminality in fact went much further than was being put to you by the officers?
A. No. So far as I can recall, he did not. LORD JUSTICE LEVESON But you wouldn't expect him to, would you, Mr Perry? The exercise of reviewing unused material, which, speaking for myself, I have done over many days in certain cases, is specifically that contained within the CPIA, within the legislation. It's not doing a review of what the police have done for the purposes of investigation of crime. It's simply trying to be fair to a defendant, to ensure that there's nothing that on the face of it undermines the case you're running or assists a potential defence case, and that's the long and the short of it, isn't it?
A. That's exactly right, sir, yes. And that was exactly the process that he was undertaking at this particular time. MR JAY Okay. When we get to the sentencing hearing you deal with this in paragraph 18 counsel for Mulcaire said, and this is referred to in the transcript, that the information relating to counts 16 to 20 would not have been passed on to Mr Goodman pausing there, he was the royal editor after all, he wouldn't have been interested in this material but to the same organisation. So that was Mr Mulcaire's own instructions to counsel. Then Mr Justice Gross said: "You had not dealt with Goodman but with others at News International." Mr Justice Gross was basing that statement on what he'd been told by Mulcaire's counsel, and I suppose one might add this: a bit of common sense added in. Would you accept that?
A. Yes. Yes.
Q. We can move the clock on in time to 14 July 2009 when you prepared a note, quite a short note, it's at tab 28 of the DPP bundle, where you set out your recollection of what you were told at the conference. It's our page 18304. You say this: "We did enquire of the police at a conference whether there was any evidence that the editor of the News of the World was involved We were told that there was not (and we never saw any such evidence)." Now, the clause in brackets, does that relate merely to what you saw on 21 August or does it relate to what you saw at all material times until 26 January 2007?
A. That refers to what we saw at all material times.
Q. Thank you. Then the same point in relation to journalists: "We also enquired whether there was any evidence connecting Mulcaire to other News of the World journalists. Again, we were told that there was not (and we never saw any such evidence)." Can you recall why you were asked to produce this note?
A. My understanding is that this was something that we were asked to prepare at the request of the Crown Prosecution Service at a time when the Crown Prosecution Service were looking again at the prosecution decision-making and strategy, and I think that a good deal of effort was being put into the attempt to reconstruct what had happened in the case and what had been known to the individuals, including myself and Mr Mably, and I was trying to do my best to assist in the Crown Prosecution Service attempt to recreate the state of mind that existed in 2006/2007.
Q. Thank you. On 20 July 2009, you gave an advice which is described as a draft advice. It's tab 52 of this bundle. To be clear about it, this was an advice which you were asked to do overnight. Do you recall this one?
A. I have a recollection getting a call some time late in the course of a day when I was I think I was already obliged to or I was in the process of preparing something else, and I was asked to do something at pretty short notice.
Q. Yes. The something else you were preparing was a case in the Court of Appeal the following day actually, it was on 25 July, I think, but you did this overnight and you fitted it in, as it were, and we can see that the advice runs to eight pages, so it took you some time to type up. The view of the law which you took in this advice, if I can take it shortly, was the narrow view of the law, and it suggests that that might have been the advice which you gave to the police on 21 August 2006. There are really two questions built into that, but can you take them both individually, please?
A. Yes. First of all, I think the position in relation to this was that I was asked to do this at a time when I didn't have access to any of the papers in the case, but I was provided with a document prepared by Detective Chief Superintendent Williams, and I think this note or draft note was largely dependent upon what Detective Chief Superintendent Williams had said, and if I did in this document give the impression that the narrow view had been adopted, then that is incorrect, and I think if it is incorrect, it's because both Detective Chief Superintendent Williams and I, our recollections were at fault. I don't criticise Detective Chief Superintendent Williams at all. He, of course, had been receiving advice throughout the period up to August, and it was quite a technical issue of law, but I'm confident that we did not take the narrow issue
Q. Okay.
A. of the law. And the moral of the story is: don't do advices overnight if you don't have the papers.
Q. That's certainly right, Mr Perry, but you do say, and I've been asked to draw this to your attention, in paragraph 15 of this advice, that not merely did you find DCS Williams' note to be extremely helpful: it certainly accords with such recollection as I do have." Do you see that?
A. Yes.
Q. Okay.
A. Yes.
Q. And the other
A. I have
Q. Sorry, please continue.
A. No, I was just going to say that I did find it extremely helpful, and looking at it, I took a view, I had no reason not to, and I think now if someone were to say, two years later or however long later, that this is the position, then that's an error that I think is probably easily made, but on more considered reflection, and having looked at the indictment and the material in more detail, I am confident that the narrow view was not the view that we took.
Q. Yes. If you look at your advice which was given the following year, on 13 September 2010, under tab 80, which is page 18696, by which time you did have your papers, you reverted, as it were, to the advice you gave on 21 August 2006.
A. That's correct.
Q. The summary of your advice is paragraph 28, where you said: "It was a difficult point, tenable arguments either way."
A. Yes.
Q. But you're entitled to continue to say that counts 16 to 20, which weren't conspiracy charges but substantive charges, could only have been advanced on the basis that you thought the wider view was tenable. That of course is right, isn't it?
A. Yes.
Q. On the first advice we looked at, the 20 July 2009 advice, you expressed views about the evidential value of the "for Neville" email, which I think we've already addressed as a discrete issue, because that was the issue concerning the DPP, who asked you to give the advice. Can I just look at some points you make between paragraphs 29 and 32 of your second advice.
A. Yes.
Q. Where you say: "In addition to the fact that the prosecution's approach to section 2 of RIPA 2000 did not affect the course of the proceedings or the charges against the defendants, it is also clear that it did not affect the police investigation. There were three principal reasons for this. "First, the police were already, prior to our instruction, of the view that the section 1 RIPA 2000 offence required proof that the message had been accessed without authority before it had been listened to by the intended recipient. It is however necessary to point out that this approach to the offence does not appear to have limited the scope of the investigation." I've been asked to put to you two points on that, Mr Perry. Whereas it's true that that was the police view before they went to Carmen Dowd in April 2006, the police view was confirmed by her. Would you accept that?
A. Well, yes, I do accept that, but I think the point that is being made in this paragraph is: when you're collating the data, you wouldn't necessarily know whether a voicemail message had been listened to either before or after it had been accessed by the intended recipient. I think that's the point that's being made there.
Q. Okay, but then the second point is this, that on the basis of Carmen Dowd's advice, which did coincide with the MPS prior view, the police went away and got sophisticated expert evidence through Vampire data following a sting operation of Mr Lowther-Pinkerton's voicemail in May and June 2006 which was able to differentiate between before and after accessing by Mulcaire. Do you recall that?
A. I know we had some basis for saying in some of the charges that you could distinguish that point, but I'm not sure if that was the case in all cases, but yes, I know that in some instances it was possible to make that distinction.
Q. Yes. It was the four instances which were referred to in the original instructions of 28 July and in the context of the Vampire data. I'm also asked to put to you this: that the narrow view of the construction of RIPA, which emanated really from Carmen Dowd in April 2006, so the argument runs, had an impact throughout the police investigation, because not merely did it cause the police to go away and get this complex expert evidence, but it also coloured their view throughout as to what had to be proved for the substantive offence as opposed to the conspiracy charge. Would you agree with that or not?
A. Well, I suppose the first thing I would say is I'm not sure whether I'm in the right position to say what view the officers took or what approach they adopted, but certainly the approach we adopted as counsel in the case was that the broad view was the one that we were going to take and that's the one that we did take and the point was never tested at the Crown Court.
Q. Yes.
A. The point was never taken against us to argue it.
Q. That's correct, Mr Perry, that whatever Ms Dowd advised in April, by the time you arrived on the scene on 2 August, you gave advice, and if it contradicted the CPS' earlier advice, well, then the MPS understood the position, didn't they?
A. Well, I suppose that's a matter for them as to whether they understood it, but certainly that was the advice that was being given.
Q. The only other document which might be relevant to the advice you gave in August 2006 is document 64, tab 64, in what I'm calling the DPP bundle, which is page 18654, an email from Mr Mably. If you look at paragraph 3, this is Mr Mably's recollection in October 2009. He says: "There was no written legal opinion. Our advice on the ambit of section 1 was given to the CPS orally in conference. It may be helpful to point out that our advice was based on section 1(1) of RIPA, which requires the communication to be intercepted 'in the course of its transmission'; section 2(7), an interpretative provision, which gives an extended meaning to the times while a communication is to be taken as being in transmission; and the observation of Lord Woolf CJ in relation to the effect of section 2(7): 'Subsection (7) has the effect of extending the time of communication until the intended recipient has collected it'. Our view was that the observations of Lord Woolf were correct, and accorded with the rationale of the prohibition in section 1(1). Moreover, it was also our view that in this case there was nothing to be gained from seeking to contend for a wider interpretation of section 2(7) than that contemplated by Lord Woolf." Might that be right?
A. Well, I think this may be following on from the note that I had done, because again I think this was when we when both Mr Mably and I were being asked, I think if a wrong turn had been taken earlier, probably as a result of what I'd written, I think I've put given my view earlier that year, then that may well have infected what Mr Mably had recollected but I think in consideration of the contemporaneous documents and the decisions that we took, that this may or does not appear to be an accurate reflection of the advice that we gave.
Q. I think that must be right, Mr Perry. We keep returning to counts 16 to 20, which is conclusive evidence of the view you must have taken, because I reiterate: those weren't conspiracy charges, and you, of course, would not have caused an indictment to be drafted which was based on an untenable view of the law. Self-evident, isn't it?
A. Yes. LORD JUSTICE LEVESON Did anybody ever suggest to you: "Hang on, why are we doing these charges when we can't prove that these messages were accessed before they'd been listened to"?
A. No. There was no such suggestion. And also, may I just add that it's not just the conspiracy in counts 16 to 20, because of course the conspiracy was an alternative to substantive charges that went up to count 15, and I don't think in relation to those charges, in addition, there was necessarily any evidence as to whether it had been listened beforehand or afterwards. LORD JUSTICE LEVESON Yes. I think we've done this point to death, Mr Jay. MR JAY We have. The last document is tab 86. You gave a note on 16 September 2010 when you explained the circumstances in which your 20 July 2009 advice was given, the circumstances in which your later advice was given, and made it clear that your later advice was correct because it was based on all the case papers, whereas your earlier advice had not been.
A. Yes.
Q. I think that, as it were, closes the position. Finally, out of fairness to everybody, do you have a view as to the conscientiousness or otherwise of the police officers with whom you were involved over the period 2006 to January 2007?
A. Mr Jay, may I say that sorry. May I say LORD JUSTICE LEVESON Just hang on a minute, Mr Perry. Just hang on a minute. I suppose if you've been asked to ask the question, it's hardly determinative of very much, is it? MR JAY No. LORD JUSTICE LEVESON All right. Answer the question, please, Mr Perry.
A. Thank you. My view is that my impression throughout this case, which was not an easy case, given all the sensitivities as well as the technical aspects and the difficult issues of law, was that everyone involved, both at the Crown Prosecution Service and in the police, were conscientiously attempting to do their jobs professionally and with some skill, and my distinct impression at the end of it all was that it was an example of collaborative efforts on the part of the Crown Prosecution Service and the police that had led on the face of it at any rate to a successful outcome on the facts of this case. I must say, I found everyone involved highly skilled, competent and professional. LORD JUSTICE LEVESON I'm not at all sure of the value of that question, Mr Perry, but it needs, therefore, to be put into context. Were you aware that some of the more junior officers involved in this investigation were extremely concerned that there was material that wasn't being looked at? Perhaps for good reason, because of the terrorist threat, but their concern was there nonetheless.
A. No, I wasn't aware of that. MR JAY Thank you, Mr Perry. Those were all my questions. LORD JUSTICE LEVESON Thank you very much indeed, Mr Perry. MR GARNHAM Sir, may I make an application
A. Thank you very much. LORD JUSTICE LEVESON One moment, Mr Perry. MR GARNHAM May I make an application to ask questions on one topic? LORD JUSTICE LEVESON What's the topic? MR GARNHAM The conference that took place with Mr Perry on 21 August. LORD JUSTICE LEVESON Very good. Questions by MR GARNHAM MR GARNHAM I don't know whether you can see me but can you hear me?
A. I can both see and hear you.
Q. Thank you. The conference that took place at your chambers on 21 August took place I think 12 days after the arrest of Mulcaire and Goodman, and the search of their premises; is that right?
A. I think that must be right. Were they arrested on 8 August?
Q. Yes. Do you recollect, during the course of that conference, there being discussion about what had been seized?
A. No, I'm afraid I can't, I can't recall that.
Q. Given that it had taken place I'm sorry?
A. No, I was just going to say I have no clear recollection of any discussion in relation to what had been seized.
Q. Given that that seizure had taken place less than a fortnight before the conference, might it have been a question you would have asked, "You've been into News International, what did you find?"
A. Yes, I that's a possibility.
Q. But you don't recollect any conversation about substantial volumes of notebooks?
A. No.
Q. But your recollection understandably, because I imagine you've done one or two cases since then, of the details of this conference is thin, is it?
A. Well, it's not it's not that clear. I mean, I can picture where it took place, I can picture some of the people, but I'm afraid trying to reconstruct it is extremely difficult, and I wonder in answer to your question I mean, I don't know what had been looked at by this time, and I know that we were trying to get the papers put together for service on the defence and to make sure that the shape of the case was correct so far as we wanted to present it.
Q. Thank you. The last question in relation to that conference and at all is this: did you have occasion during that conference or afterwards to consider what effect the advice the MPS had received from the CPS had had on the shape of the investigation? Was that something to which your attention was directed?
A. No, I don't think that was something that we considered or that my attention was directed to, because as of our involvement as counsel, and I was the person responsible for giving the advice, the position was that we were going to present the case in such a way that the broad view was to be adopted and we would meet the argument as and when it was put. That's the approach that we were taking. MR GARNHAM Thank you very much. LORD JUSTICE LEVESON Thank you. Right. Thank you very much, Mr Perry. Thank you. We'll rise for just a few minutes.
A. Thank you, sir. (11.00 am) (A short break) (11.08 am) MR JAY The next witness is Lord MacDonald. LORD JUSTICE LEVESON Thank you. LORD MACDONALD (affirmed) Questions by MR JAY MR JAY Your full name, please?
A. Kenneth MacDonald.
Q. You kindly provided us with a witness statement dated 19 March, running to 39 pages, under the standard statement of truth. Is this your formal evidence to the Inquiry?
A. Yes, it is. LORD JUSTICE LEVESON Lord MacDonald, thank you very much for the effort that you've put into the statement and I also publicly express my gratitude to the President of the Queen's Bench Division who has deferred hearing a case in which I know you're involved.
A. Thank you. MR JAY First of all, who you are. This is paragraph 3 of your statement. If I can just focus on the highlights, if I may, you were Director of Public Prosecutions for a five-year term between November 2003 and November 2008, having taken silk in 2007.
A. 1997.
Q. 1997, pardon me. You would have been the first to be DPP without being in silk, so I apologise for that. In July 2010, you became a Liberal Democrat here. You are visiting Professor of Law at the LSE and you are warden elect of Wadham College, Oxford. Is that broadly speaking the picture?
A. Yes.
Q. Thank you very much. You explain in your statement the role of the CPS and the role of the DPP. We're going to take those parts as read and go straight to paragraph 9 of your statement, first of all making it clear that your statement has been prepared from documents some of which you did not see at the time, some of which you've only seen for the purpose of putting together your statement, and your overall recollection of events is necessarily limited by the passing of time?
A. Yes, I think I've only seen three of the documents before, that's the two briefings sent to me and to Lord Goldsmith the Attorney General, and I believe I saw an email from Carmen Dowd informing me that the suspects were in custody and being questioned. I think the rest of the documents I saw for the first time in preparing my statement.
Q. Thank you. The prosecution was handled by SCD, which you explain, this is paragraph 9. Can we link that with paragraph 10. First of all what is SCD and what is CTD, please?
A. When I was DPP, we set up four specialist case work divisions for serious and sensitive criminal cases: the organised crime division, the counter terrorism division, which was CTD, headed by Sue Hemming; the special crime division, which was headed by Carmen Dowd and dealt with particularly sensitive cases; and the fraud prosecution service, whose purpose is self-explanatory, which was headed by David Kirk.
Q. Although this case was within SO13 of the MPS, which is the counter terrorism division broadly speaking, when it came to the CPS it was dealt with by the SCD?
A. Yes. It was not a terrorist case, self-evidently, and so it was placed within special crime division as being a case of particular sensitivity because it involved members of the Royal Family and Royal household.
Q. Thank you. Within paragraphs 10 and 34 of your statement you give an overview. A lot of it we're going to take as read, but because they are documents you saw at the time, we're going to focus on two documents. First of all, a briefing you received on 30 May 2006, which is under tab 19 of this bundle. It's page 18382.
A. Yes.
Q. This comes to you from Carmen Dowd, comes to you and the Attorney, which is standard practice, and it gives a broad overview of the state of play as at that date and it was no doubt of particular sensitivity and interest owing to the involvement of those close to the Royal Family?
A. Yes, there's a convention that any criminal case involving members of the Royal Family is brought to the attention of the DPP and the Attorney General as a matter of course. LORD JUSTICE LEVESON Nothing to do with the fact it's to do with a newspaper, it's because of the Royal household?
A. Nothing to do with journalists at all. It's members of the Royal Family. MR JAY Thank you very much. If one looks at some of the detail of this, but not all of it. If you go to the second page which is 18383, paragraph 2.9, what Carmen Dowd says is: "I have advised the police about the potential for offences under section 1 of RIPA and section 1 of the Computer Misuse Act." So both statutes are in play. Then there is reference to technical evidence. You see 3.0: "In relation to Goodman, another potential suspect has been identified That was Mr Mulcaire?
A. Yes.
Q. He had only just arrived on the scene I think earlier that month. as accessing the UVNs on a number of occasions and inquiries continue in relation to him." There is a misspelling there of his name.
A. Yes.
Q. And then she says: "I am told that in the media world he is widely suspected of being able to access mobiles." I'm not sure whether we can take that point any further. "He may well prove to the be the conduit between the telephone companies and Goodman." You see on the next page, 4.4: "A vast number of UVNs belonging to high profile individuals, politicians and celebrities have been identified as being accessed without authority these may be the subject of a wider investigation in due course. A number of the targets of this unauthorised access have been informed some of whom have declined to assist in a police investigation." And then the conclusions, 5.2 and 5.3: "Once arrests are made the media will have a field day." That was obvious I think on a number of levels.
A. Yes, I think it was pretty obvious.
Q. The second point: "The system for accessing voicemail messages appears to be rife." So not merely were you being given the flavour of something which related specifically to the Royal household and therefore gave rise to concern in its own right, but the picture here was the possibility, at least, of a much broader concern?
A. Yes, it looks as though the details relating to individuals other than members of the Royal Family, those details were in the possession of Goodman/Mulcaire, was the way I think I would have read this.
Q. Certainly. But this came to you, no doubt, amidst a whole host of briefings on other topics over the course of a working day and a working week but presumably you noted it as it went through your box?
A. Yes, and I think I wrote on the original copy a note that I should be kept informed. Again my concern was that members of the Royal Family were involved, and there was obviously a risk I think implied even at this early stage that members of the Royal Family might be called to give evidence. One didn't know what the content of the messages was and whether it could prove to be embarrassing in some way, and so a number of sensitivities around their involvement would have been at the forefront of my mind. As far as I'm aware, you're absolutely right, 2006 as I think Peter Clarke has already explained to the Inquiry was an extraordinary year for us. We had the trial of the 21 July bombers, we had the airline plot which arose very shortly afterwards, we had the dirty bomb plot, and we had the continuing ramifications of the fertiliser plot, all serious attempts at mass murder on the London transport system and around the country. The airline plot itself would have been utterly catastrophic had it occurred, not least to the British economy, because I imagine trade around the world would have closed down for a number of days at least. So we had a great deal on our minds and Peter Clarke, I know, because I worked closely with him during this period, had an enormous workload. Enormous.
Q. Thank you. The next briefing you received LORD JUSTICE LEVESON Just before we pass through this briefing, what you're being told in May 2006, whatever is to be done with it, and I recognise entirely the validity of the points that you've just made, indeed I did to Mr Clarke, that before there's a search or anything like that, there is already material to the effect that a large number of people have been accessed without authority. That's outwith what might emerge from a search.
A. Yes. MR JAY The second briefing, it was the search, it was 14 July, it's in a number of places in the bundle but I'm looking at it under tab 12, page 16551.
A. Yes, I have it.
Q. Again, we're just going to alight on a number of points. If you look at 2.3, Lord MacDonald: "The police have requested initial advice about the data produced and whether the case, as it stands, could be ring-fenced to ensure that extraneous matters will not be dragged into the prosecution arena." The reference to ring-fencing is to ensuring that members of the Royal Family in particular would not have to give evidence, it's not a reference to excluding victims, other victims, from the net of a possible prosecution?
A. That's right. And I think the extraneous matters referred to the content I mean, I think I can confidently say, as someone who's been a defendant more than a prosecutor in his career, there's always a risk in a case of this sort that the defence might adopt a strategy of shall we say trying to embarrass the prosecution out of bringing a case, and that might be by making it unattractive to prosecute the case for a number of reasons, including, for example, creating a situation in which one of the royal princes would have to step into the witness box. I think Carmen Dowd, my reading of it now having looked through this file is that both she and the police were very, very aware of that risk and keen to avoid placing themselves in a position where the defence might try to embarrass them in that way.
Q. Thank you. Could you turn over now to the next page, 2.10. There's a reference to the expert evidence: "The Vodafone evidence will form the strongest evidence against Goodman and Mulcaire. From the data provided if it can be proved that on four occasions when messages came into JLP's voicemail system these were accessed before being listened to by him (on two occasions by the Goodman landline and on two occasions by the Mulcaire business line), these could form the basis of substantive offences under section 1 of RIPA." So that necessarily is premised on a narrow construction of the Act?
A. Yes, it is.
Q. Then 2.11: "The other numerous calls made from the Goodman line, News International line and Mulcaire number to JLP's UVN number could form the basis of offences under section 1 of Computer Misuse Act. (Subject to confirmation that the voicemail system amounts to a computer and the messages 'data'.)" So the technical issues in law were not impacting on the Computer Misuse Act?
A. No.
Q. So different points there, although they were surely easily surmountable, the voicemail system would be a computer and the messages data, but I suppose those points needed to be nailed. Then we see 2.12: "However, my initial view is that offences of conspiracy (between Goodman and Mulcaire) to commit section 1 RIPA offences and section 1 Computer Misuse Act offences may better reflect the alleged criminality involved and enable a more comprehensive case to be presented." So that wasn't far off the mark?
A. No, I don't think it was.
Q. The conclusion, section 5, page 16554: "The police appeared to be able to present a cogent and presentable case which could proceed without the need to delve into the content of any messages left and/or retrieved, any use the information obtained has been put to, or who left such messages. Witnesses other than JLP and HA should not be required from the palace for prosecution." That was the summary of the position as at that date, and again something that you would just have noted and filed away in your memory, presumably?
A. Yes. Papers come across my desk, I read them and initial them and date them to indicate that I've read them, and then they go off into the filing system. I also had regular meetings with the heads of the specialist case work divisions to discuss particularly important cases. I'm not sure whether this at that stage would have come into that category, but I'm sure, because I'd asked to be kept informed, that from time to time when I had meetings with Carmen Dowd, she would update me on the position so far as this case was concerned.
Q. In terms of the overview you give over the succeeding pages we're going to look at some of the detail from paragraph 35 onwards you make the point on page 15530, the question was at the bottom of the page: "What thought you gave to the relevant law". You say: "I gave no thought to the relevant law. That was the responsibility of the reviewing lawyer and counsel." And that, of course, is standard practice, isn't it?
A. I'm sorry, which page is this?
Q. It's page 15530 on the internal numbering, original internal numbering, page 7? LORD JUSTICE LEVESON It's your subparagraph H. You wouldn't to have to do the work yourself; that's why you instruct counsel?
A. Yes. I think I made the point that Ms Dowd was head of the special crime division and therefore one of the four or five most senior lawyers in the CPS. David well, I think I can safely say that David Perry's reputation speaks for itself. MR JAY Can I ask you to move forward to paragraph 18, page 11 on your internal numbering, our page 15534.
A. Yes.
Q. Can I ask you to comment on this. You say: "I would have expected that if the MPS had indicated that the police were in possession of evidence to implicate other individuals within News International, the CPS would have advised them to continue with their investigation. As there was confirmation to the contrary, the CPS was unable to provide this advice." You were dealing with a hypothetical there, but would not the issue of resources at least for the MPS have entered into the equation?
A. Well, I can't speak to that, except to say that there does seem to be material in documents that I have reviewed to indicate there was some concern in the within the counter terrorism command about the level of resources that this investigation might consume, and I understand that. But I do think, as I said in paragraph 18, I would have expected had Carmen Dowd been told that there was material implicating other people that she would have advised the police to pursue that investigation. Whether or not they chose to accept that advice would entirely be a matter for them because, as I think it is well-known, the prosecutor, the CPS has no power to direct the police in the course force of their investigation. LORD JUSTICE LEVESON Would you expect the CPS to be involved in that sort of decision? I appreciate we're talking about a very specific set of facts, but have you experience of having to discuss with the police or would you have expected to have been involved with the police in discussion about the extent to which one line of investigation should be pursued in preference to another? You've identified the terrorist plots and we've already discussed those, but have you had experience of the police saying, "We have this operation, this is the position, this is where it could go, but actually, for reasons A to E, we don't think this is sensible". Could you provide a view?
A. If their conclusion was as you've just set out, that would, I think, invariably be accepted by the CPS since operational decisions are for the police. In very serious case work, terrorism, for example, the police would sometimes come to us and say, "We could pursue this line of investigation to obtain evidence X, Y and Z. Do you think we need evidence X, Y and Z in order to mount a case?" For example, one of the very earliest bits of advice I gave was to Peter Clarke when I became DPP when he came to see me with the transcripts of tape recordings that they had obtained of terrorist suspects to ask me whether I thought there was sufficient evidence on those tape recordings to arrest or whether they should see if they could wait a bit longer and get something more, and so they would we would give them that sort of advice, which is somewhat analogous, I think. LORD JUSTICE LEVESON It's not quite the same.
A. Not quite the same. LORD JUSTICE LEVESON I'm just wondering about the relationship between the CPS and the police, and I understand that the operational responsibility is the police, but I wondered whether you had ever been involved in the sort of discussion of a type that I've described whereby there is an investigation which has potential ramifications, may not be of the most grave crime, because that would tend to answer itself, where you are asked for a view as to the public interest.
A. I think I personally haven't and I think that would be extremely rare. It's rather difficult to imagine a situation where the police would come for that sort of advice, partly because they would jealously protect their own role in the situation, as we protected ours, which was the charging decision, but I cannot think of a situation in which the example that you've just set out occurred, certainly not one in which I was involved. LORD JUSTICE LEVESON It might have been in this particular well, it obviously wasn't, but in this circumstance, if rather more had been done so that they were in a position to say, "Actually, we could go down all these routes, but we have all this terrorism work to do, would you agree with us or would you express a view on the public interest?" your paragraph 18 suggests you'd have said, "Just carry on."
A. I think it depends what they're saying. If they came to me and said, "We found evidence that two other journalists at the News of the World were involved in this", then I would imagine she would say, "Oh, well that's interesting, I assume you're going to pursue that", or words to that effect. I wouldn't expect her to say, "Why are you doing that? Don't bother with that." Why would she say that? LORD JUSTICE LEVESON It's not that it's irrelevant, it's the pressure of other work is supervening.
A. I have no knowledge of any conversation of that sort taking place. LORD JUSTICE LEVESON I was actually trying to work out the relationship.
A. I think it would be rather unlikely. I think it would be extremely unlikely in the context of this case that the police would come to the CPS for advice of that sort. MR JAY Would resource considerations within the Crown Prosecution Service, as opposed to the MPS, have any impact on the course of the investigation?
A. No. The CPS financially was an extremely well-managed organisation. We came in just dead on budget every year that I was DPP. We had contingency funds for serious cases. We never, in my experience when I was DPP, abandoned or limited a case, a serious case for those reasons. Obviously one takes decisions, as David Perry has set out, so that a case is clear and appropriate for prosecution, but I'm absolutely confident from the material that I have seen that there were no resource pressures within the CPS in respect of this case.
Q. I move forward now to paragraph 27, page 14 or our page 15537. This relates to the advice which was given in conference, at least what you were told subsequently that advice was, on 21 August 2006, the no evidence point, to implicate any other individual. I've been asked to put to you this question, if you bear with me. Whether the evidence implicated others would depend on the elements of the offence under consideration, namely that if the narrow view of the law was the correct premise on which to proceed, that would colour whether there was no evidence to implicate any other individual as opposed to the wide view of the law?
A. I don't follow that. First of all, I don't think that was I don't think that can have been the advice that was being given, otherwise the indictment would have made no sense, and I would have expected anyone who thought that that was the advice that had been given to query the indictment, and of course that didn't happen. Secondly, I'm not sure that the narrower interpretation could impact in any sensible way upon the answer that David Perry was given in that conference. His question was whether there was any material to implicate other employees or journalists at News International and the answer was no. I'm not sure how a technical narrow piece of advice on a rather obtuse legal point could have seriously affected the answer he was given in that regard. It doesn't seem to me, from what subsequently transpired, that he could have been giving that advice in any event.
Q. I follow that, Lord MacDonald. I'm not going to pursue that one any further. Can I move on to paragraph 33 now, please, page 15, our page 15538. Were you made aware of the degree of co-operation or lack of it provided by News International in relation to the police investigation?
A. No, I don't have any recollection of this at all, and I would think that if I had been told by anyone that there was a lack of co-operation, it's something that would have concerned me and I would have made enquiries about it and I would probably remember it. I haven't seen anything to indicate that I was told that and I don't believe I was.
Q. You refer there to Carmen Dowd on 15 August receiving a call from News International's solicitors, that was Burton Copeland?
A. Yes.
Q. Just out of interest, really, it's in the bundle at tab 20, page 18438.
A. Is this the note?
Q. It's a manuscript note, which I deduce must have been written by Carmen Dowd.
A. Sorry, my bundle isn't numbered.
Q. Right. In tab 20, it's about two-thirds of the way through. It's probably going to come up yes, it's up on that screen there.
A. Ah.
Q. Is that Carmen Dowd's writing?
A. I don't know, I'm sorry.
Q. What it records is that she was told that the relevant information about the financial relationship between Mulcaire and Goodman would be provided voluntarily.
A. Yes.
Q. I'm not going to ask you to comment on that because
A. I didn't see this at the time.
Q. No. In paragraphs 35 and following, page 16, our page 15539, you look at some of the evidence in more detail.
A. Which page?
Q. Page 16.
A. Of my statement?
Q. Yes. Paragraph 35. There isn't actually a 35, it says 40.
A. That's why I was confused, yes.
Q. Yes, the numbering goes awry but it's supposed to be 35.
A. Yes.
Q. The story from 2 August 2006 we've covered with Mr Perry, but the story between April 2006 and August 2006 I'm going to cover with you, but I understand throughout that you're really providing us with a hearsay commentary on evidence which you weren't aware of at the time?
A. Yes, essentially my statement is going through the documents which I read in the course of its preparation.
Q. Thank you. Can I just alight on a number of points because you do assist us on those. There was a telephone call, you say in paragraph 35, made in March 2006 to the head of CTD
A. Counter terrorism division.
Q. Yes. I think that was Sue Hemming, wasn't it?
A. Yes, it was.
Q. But the case as it were was transferred to Carmen Dowd. In paragraph 36 you say: "I understand that the principal legal adviser to the DPP, Alison Levitt QC has spoken to the head of CTD [that's Sue Hemming] about this call. The head of CTD does not recall giving any specific advice and believes that she would not have given any without knowledge of the facts. She accepts that had the MPS asked her which offences might be appropriate to consider on the brief facts relayed to her, she would probably have given an indication, but any views that she may have expressed would necessarily have been provisional, not least because she was indicating that she would not be dealing with the matter herself." Because of course the matter had been passed on to the head of STD?
A. SCD.
Q. Pardon me. The documents pick up the position as at 4 April 2006. Can we look at tab 3 in our bundle, page 15967, which is the second page in tab 3. This is a request for guidance from the CPS. We can see that the police officers identified two relevant statutes, which was correct. You can see their analysis, which is really before any considered advice had been given by the CPS, slap in the middle of the page, in relation to RIPA: "This is an indictable offence and would attract a maximum two years imprisonment and/or fine."
A. Are you looking at the document headed "Review of case SIL66"?
Q. Yes, I am, in the middle of that page.
A. In the middle of the first page of that document?
Q. Yes. Do you see that passage?
A. Yes.
Q. "In terms of points to prove the key aspect would be that any interception took place prior to the intended recipient receiving the message." So this it's reasonable to deduce is the MPS view reached without any considered advice from the CPS?
A. Yes.
Q. Do you agree with that?
A. Yes.
Q. And the Computer Misuse Act, there were two disadvantages with that statute which really flowed from it being a summary offence attracting six months' imprisonment and/or fine, first of all that the sentencing options to the court were less, and secondly that certain statutory time limits would come into play with regard to charges?
A. Yes. Prosecutors have a duty to put counts on the indictment that enable the court in the event of conviction to pass an appropriate sentence and I imagine the view was taken that a maximum sentence of six months would not be appropriate.
Q. Thank you. If you pass through this tab to page 15979, which is four or five pages from the end
A. Again I'm afraid I don't have numbers.
Q. It will come up on your screen in a moment. This is another case LORD JUSTICE LEVESON It's the penultimate page of a case review, page 5. MR JAY Dated 20 April 2006. What the police are saying at the top of that page: "Following a brief and initial consultation with Sue Hemming That's the one you referred to in your statement?
A. Yes.
Q. back in March 2006 the following are believed to be the most appropriate criminal offences that could be considered if a prosecution was feasible." Then there's reference to RIPA. You see the same point again: "In terms of points to prove, the key aspect would be that any interception took place prior to the intended recipient receiving the message." It's unclear whether that view flowed from Sue Hemming's brief and initial opinion, as it were, or whether it was already in the mind of the MPS, but there is evidence we've seen that it was in the mind of the MPS before Sue Hemming arrived on the scene in any event?
A. Yes.
Q. The advice was sought on 25 April, you say in paragraph 39 of your statement, and the advice was given on 25 April at page 15989, which is in the next tab, tab 4.
A. Yes, I have it.
Q. It in fact refers to a conference on 21 April between the police and Carmen Dowd. She's now giving her more considered view. I don't think we need look at her analysis under the Computer Misuse Act, if you don't mind. We're going to look at her analysis under RIPA, page 15990, the second page of this. Four lines down: "The offences under section 1 of RIPA would as far as I can see only relate to such messages that had not been previously accessed by the recipient. However, this area is very much untested and further consideration will need to be given to this." Well, we can interpret that for ourselves, but what she's probably saying there is that her opinion is the narrow view of the law is correct, but she's recognising that it's untested and further legal analysis would be required?
A. Yes.
Q. Then she says: "Again, the actual technical evidence would need to be carefully considered before any firm view could be taken about whether the offence is capable of being proved. Unless the offence is capable of showing all of the details we discussed (length of original message, length of call to recipient's voicemail, et cetera) it is unlikely we could proceed with the technical evidence alone. If such evidence was forthcoming, it is in my view entirely possible to ring-fence the investigation and any subsequent prosecution to ensure that only those witnesses discussed [that's to say the secretaries to the Royal household, not the princes] would be the subject of matters before the court."
A. Yes, again obviously a focus on avoiding the need for members of the Royal household to give evidence in the trial. I should say members of the Royal Family.
Q. Would you accept at least this much, Lord MacDonald, that the narrow view of the law, which probably would be your preferred view but you accept it's untested, had an impact on the investigation at least to the extent to which it defined the way the expert evidence would have to be obtained to prove the substantive offences as opposed to any of the inchoate offences?
A. Yes that appears to be the case.
Q. Okay. We know from evidence we took at the end of February that a sting operation was undertaken in May and I think early June 2006 where the two secretaries were told not to use their voicemails and so the expert evidence could be obtained with highly sophisticated technical data.
A. Yes, that's right.
Q. It's also relevant, as you point out in paragraph 42 of your statement, a correct summary really of what Carmen Dowd was saying, but there were two legally viable offences, namely the RIPA offence and the Computer Misuse Act offence, and both remained in the frame, as it were. Is that right?
A. Yes.
Q. We know that from the police's own understanding of the position. Go to tab 11, page 16498. This is a decision log of Mr Williams. He says in terms, summarising the advice Carmen Dowd gave, point 1: "The behaviour described does give rise to offences under section 1 RIPA and section 1 Misuse Computer Act subject to appropriate evidence." You rightly point out that the 1990 Act was still very much in play, wasn't it?
A. Yes, it was.
Q. The way in which the investigation then proceeded in terms of the technical aspect, I refer to the sting operation, that's at the bottom of this page, do you see that?
A. Yes.
Q. And that would enable evidence to be obtained which would bring home the RIPA offence, even on the narrow view of the law?
A. Yes, exactly.
Q. Thank you. Paragraph 43 next, please. We're moving forward in time to the end of June 2006, where you say: "The MPS sent a file to the CPS seeking further advice. That file indicated that the investigation was indeed proceeding into offences under RIPA and the Computer Misuse Act." That is correct. We can see that from paragraph 12, page 16534. We can really just note that in passing because the position had not really changed since 26 April. At this point, the investigation was proceeding under both statutes, although the technical evidence for the purpose of RIPA was directed to the narrow view of the law being correct?
A. Yes.
Q. We move forward now to paragraph 44. There's a letter of advice from the head of SCD dated 18 July 2006. It's tab 12, page 16559. Again, it's about two-thirds of the way
A. Yes, I have this. This is dated 18 July.
Q. Thank you. It's going directly to DSI Williams. Carmen Dowd is looking at the expert evidence now, because the expert evidence which had been analysed following the sting operation was predicated on the basis that you could see that the accessing had taken place before the intended recipient had ever heard the message. At the bottom of that page: "Whilst there are many aspects of the evidence which I require to be clarified, it is my initial assessment that offences under the Computer Misuse Act and RIPA may be provable. However, in addition, I would be looking to consider an offence of conspiracy to commit these offences on the basis of the other evidence being available relating to HA's telephone, the O2 telephone recordings, the financial evidence and the contact between target 2 and target 1 via mobile. The case appears to be cogent and presentable." She then identifies the possible weaknesses in the case, but there's not much of particular concern. I'm asked to put this to you: 18 July appears to be the first occasion when the offence of conspiracy was mentioned as another possible way forward. It certainly accords with my recollection of the documents.
A. I'm sure you're right about that. I can't really assist. I can't remember all the documents I've seen I'm sure if it's put in that way, that's correct.
Q. Would it be your understanding that the advantage of the conspiracy charge would, as it were, steamroller or iron out all the technical issues that arise as to the correctness or otherwise of the narrow view of the law on sections 1 and 2 of RIPA?
A. Yes, because the offence becomes the agreement. LORD JUSTICE LEVESON I'm not sure I agree with either the words steamroller or iron out. It's because it's a different offence which has different ingredients, neither more nor less. MR JAY The trouble with using metaphors is that it gives rise to some loose thinking on occasion, particularly on the part of the person who has just asked that question. Let's move on. What you've just said, Lord MacDonald, takes the matter slightly further than what you said in paragraph 45. You use the adverb "necessarily" there. You say: "A charge of conspiracy would not necessarily require proof that every interception had taken place before it had been accessed by the intended recipient."
A. One tries to be very careful with words drafting statements of this sort. I think I was being unduly cautious.
Q. Unless it can be said that the agreement was only to intercept voicemails after the intended recipient had already accessed it, which of course would be fanciful, then you're being far too cautious in paragraph 45, aren't you? Do you see my point?
A. Yes. LORD JUSTICE LEVESON Yes, I think he's agreed with you.
A. Yes, I do. LORD JUSTICE LEVESON He said it before you did, Mr Jay. MR JAY Paragraph 46. This is the issue of instructions being prepared and this is really where Mr Perry can take over the baton from you. We have heard evidence as to what he advised at all material times throughout, haven't we? So I'm not going to ask you to comment on that, in other words, because we can take it from him. I have one point for you which I've been asked to raise, much later on in your statement, page 24, page 15547, on CPS resources.
A. Yes.
Q. Can I ask you to comment on one document which is tab 55, the first page of it, 18643. It's Mr Clements. We're much later down the road, 21 July 2009. Paragraph 8 and 9 suggest that there might have been a limitation on Crown Prosecution Service resources.
A. These paragraphs, I think, are referring to the review of what had occurred, the 2009 review of what had occurred in 2006 and 2007. I think Mr Clements is acknowledging that the situation when it comes to a review of that sort might be slightly different than the situation when one is investigating criminal offences, but I'm absolutely confident that the resources, the question of resources had no impact whatsoever on the CPS' approach to this case in 2006 and 2007.
Q. Thank you. LORD JUSTICE LEVESON And nobody has suggested to the contrary.
A. No. Thank you. MR JAY In paragraph 56 of your statement the rest of it we're going to take as read, if you'll excuse us for doing that. Page 29, 15552.
A. Paragraph 56?
Q. Yes. You say that Mr Davies came to see you?
A. Yes, he did.
Q. This was Nick Davies. Which was can you remember the month?
A. It would have been following shortly following the publication of his article, so I'm sure it would have been in July 2009. He came to see me in my chambers and he wanted to speak about the 2006/2007 inquiry. I knew Nick Davies, I'd met him on numerous occasions and spoken to him on numerous occasions, both in connection with articles that he'd written and I'd seen him at various receptions. So he came to see me, but I think I told him I had very limited involvement, I couldn't really assist him.
Q. You wouldn't even have had the briefing notes which we know were sent to you at the time because they remained with the papers at the DPP whose office you'd by then left?
A. Actually, I had to be reminded about those notes. I had no recollection of them at all.
Q. May I now finally deal with some more general matters to cover, paragraph 58 and following, which deals with these paragraphs deal with engagement by the media.
A. Yes.
Q. You explain that the CPS were seen by the media and by the public as "vague, remote and unaccountable". Public confidence in the work of the CPS was "extremely low". So did you embark upon a policy better to engage the media in order to ameliorate that position?
A. There were two sides to this. First of all, better engagement with the public. We had a series of programmes of policy development which had been started under my predecessor, Sir David Calvert-Smith. We would publish policies in particular areas of prosecution work, domestic violence, sex crime, race hatred cases, and in order to develop these policies, we would meet with community groups and interested parties, we would consult and then we'd publish. So we were doing a lot of community work of that sort. We also as another part of this effort had a deliberate policy, I introduced a deliberate policy of deeper and broader engagement with the media, and I've set out some of the examples of this work in my statement. I regarded it as part of the work of senior prosecutors, particularly Chief Crown Prosecutors, to engage with their local media, to go on local radio stations, to speak to the press, to give interviews after cases, to become public figures in their areas, and I saw this as being a part of raising our profile, a demonstration of our public accountability, and a means by which we could develop public confidence in our work. So it was a deliberate strategy which I instituted, and which I was enthusiastic about promoting across the service. Indeed, when I appointed new Chief Crown Prosecutors during my period in office, I made it absolutely plain to them that part of their role would be to engage much more positively with their local communities and indeed with their local media, and the instructions which I gave them of course I followed for myself at a national level.
Q. Thank you. You also say in your statement at paragraph 65 that on occasion you would meet an editor or a journalist for lunch
A. Yes.
Q. or much less commonly dinner, to discuss matters of interest. Why was it necessary to meet them over a meal?
A. Well, it wouldn't always be thus, but it was really a question of having an opportunity to talk to senior journalists and editors about our work off the record in circumstances where the conversation would flow naturally and easily. In that sort of role, the role of DPP, one does begin to build up relationships with significant figures in the media. Some journalists who were particularly for example, specialists in legal work I would see quite regularly, so it was a perfectly natural and I thought useful thing to do it in that way. I think that the coverage of our work became a little less hostile than it had been in the past. It provided me with an opportunity to engage directly with senior journalists and editors when inaccurate stories were printed about us, and that also had a positive effect. It also I think demonstrated to my own staff the importance that I attach to this work, that I thought that the way we were written about in the press was important, not just from the public's point of view but from the point of view of our staff. It's extremely debilitating if people work for an organisation and all they ever read about themselves in the newspapers every day is what you might describe as knocking copy. I thought that was bad for morale, and I thought it was presenting an untrue and unfair picture of our work. So that everything did in this regard, including my lunching with journalists, was part of an effort to combat this and to get a better, fairer and more rounded impression of our work out to the public.
Q. In terms of what journalists printed, do you feel that that policy was successful or not?
A. I think it was successful. There were some distinct examples of particular newspapers who quite changed their approach towards us when we were able to confront them in a friendly way with demonstrably inaccurate stories that they featured sometimes on their front pages. I think generally an organisation like the CPS is never going to please everyone, it's not in business to please people, but I think generally the portrayal of the CPS and of prosecutors in the press improved, and I think improvement that has been maintained and I think the policy of engagement which I've described has been continued by my successor; he can speak for himself. I should say it was instituted by my predecessor, so I didn't entirely invent all of this, but I'm sure that it was the right policy and remains the right policy.
Q. The review of the hospitality records show, as you said, that you tended to see journalists interested in or practising in legal affairs more than any other, then I suppose crime journalists, crime correspondents next. But you did meet with I think the editors of virtually all of the national newspapers from time to time?
A. The only editor I didn't meet was Mr Dacre.
Q. Yes, you're right, I haven't found his name here. But everybody else
A. Yes, I met instead with his social affairs editor on a number of occasions, Mr Doughty.
Q. You say in paragraph 67, Lord MacDonald, you agree with the evidence given by Nick Davies that it's not contact with journalists that's the problem, it's whether you allow that contact to corrupt your decision-making. Is it not possible to say that there's an intermediate position, namely the perception in the legitimate public eyes, as it were, that decision-making might be impacted adversely?
A. I think this is a situation which has to be handled carefully, and there are obviously strict rules. One doesn't breach confidences, one doesn't have inappropriate conversations with journalists and one doesn't allow journalists to influence in any way whatsoever prosecution decision-making. But with those caveats, I think that contact between public bodies and journalists is strongly in the public interest, and I think we need to avoid a situation where public bodies feel that contact with journalists is something which is unprofessional or inappropriate. There are obviously boundaries that have to be observed, but I do believe that part of living in an open, democratic society, one aspect of that, an important aspect of that, is contact between public bodies, people working in public bodies and those journalists who are conveying ideas and news to the public on a daily basis.
Q. Might I ask you this: do you have a reaction to some of the evidence this Inquiry received in the first two weeks of hospitality enjoyed by police officers, senior police officers paid for by journalists?
A. The Inquiry will draw its own conclusions. You just asked me whether perception is important, and I accept perception is extremely important. It's as important to public confidence as the desire to explain yourself to the public is important to public confidence. I think there's a slightly sharper issue, which is the issue of whistle-blowing, which I've also addressed in my statement.
Q. Yes. I was going to ask you to develop that. I think the essential question is that the this, that the Protected Disclosures Act of 1996, if I correctly recall its title, sets out a specific mechanism by which whistle-blowing could take place, namely within the organisations rather than to journalists outside the organisation. Why isn't the statutory route, as it were, the appropriate one?
A. I have a fundamental difficulty with the idea that whistle-blowers have always in all circumstances to exhaust their remedies internally. I worked in Whitehall for five years as DPP, having come from the bar. I'm now back at the bar. My fear is that if the internal remedy is the only route for a whistle-blower, too often that would result in suppression in one form or another. My own view is that there is a very strong public interest in appropriate circumstances for there to exist a route from whistle-blowers direct to journalists. I acknowledge that it is extraordinarily difficult to design a system which allows for this and it may just have to be something which exists and which occurs from time to time, but we can all think of cases in which it would be critically in the public interest for a whistle-blower to go straight to a newspaper or to a media organisation, and I think it is strongly in the public interest from time to time that that occurs. So obviously whistle-blowers face a number of existing legal impediments. I think it would be a matter this is my personal view, if you forgive me for expressing it it would be a matter of significant regret if this Inquiry resulted in further legal impediment to that process. Whistle-blowing is often in my view from time to time in my view in the public interest and should not face further legal discouragement. LORD JUSTICE LEVESON I'm not sure anybody has suggested further legal impediment.
A. I'm sure they haven't. MR JAY Thank you for that. I'm just checking, there is just this general point, if I can close with this point. I've been asked to put this to you by others. We don't see many notes from Carmen Dowd in the papers. Do you happen to know whether it was her practice to keep any?
A. I don't know. I've seen what you've seen, and as you've said, there are a number of emails, there are the two briefings to me and to Lord Goldsmith, there's an email to me, there are some records of meetings and so on and so forth, but not a great amount of notes, I accept that.
Q. Do you have a view as to the acceptability of that?
A. I think that it's good practice, which ought to be followed, for lawyers to make notes of important decisions and important stages of cases, not least because if there has to be an inquiry later into what happened, those notes can prove to be of great assistance. So I think it's good practice to keep records of the progress of a case, and particularly of important decisions that are taken during the course of a case.
Q. A different core participant has asked me to put this general question, that especially given this was a difficult and sensitive prosecution, would you agree that there should have been greater oversight of Carmen Dowd or not?
A. Well, Carmen Dowd was, as I said, one of the four or five most senior prosecutors in the CPS. When I recused myself from the cash for honours case because I'd been in chambers with the then Prime Minister's wife, the person I nominated to conduct the case was Carmen Dowd. She was an extremely senior and experienced prosecutor of sensitive crime and she was being advised by one of the outstanding silks at the criminal bar, and I for my part then and still regard the process in that sense as having been entirely adequate and appropriate. MR JAY Thank you very much Lord MacDonald. LORD JUSTICE LEVESON Lord MacDonald, thank you very much. MR JAY May we take a short pause? LORD JUSTICE LEVESON Yes, we'll have a second break this morning because we started early. (12.10 pm) (A short break) (12.17 pm) LORD JUSTICE LEVESON There's no need for you to be sworn in. MR KEIR STARMER (recalled) Questions by MR JAY MR JAY Your second witness statement dated 27 March runs to 63 pages. Is this your formal evidence to the Inquiry?
A. It is. LORD JUSTICE LEVESON Again I thank you and, reading between the lines, Alison Levitt, for the work that was put into this. MR JAY Mr Starmer, we're going to take up the chronology as from 9 July 2009, because we've had evidence in relation to Operation Caryatid which it's not necessary for us to travel over through you. You explain how the statement was in part prepared with the assistance of Ms Levitt. You made it clear that Ms Dowd left the CPS before 2009; is that correct?
A. That's right, yes. In fact, before I became the DPP so I've never worked with her.
Q. Can you explain the role of Mr Simon Clements, please, paragraph 17 of your statement?
A. Simon Clements succeeded Carmen Dowd as head of the special crimes division and when this case was first brought to my attention, which was on 8 and 9 July 2009, I quickly ascertained that the person who had previously dealt with the case was no longer a member of the CPS staff. That obviously presented difficulty because usually when there are enquiries about a case which is no longer a live case, the first port of call would be to the lawyer who dealt with it. I therefore had to appoint somebody else to assist with any questions that were being asked of the Crown Prosecution Service. I appointed Simon Clements, then head of special crimes division, on the basis that he was best placed to help.
Q. Thank you. Your involvement began, paragraph 24 of your statement, our page 18115, in the evening of 8 July 2009, which was when the Guardian article went online; is that correct?
A. Yes. As you know, the case had ended in convictions and sentence in 2007, and from my perspective, it hadn't featured in anything I'd had to look at since my appointment and 8 July 2009.
Q. In paragraph 26, page 18116, you say you were concerned by the statements made in the Guardian and you therefore held a meeting with a senior lawyer, that's Mr Husain, Mr Clements' deputy, and others, and you: asked them to conduct an examination of the material supplied to the CPS by the police three years ago so I could be satisfied that appropriate action had been taken at the time." So is one to infer from that that you were concerned with whether appropriate action had been taken by the CPS rather than by the police?
A. Yes. My concern was really in relation to what had been reported in the Guardian, that was namely how the Crown Prosecution Service had taken a decision not to take News Group executives to court. That was the issue that I was concerned about. I wasn't able to deal with it straight away because I didn't know anything about the case, Carmen Dowd had left and I wanted to satisfy myself that we had taken appropriate decisions on the evidence available to us at the time, and that's the exercise that I asked to be commenced on 9 July 2009.
Q. On 9 July there was a massive flurry of activity, some of which required close to instantaneous responses by you. You cover this in paragraph 27 and following. First of all, there was an urgent question tabled by Dr Evan Harris MP which covered the CPS as much as the police, and the Home Secretary was going to have to answer that question within I think 43 minutes. So that required, as I said, an almost instantaneous response.
A. Yes.
Q. Then there was a request for an interview by Mr David Leigh, who again was travelling over salient ground which related to the CPS, not the police action; is that right?
A. Yes.
Q. Did you respond to his bid for an interview?
A. No, I didn't. The Guardian had obviously been working on this for some time and this story broke in the evening of 8 July and in the paper press on 9 July 2009. As I say, I'd never really had cause to look at it. I knew generally what had gone on in 2007, I'd never looked at the papers, never had cause to think about it. During the morning of 9 July, there was a huge flurry of activity because, as you say, we were being asked to deal with all sorts of queries and to provide information, which was difficult in the circumstances. I was then asked, or I should say David Leigh asked of the organisation some quite specific questions and I was clearly not in a position to begin to deal with them, so therefore I declined to do so. LORD JUSTICE LEVESON Is there a risk that the pace of this sort of inquiry will lead to difficulties later on down the track and therefore there ought to be a greater understanding of the need for caution before responding?
A. Yes, I think that's right. Had I attempted to answer these questions based on what then would have been very, very limited information, I think there would have been a great risk that further information might shed further light and the initial answers would be seen to be wrong or not full, and therefore what I didn't want to do was to answer questions until I at least had an appreciation myself of what actually happened in 2006 and 2007. I didn't even have that. I didn't have the next best thing, which was the lawyer who dealt with it to call in for an urgent meeting and to walk me through the process. So I wasn't inclined to answer those questions at that time for that very reason. MR JAY Paragraph 33 next, Mr Starmer, page 18118. Mr Husain had indicated he had: made contact with DCI Keith Surtees and had asked him to send an email setting out 'the approach taken by the prosecution team when the matter was originally brought to our attention'." Your comment on that is this: "This began a history of reliance on what the MPS told us about the events of 2006-7." Can I seek to break that down. At least as regards what was happening within the CPS, although there were difficulties with the departure of Carmen Dowd, there was at least a documentary record base of the decisions the CPS had made, but you were reliant on what the MPS were telling you about their decision-making, is that fair?
A. Exactly. We had limited documentation on the premises and a record of any decisions we may have made. As for the wider documentation, the approach taken by the police and all their records events, we relied on them.
Q. Thank you. You think it's about 3.30 in the afternoon that AC Yates made his press statement. We've seen the press statement, it's under your tab 22. I just wonder where you got the time from because Mr Yates put it later on that afternoon, maybe closer to 5.00 or 5.30.
A. I don't know now where I got that time from. If Mr Yates says it was later in the day, then I wouldn't quarrel with that. I think probably to get this statement we must have seen something which suggested it was 3.30, but if that's wrong, it might have been slightly later in the afternoon. The point I was making about it in paragraph 34 is that I didn't at that stage know that he was going to make a statement, nor did I know that he had carried out a review of the material.
Q. He would emphasise that he was establishing the facts around his inquiry rather than carrying out a review, it would seem.
A. I understand.
Q. I'm not going to ask you to comment on what his statement says, we can draw our own conclusions about it.
A. Save that what I said in paragraph 38 is important. What he said was some of the first information I was receiving about this case, and given his position at the time, I have to say I took it pretty much at face value in building up the picture.
Q. You had no reason to doubt what he was saying, that must be right. Just a small point on the last sentence of paragraph 38 where you say: "It was only much later that I came to know of the short time Mr Yates had spent considering the case." Didn't you draw the inference at the time that Mr Yates was responding to the Guardian article, which after all had only just seen the light of day, and he in his statement himself said, "I've been asked by the Commissioner today to establish the facts", so what he was doing was an exercise which was completed within one day. Isn't that fair?
A. I think that's fair, looking at the statement, and I accept that. At the time, it was a very busy day, I didn't pick that up at the time and I didn't appreciate at the time that whatever Mr Yates looked at, he completed the exercise in a day. I know that some months later I think he gave evidence to a Select Committee making that even clearer. I have to confess I didn't pick that up at the time. It was only later that I appreciated the entire exercise had been done in the short time that it had. But I accept it's there on the face of the document where he says I did it today.
Q. You say in paragraph 39 that Mr Yates made no reference to the investigation having been curtailed or otherwise circumscribed by advice on the law given by the CPS, which is correct, that's not indicated by his statement. But I think that point we may go back to it, but we've covered it largely to the extent we need to. You issued your own statement, which is at tab 33, that evening. LORD JUSTICE LEVESON 23.
A. 23. MR JAY Yes, tab 23. Did I give a wrong tab? All right, tab 23. It was obviously based on the limited data you had available: no reason to consider there was anything inappropriate in the prosecutions undertaken in this case. In the light of the fresh allegations that have been made, some preliminary inquiries have been undertaken. I have now ordered an urgent examination of the material that was supplied to the CPS by the police three years ago. I am taking this action to satisfy myself and assure the public that the appropriate actions were taken in relation to that material." A number of points on that, Mr Starmer. You're confining it to the material supplied to the CPS by the police three years ago, so are you excluding from account all of the unused material?
A. I was, and that was deliberate. It's always difficult when there are questions about a case which is no longer live to decide how to answer those questions. One would be to call for all material generated in the course of the full investigation and require it to be reviewed from start to finish. That would be an extremely long exercise. The other is to look at the possession the material in the possession of the CPS and check the decision that the CPS made. That was my real concern. I wasn't my responsibility was to ensure that on the material that was provided to us that we made the right decisions, and that's what I wanted to be assured about, so I limited the exercise to the material we had and the decision that we made as the Crown Prosecution Service.
Q. Whatever material had been supplied in relation to counts 16 to 20, which were the calculations of those outside the Royal household, that material was within the contemplation of your press statement, wasn't it?
A. That was, yes.
Q. Can I ask you, it may be implicit, your reaction to the Guardian article, it might be said it's only one article. Why did you take it or appear to take it so seriously?
A. Well, it was only one article. It was quite an important issue that we had deliberately taken the decision not to bring a case against an executive at the News of the World. And the number and seriousness of the requests that were coming in thick and fast on 9 July 2009 persuaded me that this was something I really needed to understand and to be reassured about what had happened. And I needed to reconstruct the picture from the CPS point of view as quickly as possible. And so it was really the Guardian article that started the process and my thinking, but it was very rapidly followed by very many requests for more information, either from the press or from official sources. So it was really all of that taken together that in the course of 9 July persuaded me that I needed to reconstruct the picture and to do it pretty rapidly. LORD JUSTICE LEVESON It's not just the press article, but particularly the political overtones, questions in the House and all this sort of thing.
A. Yes, and I think I'd understood that Lord West was going to be making a statement later that day on behalf of the whole government. We were being asked to contribute to that. I was finding it difficult to do so because I didn't have any knowledge, I didn't have the person who dealt with it, we were getting the material as quickly as we could, but when something is being treated as seriously as that, across government, it was obvious to me that I needed myself to get a much better picture.
Q. Can I ask you about paragraph 43. You say: "On reflection I could have been clearer with my team than I was. They (thinking that I was most concerned about the advice which the CPS had given to the police at the time) concentrated on the correspondence between the CPS and the police at the time and did not examine the entirety of the material in the possession of the CPS, which included witness statements and exhibits However, I am satisfied that this misunderstanding made no material difference and the conclusions of the examination I had called for would have been the same." Why do you say that, that it made no material difference?
A. Because the question I was essentially focusing on was on the material available to the CPS at the time were appropriate decisions taken in relation to the prosecution in 2006 and 2007, and there's nothing in the material that was then held on the premises of the CPS that would have affected my review in July 2009. I should say this: by then, I had my team had drawn on David Perry's recollection and I had seen the note that he produced on 14 July about his recollection of the conference back in August 2006, so by then I was drawing on not only the material that we had on the premises, but also the help and assistance that David Perry and Louis Mably were giving us.
Q. The
A. I should perhaps add this, if it's not clear: the material we held on the premises at the CPS was a fraction of the material that had been collected in the investigation, and to give that some flavour, on the premises of the CPS, so far as I'm aware, there were probably about 40 extracts from the Mulcaire diary. The other whatever it is, 10,960 pages were never on our premises and were part of the unused material, and therefore what we had was a fraction of a much bigger picture. LORD JUSTICE LEVESON Could I unpick your answer in two ways, Mr Starmer? The first is what you were really concerned about was: have we given advice that somebody shouldn't be prosecuted which is now being challenged?
A. Yes. LORD JUSTICE LEVESON That's not infrequent, happens. You're asked for an advice and you give it.
A. Yes. LORD JUSTICE LEVESON So that would be all available within the papers that you held?
A. Yes. LORD JUSTICE LEVESON The second question is sorry, in relation to the first question, that's the four corners of what you were asking your team to do: have we done the job we were asked to do properly?
A. Yes. That was essentially what I wanted to know. LORD JUSTICE LEVESON The second question flows from the assurance that you received from Mr Perry, because I would be grateful for your comment upon the extent to which you should be relying upon leading counsel, very experienced and capable though he is, recollecting back three years without the benefit of papers on issues which might become quite sensitive.
A. Well, ideally that wouldn't be the position. My own view from working, because we had to work swiftly on this, was that in the absence of Carmen Dowd, and from recollection we tried to contact Carmen Dowd we were successful on one or two occasions but we didn't have open access to her the next best way of approaching this was to involve counsel instructed at the time, the only other people available who could help reconstruct the picture. I do accept that that isn't an ideal situation and I do accept that that on occasion put counsel in a rather difficult position, because they were being asked to recollect things which were then two or three years old, and they hadn't had provided to them all the papers that they'd had provided at the time. So far as David Perry's recollection of the August 2006 conference is concerned, however, that is something which he put in his note of 14 July 2009. It's something that only a few days later, I think on 17 July, I personally discussed with him, because as soon as I as soon as the Neville email was brought to my attention, I had a conversation with him, particularly about what he'd been told in 2006. So in that respect, that was a face-to-face discussion with David Perry, and the way he discussed it with me gave me the clear impression that he did actually remember that part of the conference, whether he had his notes or not. MR JAY We'll come to that, but on 10 July junior counsel was involved in a meeting at the old offices of the CPS. This is tab 25, page 18299.
A. Yes.
Q. It's fairly clear that only limited documentation was available, although a draft chronology was prepared. Mr Mably gave some explanation about the charges and how they evolved. We can see from clause 2.7, page 18200, halfway down that paragraph: "Junior counsel Louis Mably recollected that the situation changed after the search on Glenn Mulcaire's premises. He also added that the original charges only reflected a small number of calls and Glenn Mulcaire was involved in the celebrity aspect of the case [well, that's what became counts 16 to 20] whilst Goodman was not." Then he explained that the indictment included five additional counts and that the guilty plea is at 2.11.
A. Yes.
Q. The extent to which you were still reliant on the police seems to come through the conclusion, paragraph 6, page 18301: "Simon told the meeting that hopefully by next week the police would have submitted their report and we will be in a position to deliver a briefing to [you] which is diligent, accurate and swift. The meeting was then concluded." So one does draw the inference that what the police were telling you at least factually was going to inform the briefing that would come up to you in due course?
A. Yes.
Q. The story then moves on paragraph 49 of your statement.
A. Yes.
Q. 18122. The Home Secretary asked for the terms of reference of your review and you decided that they should be articulated thus: "Whether the CPS gave any advice to the police at the investigative stage " I think that should be 2006?
A. It should be.
Q. "(And if so, what?) What information was passed to the CPS to consider prosecution and who was considered. The strategy. Whether any of those now alleging that their cases were not considered for prosecution were in fact considered Again that should be in 2006, and reasons for that. You were now coming under pressure from the highest level, really. You say in paragraph 50: "It is fair to say at the time that Simon Clements was under some pressure to complete his task." Is it right to say that there were two background difficulties here: first, your reliance on the police to provide you with factual evidence, and secondly, the background consideration that the Home Secretary wanted your response as soon as possible?
A. Yes.
Q. 14 July now, paragraph 51: "Nick Davies gave evidence to the CMS committee. As part of his evidence he presented the committee with copies of a number of documents, which included what has come to be known as the 'for Neville' email and the contract between Mulcaire and [someone else at News of the World] which related to the payment of a bonus for the Gordon Taylor story." Presumably those came immediately to your attention, or those matters came immediately to your attention?
A. They didn't come immediately to my attention. I was waiting for the report that I would get later that week. And, as you will see, one of the issues when I issued the results of my examination was a query from the Guardian as to whether or not the "for Neville" email had been considered. It is wasn't brought to my attention at that stage. I hadn't seen the "for Neville" email.
Q. We'll come to that in a moment. On the same day you had David Perry's note or the joint note from counsel, 14 July.
A. Yes.
Q. We've seen it earlier on today. You say at the bottom of this page: "As far as this aspect of their collective memory is concerned, Mr Perry personally emphasised to me (in 2009, see below) that he had a firm recollection of asking these questions." Taking the story forward three days, that was on 17 July?
A. That was on 17 July. I mean, the reason that was of importance is because the issue that had first concerned me was the suggestion that the CPS had not prosecuted an executive from the News of the World, in other words, some deliberate decision had been taken not to prosecute an executive, impliedly notwithstanding evidence that the CPS had. So David Perry's recollection of that conference was obviously important to the concern I had at the time, but it was three days later that he and I had a face-to-face conversation about that conference back in 2006.
Q. Thank you. On 14 July as well there's an email from Mr Williams, tab 29 of your bundle, page 18305. He sets out the position at the conference on 23 August although he has the wrong year in the email, that doesn't matter as to how the five or six victims would be selected.
A. Yes.
Q. And I think it's fair to say that what Mr Williams says there is wholly consistent with the evidence we've heard from Mr Perry this morning.
A. I think that's right.
Q. There was a later email from Mr Williams the following day, 15 July.
A. Is that the next tab?
Q. Yes, it's tab 30. Again you were heavily reliant on what he was telling your department in terms of the factual position?
A. Yes.
Q. He refers to the conference on 21 August again, and then the last paragraph: "At this stage Mulcaire and Goodman had been arrested and charged in terms of the main royal victims. The conference was now considering what we had considered as a consequence of the arrests and how it affected the way forward, within which, of course, there was consideration as to what other potential victims did we have. I'm deliberately using the term potential victims as I feel it's important to understand the we all recognise that proving that someone was the victim of interception is extremely challenging, if for no other reason than to varying degrees the airtime providers' software was never designed to be used to prove such activity in court." And then he refers to what happened subsequently and I paraphrase: there were issues concerning parties' willingness to be witnesses, but eventually came up with, as we know, five additional counts.
A. Yes.
Q. It isn't explicit that the reference to this being extremely challenging wasn't necessarily predicated on a narrow interpretation of sections 1 and 2 in RIPA, it might have been more general observation, but he's not expressing a view of the law there, which he was given by anyone, is he?
A. No, he's not. I think in fairness the fact that the police were trying to get evidence to show whether or not the message had been listened to before it was intercepted shows that they thought that for part of the case that was something they might need to show.
Q. Yes. I'm not going to ask you what he says about victims but what Mr Williams said about other defendants may be relevant on the next page, 18308, four lines down, in relation to whether or not anyone else was involved: "As part of this same conference and considering what we had discovered we actually commented that we were open to the potential for there to be other defendants and in fact part of our discussion was around the merits of getting a production order to see if it would reveal more to help our understanding." Well, I can probably stop there. That can be read a number of ways. It's certainly consistent with Mr Perry being told that there was no other evidence at the moment relating to other defendants but a production order may reveal the existence of such evidence, which may be the better interpretation, or it could be interpreted on the basis that there was discussion around there being some circumstantial or inadequate evidence at the moment, and the production order may beef up the position?
A. I'm not sure I am able to comment one way or the other. When I was looking at this in 2009, I was interested in the questions that Mr Perry had asked at that conference for obvious reasons, but I had understood his note to the CPS of 14 July 2009 to mean that he had never, David Perry, during the course of the prosecution, seen evidence implicating others, because it wouldn't necessarily have helped me to know that on 21 August 2006 there wasn't such evidence, but it arrived two weeks later. So I was concerned I mean, I was interested in the fact in the dates, and that he had asked those questions, but I was more concerned with whether that evidence had ever been seen by him in the period 2006/2007 at all, in whatever capacity, because obviously other counts were the indictment hadn't been drawn up at that stage, counts were later added to the original indictment and more material would have been supplied to him for that exercise. So I really can't comment on this passage, but my understanding was that David Perry hadn't then or subsequently seen evidence implicating others.
Q. At any stage did this pass through your mind, Mr Starmer, that if one looks at counts 16 to 20, the non-Royal victims, evidence was clearly provided to the CPS and counsel by the police in relation to those matters. You mentioned 40 pages from the Mulcaire notebook, so those pages may have been related to those charges.
A. Yes.
Q. It could be said, well, if you look very carefully at that material, or perhaps not so carefully, you could see, well, the corner names relate to other first names than Clive Goodman, by implication this must be others at News International, and you put the story together, you're coming fairly quickly to the conclusion that there must have been others at News International who were being at least potentially implicated and whose existence therefore was known to the CPS.
A. I've never gone through that exercise myself, and that question I think was put to David Perry this morning and he gave his answer. I was, rightly or wrongly, relying on what Mr Perry was telling me in 2009 that he had seen and what he concluded from what he had seen. To be honest, if leading counsel says to me, "I did not see material that implicated others", it's highly unlikely that I'm going to say, "I think I will now look at material myself to double-check what you've just told me. LORD JUSTICE LEVESON There's no point at all in looking over the same material provided he has been asked to do that particular exercise.
A. Exactly. He'd been asked and told me in 2009 what his conclusion was and I had no reason really to go back and double-check what he'd told me. MR JAY That must be right, Mr Starmer. The only issue might be with the reliability of Mr Perry's memory in 2009, being asked to throw his mind back to the fine detail of a quite complicated case and remember: what exactly was I shown in relation to any particular issue or particularly an issue which didn't feature very starkly, given there were quite early guilty pleas.
A. No, no, I accept that. I was asking David Perry to work quickly with us to try and re-establish the picture. He did that to the very best of his ability, I'm grateful to him for having done that. We were under considerable time pressure for the reasons that are obvious in my statement. LORD JUSTICE LEVESON But the classic part about all this is the exercise that you were undertaking, which was to review what the CPS had done, not what the overall position was.
A. Precisely. MR JAY You were provided with a draft submission, this is under tab 31.
A. Yes.
Q. Including a draft press statement and a helpful chronology, which sets out the position in some detail. I don't think it's necessary to dwell on that, but
A. Well, other than I'm sorry, you may be coming to this, the review itself? What I was what I noted was in paragraph 3, as I understood it
Q. It's 18280. The last sentence there.
A. Well, it's not just that, it's paragraph 3. This is what I was being told as a result of my examination. My concern was it was being suggested that there had been another suspect and we the CPS had taken a decision not to pursue that suspect for whatever reason and I'm being told: "No other suspects were considered or charged. This has been confirmed to Asker Husain [that's the person who was dealing with it in 2009 on my behalf] by DCI Surtees: 'no other named subjects [apart from the three named individuals] were identified as suspects of criminal activity through this investigation'." That I understood to be a quote of what had been said to Asker Husain by the police in 2009. "Prosecution counsel has also confirmed that the police informed them that there were no other suspects " apart from those three. So on the issue I was most concerned about, this is what I was being told. Counsel says at the time there weren't any other, it's been confirmed to us, as I understood it, in July 2009 that that was the position. That obviously gave me an answer to the concern that I had.
Q. The press statement which went out on 16 July, under tab 35, if you go to page 18294, we can see at the bottom of that page what you said about other suspects.
A. Is that the third page of the under "Findings"?
Q. It is indeed.
A. Yes, I see that.
Q. You can see what you said: "Having examined the material that was supplied to the CPS by the police in this case, I can confirm that no victims or suspects other than those referred to above were identified to the Crown Prosecution Service at the time. I am not in a position to say whether the police had any information on any other victims or suspects that was not passed to the CPS." So that was appropriately cautious. I've been asked to put to you this point by the MPS, really: given that the police had not provided you with all relevant information, why didn't you seek it from them?
A. Because I was not concerned with whether the police had taken appropriate decisions on the material available to them. I was concerned with whether the CPS had taken the appropriate decisions on the material supplied to the CPS. It really wouldn't have been appropriate for me to say I'm going to investigate material the police have to consider whether they took appropriate decisions. I was focusing on my organisation and the decisions taken in 2006 by the CPS.
Q. Yes, I understand that. We're going to move on now to the two documents we referred to about five minutes ago, but it may be convenient LORD JUSTICE LEVESON Fine, 2 o'clock if that's all right. Thank you very much. (1.00 pm)

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Witnesses

Lord MacDonald QC of River Glaven

Politician

Gave a statement at the hearing on 04 April 2012 (AM) ; and submitted 1 pieces of evidence

Ken MacDonald was a former Director of Public Prosecutions of England and Wales and head of the Crown Prosecution Service. He was previously a Recorder (part-time judge) and defence barrister. A Liberal Democrat life peer, he gave evidence on the early Metropolitan Police investigation into phone-hacking.

David Perry QC

Government

Gave a statement at the hearing on 04 April 2012 (AM) ; and submitted 1 pieces of evidence

Senior English criminal barrister. Gave evidence to the Inquiry explaining his role in the prosecution in 2006-07 of Glenn Mulcaire and Clive Goodman, who were subsequently sentenced for offences related to the interception of voice messages, including of members of the Royal Household. Perry also advised the Government on the “cash-for-honours” scandal.

Sir Keir Starmer QC

Government

Gave statements at the hearings on 08 February 2012 (PM) 04 April 2012 (AM) and 04 April 2012 (PM) ; and submitted 7 pieces of evidence

Director of Public Prosecutions at the time of giving evidence. He answered questions on DPP investigations into phone hacking which had resulted in the trial and prison sentences of Glenn Mulcaire and Clive Goodman. Starmer told the Inquiry that by 2011, after more press revelations from victims such as Sienna Miller and press stories about phone hacking (including in the New York Times) he knew there had to be a full review of all the material available. Starmer said that he had met with Assistant Commissioner John Yates to tell him that. Starmer became Labour MP for Holborn and St Pancras in 2015 and was appointed Shadow Secretary of State for Exiting the European Union. He was made Knight Commander of the Order of the Bath (KCB) in 2014 and sworn in as a Privy Councillor on 19 July 2017.

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Morning Hearing on 04 April 2012

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