Phone tap scandal: State of play

The Met refuse to investigate, but others have taken on the task. What happens now, and where will the scandal leave the British media?

By Ian Dunt

What’s the story?

In January 2007, Andy Coulson, then editor of the News of the World, resigned from his position after it transpired that a journalist working for him had used a private investigator to hack into the phone messages of aides to the royal family. The paper’s royal editor, Clive Goodman, and a private investigator, Glenn Mulcaire, both went to prison. Coulson later became David Cameron’s director of communications, which caused a minor stir, but nothing substantial. And that was the end of that.

Then late on Wednesday evening, the Guardian newspaper blew everything wide open. Gordon Taylor, chief executive of the Professional Footballers Association, had sued the News of the World for intercepting messages on his mobile. They settled but with the condition that he sign a gagging clause forbidding discussion of the case, the Guardian found. It claims that case was just one of many, and that Rupert Murdoch’s News Group Newspapers have paid out over £1 million on the issue.

The scale of the allegations is genuinely staggering. Public figures from every conceivable walk of life are involved. Manchester United manager Sir Alex Fergeson and Newcastle United manager Alan Shearer from the world of football. Deputy prime minister John Prescott and London mayor Boris Johnson from the world of politics. PR guru Max Clifford and actress Gwyneth Paltrow from the world of celebrity. The list of allegations goes on and on and on.

What’s the Met doing?

Deputy commissioner John Yates stepped out of Scotland Yard yesterday, hours after he had a look at the original case. He was quick to say there would be no further investigations, because no new actual evidence had come to light. This was expected, although there’s a slim chance the Independent Police Complaints Commission (IPCC) could step in to have a look at the original case, and ask why so many avenues of inquiry had not been pursued.

Mr Yates said that there was insufficient evidence in the majority of cases that phone tapping had been conducted. That’s the case in criminal law, where the evidence needs to be beyond reasonable doubt. In civil cases, where the case appears to have instantly dissipated, the standard is far lower, requiring only a balance of probability.

What exactly is the law?

Contrary to popular belief there is no public interest defence to tapping a phone or hacking into someone’s messages. No one is legally entitled to do either of these activists in any situation unless they are with the police or security services and have a warrant from the secretary of state. The law was put in place through the highly controversial Regulation of Investigatory Powers Act (Ripa) – the same piece of legislation which triggered a torrent of local council spying for trivial offences like fly-tipping. It did have several more positive effects, however, in which it tried to clarify the activities of the secret state, get them on the statute book, and ensure they complied with the European Convention on Human Rights.

Much of the News of the World controversy, however, is based on illegal access to non-phone information, such as medical or bank records. This comes under the Data Protection Act 1998, section 55, although the offence is only punishable by a fine. Unlike Ripa, it carries a public interest defence.

Why won’t the Met investigate?

The first answer is the same one Yates supplied yesterday: they have no further evidence to that supplied during the previous investigation. This begs the question of why the Guardian won’t give it to them. The presumption in Fleet Street is that it would reveal a source. The journalist who secured the scoop is called Nick Davies. Previously famous for the excellent Flat Earth News, which picked apart the news industry to show it was failing in its role to provide the public with the truth, he is fast gaining a reputation as the man to go to if you wish to dish the dirt on other journalists – usually a big no-no in British journalism. He claims to have every bit of evidence necessary to prove the story. But just because he can rely on evidence doesn’t mean the evidence wouldn’t reveal the source. This assumption is particularly convincing when you imagine the benefits to the Guardian of having a police investigation carry the story forward.

But many commentators are put off by the speed with which the Met decided against any further investigation. As Lib Dem home affairs spokesman Chris Huhne put it: “This was a suspiciously quick review of what Mr Yates himself describes as a complex case.” The suspicion being that the Met would avoid fuelling the story if there was any way out of it. Why? Well, the discovery that a closed case in fact extended throughout Britain’s public figures, and that it took a hack to reveal something police investigators should have found out themselves is a further blow to public confidence in an already beleaguered police force. The Met can’t take much more controversy, having already piled up Jean Charles de Menezes, the resignation of Sir Ian Blair, the G20 policing controversy – which is still being investigated by the IPCC – racial complaints over promotion, the resignation of Bob Quick after he revealed top secret documents and a host of failed terrorist investigations.

So that’s it?

Not at all. News Group looks like it’s about to face a tidal wave of civil cases. It’s an enormous company, with plenty of reserve cash, but it has chosen to mess with some seriously wealthy people; people with well-paid lawyers, an obsessive interest in their privacy and a hatred for the tabloid press. The accumulated financial pay outs could devastate the company.

Then there are the other investigations. The culture, media and sport select committee is almost certainly going to reopen its inquiry, and they want Coulson to answer questions, along with his new bete noir, Davies. MPs on the committee won’t be pleased to discover they were played for fools, and will probably put him through the wringer. Select committees have no actual power, they can merely suggest things to government – hence all the noise during the election of a new Speaker on beefing them up. But a dramatic televised interrogation of Coulson could throw up all sorts of unpredictable scenarios. Committee witnesses are not under oath (other than those appearing in front of the standards and privileges committee). It is, however, considered a contempt of the House, although no legal repercussions necessarily follow from this, especially once you throw the murky parliamentary privileges convention over it. His trial would be by camera, not law.

Next on the list is the Press Complaints Commission (PCC). Eyes will be on it to get tough. When the information commissioner tried to get a more severe penalty to apply to breaches of the Data Protection Act, his attempts to get government on board were thwarted by a coalition of powerful newspaper groups. He then focused on getting the PCC to issue journalists a strongly worded warning telling them they could find themselves convicted in court, but it resisted him and issued guidance he described as “disappointing”. Funded by the newspaper industry, and still desperately trying to maintain the self-regulation of the press against politicians who are increasingly convinced the media is running out of control, the PCC investigation will be under pressure to talk tough – and act tough. The Commission suddenly has something to prove.

The third investigation, by the director of public prosecutions, Keir Starmer, could be the wildcard. Starmer wants to reassure himself, and the public, that “appropriate actions” were taken over the material provided to the Crown Prosecution Service (CPS) by the police during the original investigation. If it comes out negative, the Met could find itself severely damaged.

Who loses?

Possibly everyone. If the Guardian allegations are somehow found to be unsubstantiated, the paper would be a laughing stock, but that is highly unlikely. Newspapers tend not to carry stories with this level of implication – especially ones aimed at colleagues – unless they’re very sure of what they’re doing.

Assuming the evidence is safe, the fallout could be huge. News Group could find itself financially devastated after scores of very expensive law suits. The Met could be found to have been incompetent in its investigation by Starmer, which would make an already traumatic period for the police force even worse. They would be reduced to something akin to ridicule. The Tories may have to get rid of Coulson, either because he is shown to have known what was going on or because the pressure became too much. Already, journalists treat with scorn the suggestion that this could have been going on without the boss knowing. Hiring private investigators costs money, and the illegal acts are, according to Davies, freely marked in the accounts. It’s inconceivable an editor would be so unaware of what is going on in his office. A few more days of this, and Cameron won’t be able to avoid the comparison with Labour spin doctor Damian McBride any longer. He would be tainted with the ‘ugly politics’ brush, and Coulson will be out the door.

But the real losers could be the media in general, who would be tarred with the same brush as the News of the World – despite the fact the media broke the story. With parliament still held in disgrace, there is a fear the fourth estate is about to have its own expenses scandal. The pillars of society would suddenly be falling down one by one. It might not be a pretty sight.