The press defended private investigators (“PIs”) from regulation, then turned around and asked why they hadn’t been regulated. As an example, of the latter, on 25 July 2013 Tom Harper wrote in the Independent:
“The revelation that firms from two of this country’s biggest industries may have commissioned corrupt PIs – without facing prosecution – will fuel concerns that corporations potentially involved in the unlawful trade in private information have so far escaped proper investigation”
This is one example of a rising volume of consternation in parts of the press about why non-media companies that used private investigators – who have been found to have acted illegally – were not pursued and prosecuted by the authorities.
What none of the reports to date have explored is why many of these cases were not pursued in 2007/08. Instead they have given the impression that the press was unfairly singled out.
In fact, many of these cases were not pursued in 2007/08 because the press prevented it. It did this by campaigning aggressively and successfully to block the increase of sanctions for this type of crime. Without such an increase it was, the Information Commissioner said, almost impossible to justify the pursuit and prosecution of the culprits, let alone their clients.
To see what happened one has to go back to 2006 and the publication of a report by the Information Commissioner. It was evidence from this report, and other police operations, on which the 2008 SOCA report was based. This is the same SOCA report that has been the focus of so much current attention.
This 2006 report, What Price Privacy?, outlined the scale of the illegal trade in personal information, citing the industrial scale blagging being done on behalf of newspapers, but making clear that the trade was certainly not restricted to the media.
As well as journalists, the report said, illegal information gathering “involved finance companies and local authorities wishing to trace debtors; estranged couples seeking details of their partner’s whereabouts or finances; and criminals intent on fraud or witness or juror intimidation”.
The report contained a short section on each these non-media clients, and even specified the amount being spent by some non-media clients:
“Documents seized from the tracing agent working for finance houses and local councils revealed that one agent was invoicing for up to £120,000 per month of positive tracing.”
The problem, the ICO said, was that even if it pursued and prosecuted the private investigators guilty of gathering and selling this information then “those apprehended and convicted by the courts often face derisory penalties”.
These penalties – often only £100 or £150 fines – did not act as a deterrent and did not justify the police, ICO and prosecution time to pursue.
The chief recommendation of the 2006 report was, therefore, that sanctions should be increased so that they would act as a deterrent. At the same time it would make it more justified for the authorities to pursue cases and prosecute the private investigators and their clients.
“The Information Commissioner calls on the Lord Chancellor,” What Price Privacy? said, “to bring forward proposals to raise the penalty for persons convicted on indictment of section 55 offences to a maximum two years’ imprisonment, or a fine, or both; and for summary convictions, to a maximum six months’ imprisonment, or a fine, or both”
But when the report was published, the media, rather than focus on the private investigators, the insurance companies or other clients, focused almost exclusively on the potential effect of the increase of sanctions on the media.
In the second report the ICO published in 2006 (What Price Privacy Now?) the Information Commissioner remarked on the media’s response and again stressed that, despite the media’s concerns, the problem went much wider than the press:
“Some of the press coverage since the report has highlighted the intrusion into the lives of high profile public figures by the media but it should not be forgotten that this trade also affects the lives of people not in the public eye and is very often unrelated to media activity.”
The Commissioner’s efforts were in vain as the press continued to focus, for the following 18 months, almost entirely on the implications of the ICO’s recommendations for the press, and began a campaign to prevent the increase of sanctions.
Leveson describes the consequences of the ICO reports and recommendations:
“The first was the mobilisation of a political lobbying effort by the press against the campaign [of the ICO for increased sanctions], directed to the heart of government. The second was the hardening of the attitude of the press (now unmistakably represented by the PCC) towards the ICO.” p.1024, Vol.3
Two of leaders of the press campaign, according to the Leveson report, were Murdoch McClellan (then Chief Executive of the Telegraph Group) and Guy Black (also at the Telegraph Group).
In the summer of 2007 the editor of the Daily Mail (Paul Dacre), Murdoch McClellan of the Telegraph and the Les Hinton of News International had dinner with the Prime Minister, Gordon Brown, to persuade him to help them stop the increase in sanction going through.
The campaign stepped up its efforts through early 2008 with some media interests “lobbying the Conservatives heavily in favour of removal” of the amendment to the law to increase the sanction (quote from the Information Commissioner, 25 March 2008).
Leveson was scathing about the objectives of this campaign:
‘The argument that the prospect of custody would have a differential “chilling” effect on lawful and ethical journalism from the prospect of a financial penalty is one which it is barely respectable for national press organisations to advance at all. Its necessary implication is that the prospect of a criminal conviction can, of itself, be regarded as a tolerable business risk, and a criminal fine a tolerable overhead, in journalism. This says little more than that “unchilled” journalism is an activity which takes calculated risks with deliberate and indefensible criminality. This is an argument for criminal impunity including (as it was put before the Inquiry) by way of a plea for indemnity from the otherwise universal application of criminal penalties; it amounts to special pleading to be placed above the law.’ p.1091, Vol.3
Yet the press campaign was successful. Even though the amendments were drafted in section 77 of the Criminal Justice and Immigration Act, they were never commenced. They have still not commenced.
As a consequence, the authority responsible for pursuing cases of blagging and related offences – the ICO, continued to be severely constrained in the action it could take.
Certain news organisations, in other words, effectively prevented the pursuit of organisations that were illegally acquiring personal information in 2007/08 and onwards. These same news organisations are now claiming the failure to pursue these organisations is evidence of an unfair singling out of the press through the Leveson Inquiry.
Martin Moore is Director of the Media Standards Trust.
This piece was first published by The Staggers, the New Statesman’s rolling politics blog, and is reproduced with the author’s kind permission.