Monday, 19 August 2013

Met And Murdoch - Covert Deals And Registered Concerns

The latest from my regular contributor.

Home Affairs Select Committee, 19 July 2011, Witness: Siir Paul Stephenson, Commissioner of the Police of the Metropolis - 
Q763 Dr Huppert: The Evening Standard is reporting that the Neville whose name appeared in some of that information was a source, and was providing information to the Met— code name George, I think, source 281—and that in exchange he was given confidential information from the police national computer (PNC). If that is true, it raises even more concerns about what is happening to police information; are they giving it to journalists? 
Of course, Commissioner Stephenson knew nothing about what had been reported in the Standard and there were other things on his mind as he had just tendered his resignation. In any case, the question was slightly flawed as Neville Thurlbeck was not reported as an informant for the MET. But he was, as reported, a registered informant for the National Crime Intelligence Service (NCIS) which was the forerunner of SOCA (Serious Organised Crime Agency).  (Evening Standard here)

The Standard report suggested Thurlbeck's police informant activities date back to 1995 as "an unpaid employee of the National Criminal Intelligence Service, a liaison body between Scotland Yard's Special Branch and MI5." That relationship of collusion had been exposed by a failed 2000 prosecution which lacked evidence of money having changed hands - although prosecution under different charges may have delivered a different outcome.
Stephen Kramer QC, prosecuting, told jurors a substantial number of checks Det Con Farmer made on the Police National Computer bore no relation to any investigations on which he was working. Mr Kramer detailed 36 stories in the News of the World which he said contained information supplied by Det Con Farmer.
On acquittal Thurlbeck said:
When you deal with police officers in 2000, the currency is information not money ... The News of the World crime desk receives a huge amount of information about criminal activity - and the police have always been eager to tap into that resource. In return policemen give information to us. That is our most valuable currency. 
Justice McKinnon said the relationship between Thurlbeck and Farmer was a 'symbiotic one, information passed both ways'
Mr Thurlbeck undoubtedly supplied information to Mr Farmer which was of interest to the police. In return for which Mr Farmer provided to Mr Thurlbeck, not confidential or sensitive information, but information principally about criminals' previous convictions which he obtained from the Police National Computer. 
SAFEGUARDS, CHECKS AND BALANCES

It is startling that it doesn't sound like a formal arrangement, sanctioned and approved as registered informant for NCIS, it sounds more like a covert deal. If it were official, then 'George' no. 281 would probably never have been charged and prosecuted. Even back then it was best practice to draw up a memorandum of understanding for a formalised police informant agreement, allocated approved handler and controller, counter-signed by an authorising senior officer. Through these procedures, officers and informants are thus protected from allegations of over-cosiness, covert back channel deals - or inappropriate immunity. Technically, it would be possible for someone like 'George' to establish a non-approved, clandestine relationship with one law enforcement officer in NCIS or SOCA whilst maintaining useful 'insurance policy' registered informant status as 'no 281' with a different agency such as the MET.

Fortunately that possibility was foreseen in the establishment of NCIS
A NATIONAL index of several thousand registered police informants is being considered by chief constables to prevent 'grasses' and unscrupulous detectives abusing the system.
The index, which would become one of the most sensitive police databases, would be maintained by the National Criminal Intelligence Service, which is charged with gathering information on major criminals. The NCIS would give each informant a codename so their real identities would only be known to their police contacts and forces. But the central index would contain sufficient information for individuals to be recognised if there was any attempt to register them more than once, as well as details of payments and information supplied.
Setting aside any qualms about the threat to SOCA/NCIS itself of criminal infiltration of such sensitive data, at least the principle is clear and sets out the corruption risks for any journalist (or law enforcement agency) tempted to blur investigative roles for cash, kind, or mutual 'protection'.

BBC Newsnight (13/07/11) included a segment which claimed that blurred relationships could still find ways round to ease the two-way flow of information uninterrupted. Any unauthorised accessing of the Police National Computer (PNC) or other database (eg DVLA vehicle details) leaves an electronic trail which can be audited or dip-sampled. This was how Alex Owens of the Information Commissioner's Office was able to establish that sensitive 'protected numbers' had been targeted in Operation Motorman. Newsnight alleged that the MET had set up NOTW journalists as 'Confidential Informants' - protected intelligence sources. This would automatically take all activity outside standard electronic audit. If this Newsnight allegation has any substance, it should be noted that authorising 'Confidential Informant' status can only be done by accountable senior officers.

BLURRING THE DISTINCTIONS

It seems that News International were no strangers to blurring the lines. Take, for example, this 'Fake Sheikh' Mahzer Mahmood sting:
The News of the World defended its red mercury investigation - which today failed to secure the conviction of three men on terrorist-related charges - as 'thorough and legitimate'.
The tabloid also pointed to the police involvement in the story from an early stage. 'We are entirely satisfied that the methods used in the investigation were not only wholly proper, but were both authorised and, from an early stage, continued in close liaison with the police.' 
[Mahmood has history of blurring some distinctions such as the use of particular private investigators / ex-police officers as bodyguards. See here an illuminating 1999 report about his use of Two Heavies and Mr Smith.]

Mahmood told the Leveson Inquiry:
I had one meeting with the individuals who I was told wanted to buy the product and then passed the audio recording of my meeting to the anti-terrorisl squad. The police then signed me up as participating informant for that one investigation. The police determined all my actions when I worked with them. One other undercover police operative worked with rne and the police issued a statement confirming it was a proper investigation.
Interviewed in Press Gazette, he said
The entire job I was basically working for Scotland Yard's anti-terrorism squad. I was registered as a participating informant; every single movement I made was on their orders. Quite often, as it came out in court, I didn't agree with what they were doing, but I had to do it as I was working for them.' Mahmood argues that if the Crown Prosecution Service thought there was a case to be put forward and the Attorney General personally signed for that case to go ahead, it must have been a worthy case. 
The defendants were acquitted on July 25th 2006. Two weeks later, on August 8th 2006, NOTW's Clive Goodman and Glenn Mulcaire were arrested. MET Specialist Operations (Counter Terrorism) were commiting resources and collaborating with a protected NOTW journalist 'Participating Informant' investigation at the exact same time that MET Specialist Operations (Counter Terrorism) were investigating NOTW jeopardising national security by targeting the Royal Family?

Yes.

Peter Clarke (now SOCA Board member) headed MET Operation Caryatid into NOTW phone hacking. At the Leveson Inquiry, he escaped the criticism levelled at other senior ranks for giving or receiving of excessive hospitality from sections of the press. Having retired from the MET late 2008, he was though a little hazy on routine procedures for recording contacts with the press. He volunteered (Witness Statement, papra 25 here)
There were no mechanisms in place that I can now recall for recording meetings with the media, unless the meeting fell into another category - e.g. where hospitality was received or if a journalist was recorded as a registered informant.
That raises some concerns - how many more journalists were registered informants? Who? Why? Which senior officers authorised them? In exchange for what, exactly? Just how routine was this? However relevant these questions are to Hackgate, the answers will probably never be known as it is standard MET practice to neither confirm nor deny informants' use or identities.

WORKING THE ADVANTAGE

There are some variations in terminology to describe formalised police sources - registered, informant, participating informant, CHIS (Covert Human Intelligence Source), HumInt (Human Intelligence) and so on. For brief background and implications for evidence, see here)

What they all share is the potential for reduced sentences or even immunity from prosecution:
(1)If a specified prosecutor thinks that for the purposes of the investigation or prosecution of any offence it is appropriate to offer any person immunity from prosecution he may give the person a written notice under this subsection (an “immunity notice”).
(2)If a person is given an immunity notice, no proceedings for an offence of a description specified in the notice may be brought against that person in England and Wales or Northern Ireland except in circumstances specified in the notice. 
'Specified prosecutors' are strictly limited. as a safeguard, is not open to police alone to decide who may be granted immunity without referring up for authority to an external and extremely high level:
Each of the following is a specified prosecutor—
(a)the Director of Public Prosecutions;
(b)the Director of Revenue and Customs Prosecutions;
(c)the Director of the Serious Fraud Office;
(d)the Director of Public Prosecutions for Northern Ireland;
(e)a prosecutor designated for the purposes of this section by a prosecutor mentioned in paragraphs (a) to (d).
It is worth remembering there is court guidance too for reducing sentence on conviction for entering a prompt guilty plea. And those pleading guilty who turn 'Queen's Evidence' may also benefit from sentence reduction, even if not previously registered informants - they are known as 'assisting offenders'. A confidential rationale for sentence reduction for 'assistance' may be submitted to Crown Court but reduction is not automatic: "The choice of sentence is a matter for the court alone, not for agreement between the prosecution and defence."
Where a defendant's case is to be listed for consideration of a discounted sentence, due diligence must be exercised to ensure that proper levels of confidentiality are maintained, consistent with the normal requirement for open justice...This is particularly important where the judge is to be asked to exercise his or her power under section 73(4) not to disclose that the sentence is to be discounted.
CORPORATE CHARGES

The question of corporate charges has recently been occupying minds - see The Independent 'Met investigating Rupert Murdoch firm News International as 'corporate suspect' over hacking and bribing offences' (here).

Corporate charges would not normally be brought until after all relevant individuals' prosecutions/convictions have concluded. But first there would be an assessment on whether or not to prosecute. It is striking how the criteria to be met for NOT prosecuting read like a textbook checklist for News Corporation's re-structuring since the launch of Operations Weeting and Elveden:
Additional public interest factors against prosecution:
A genuinely proactive approach adopted by the corporate management team when the offending is brought to their notice, involving self-reporting and remedial actions, including the compensation of victims... This will include making witnesses available and disclosure of the details of any internal investigation... lack of a history of similar conduct involving prior criminal, civil and regulatory enforcement actions... The existence of a genuinely proactive and effective corporate compliance programme... The offending represents isolated actions by individuals, for example by a rogue director... the company in its current form is effectively a different body to that which committed the offences...all of the culpable individuals have left or been dismissed, or corporate structures or processes have been changed...
CORPORATE 'PERSON'
A company is a legal person, capable of being prosecuted, and should not be treated differently from an individual because of its artificial personality.
Whilst having no legal bearing, it's intriguing to make the analogy of News International acting 'as if' a registered informant 'person'. Hypothetically, you start with a microcosm culture of individual deals between cop and informant like 'George' yet end with the same culture in macrocosm - deals between senior ranks and corporate informants.

For example, the Management and Standards Committee (MSC) happily volunteered an enormous amount of material to the MET which is alleged to implicate journalists from both NOTW and the Sun. Arrested Sun journalists met with Rupert Murdoch last Spring to express their anxiety and perception of the MSC's collaboration in collecting evidence for the MET police:
- Unidentified Sun journalist: “Quite a number of us in this room were selected for an interview with Linklaters, the lawyers, long before any suggestion there would be arrests or there had been any wrongdoing. The interviews were conducted on the basis that Linklaters just wanted to get a feel for how the newspaper was put together, who did what, how it worked, all the rest of it. And then, perhaps not surprisingly now, nearly every single person interviewed by Linklaters found themselves arrested. And, indeed, large chunks of the interviews we gave to Linklaters was produced to us in the police station on our arrest." 
The 'corporate person' of News International - regenerated now as News UK - arguably should not be able to qualify for protected informant status equivalent to that of HumInt ie human intelligence source, In the same way as an individual, the corporate 'person' should not be capable of forming a covert memorandum of agreement solely with MET senior ranks for immunity from prosecution etc etc. Indeed, the MET could not conceivably agree such an understanding without the mandatory referring up to a high-level 'specified prosecutor' for the necessary authority. Such specified prosecutors are extremely limited, such as the outgoing Director of Public Prosecutions (DPP) Keir Starmer, or in a high profile case involving key public interest issues, perhaps the Attorney General himself.

ENDGAMES

Neil Chenoweth's excellent article ' How will it end for Rupert Murdoch? This is one way…' (here) posits the endgame - if  "convicted of a corporate charge, it is difficult to imagine that Rupert and James Murdoch, as former directors of News International, could retain their board seats on 21st Century Fox. If they stayed on the board, 21st Century Fox would risk US action against the company and its US broadcasting licenses...If there is 'pandemonium' in News Corp UK management ranks at the possibility of a corporate prosecution, as the Independent reports, it’s the potential effect on Murdoch which is the real issue... It still looks an outside chance. But if the damage control fails, for Rupert Murdoch, after 60 years in newspapers, this is one possible ending."

True, that is one possible ending. But there is another - a way of ensuring no corporate charges, no inconvenient surfacing of back channel deals, questionable understandings, no political fallout for the Attorney General. It is the 'nuclear option' as corporate charging decisions allow that
Dissolution of a company has the same effect as the death of a human defendant inasmuch as the company ceases to exist
That would be game over.

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You can contact the author on Twitter @brown_moses or by email at brownmoses@gmail.com

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