Monday, 14 October 2013

10 To Watch From The Home Affairs Select Committee

The latest from my regular contributor.

The Home Affairs Select Committee (HASC) is not giving up its pressure on SOCA (Serious Organised Crime Agency, now - like Dr Who - regenerated as the National Crime Agency (NCA).  HASC's probing on 'blue chip' clients using rogue PIs (private investigators) is rigorous and determined. Whilst mainstream media focus on Leveson's committee appearances and gear up for Operation WEETING trials, here's '10 to watch' from HASC:

1  FUNDING FOR 'BLUE CHIP' INVESTIGATION

In response to HASC Chair, Keith Vaz, the Lord Chancellor Chris Grayling is decidely lukewarm on guarantoring the Information Commissioner's Office (ICO) actually get the resources needed to investigate 'blue chip' clients.  After sitting on the neglected and dis-organised evidence for years, SOCA's abolition was a great excuse for a priority clearout - swiftly dumping the problem on the ICO at short notice.

The Attorney General told Vaz  "... you will be aware that the ICO's data protection work is funded through notification fees paid by organisations and individuals responsible for the processing of personal data and not through a direct grant from government. However, we will continue to work with the Information Commissioner to monitor any resourcing issues that may arise as a result of this investigation and other funding pressures."

That's just about as non-commital as you can get. (pdf p42)

2  CUSTODIAL SENTENCING: DATA PROTECTION ACT

HASC also asked the Attorney General what action was planned on implementing custodial sentences for breaches of section 55 of the Data Protection Act (DPA).  The enabling legislation is already in place, and more dissuasive penalties have been (over a decade) recommended by the ICO, several Select Committees - and by the Leveson Report.  

"It is the Government's view that the recommendations require careful consideration by a wide audience. We therefore intend to conduct a public consultation on the full range of data protection proposals, including on whether to introducing custodial sentences
... We think it is important that the public get the opportunity to consider the question of whether to introduce custodial penalties for breaches of section 55 in the context of Lord Justice Leveson's wider proposals relating to the data protection framework."  (pdf p42)

And here's the probable Catch 22 - just as 'nothing could be done' whilst the Leveson Inquiry continued, no doubt we shall hear 'nothing can be done' whilst criminal cases are in process, or until any appeals conclude, or until after the general election, or because there is an 'R' in the month...

3  OPERATION MILLIPEDE CHARGING DECISIONS

More information is now available on the charging decisions reached in Operation MILLIPEDE.  A meeting in 2010 of SOCA investigating officers and Crown Prosecution Service (CPS) considered a range of unspecified potential offences. The offence strategy decided upon was under the Fraud Act.

For three of four defendants, offences relating to misconduct in public office were ruled out.  Why? Sadly, we don't know as no record of the rationale exists in the CPS file. Gregor McGill - whose name may be familiar from CPS formal charging statements on Operation ELVEDEN - very carefully worded his understanding: "in relation to allegations of misconduct in public office, the CPS was never in possession of sufficient evidence to provide a realistic prospect of conviction for that offence."  Note that he doesn't say no evidence existed... but if SOCA did have any evidence, he carefully points out, the CPS was never in possession of it. (pdf p43)

4  SOCA 'BLUE CHIP' LIST 

Two SOCA lists ARE in the public domain, even though they were dragged from SOCA kicking and screaming.  (pdf p22)  The first is a short list of 'categories' of 8 clients (no names, no pack drill) which were used in the Operation MILLIPEDE prosecution.  Bland and uninformative, the 'used in prosecution' list includes 1 'Oil' client, 1 from 'Law', 1 from 'Rail Services' etc.  But the second list of 94 unnamed clients in categories - "judged as potentially relevant to Millipede which was not needed as evidence" - is much more informative.  It shows number and category of those SOCA chose not to use in support of the prosecution; it is an insight into the decision-making process itself.

Comparing the two lists shows the evidence selected for use in the prosecution was emphatically not a representative sample.  Two specific categories of client dominate the full list.  Topping the numbers is the vague category 'Law' - but we are not told if this includes law practices, in-house legal, counsel chambers, law agencies, paralegal, law enforcement agencies and so on.

The second highest category of clients is 'Private Investigators'.  Given that SOCA's own 2008 report (Project Riverside) identified "the harms inflicted on the UK by the rogue element of the private investigation industry", it is surprising no evidence was used in prosecution.  To clarify, Operation MILLIPEDE led to 4 convictions of private investigators - whose second largest client base was other private investigators.  By 2008, let alone charging decisions in 2010, there was ample evidence of PIs operating in connected chains.  Sub-contracting of specialists was a widely known technique - for example, in Operation BARBATUS (2007).

Yet this key characteristic did not feature in the SOCA MILLIPEDE prosecutions of 2011 - even though MILLIPEDE defendants had been on SOCA's radar since at least 2006.  HASC needs to ask more questions about that 2010 - only partly documented - MILLIPEDE charging decisions meeting.

5  OPERATION SPRUCE

Yes, there's a new op - Operation SPRUCE. (pdf pp 45-45)  It is the new investigation by the ICO into the MILLIPEDE 'blue chip' clients, kindly dumped on them by now-defunct SOCA in the form of 31 lever arch files.  The original plan had been had been to hand over after MET Operation TULETA prosecutions concluded.

"After consulting with SOCA and the Metropolitan Police, I can confirm that none of the 98 clients on the list was contacted during their investigations."  Given the years of delay, it is entirely possible that much corroborating evidence no longer exists.

12 clients are no longer active, 67 are still active but 24 of those are outside ICO jurisdiction, a further 11 are currently of undetermined activity status.  So far, Operation SPRUCE has determined probable offences by 19 'blue chip' clients involving 125 victims.  This is many more than SOCA's (undated) attempts to write to those victims affected.  (pdf p 29)

6  THE BASU LIST

The unpublished Basu List (pdf pp 34-36) is far and away the most interesting of the submissions to HASC so far.  MET Commander Neil Basu, who leads all Hackgate operations, seems to have taken the opposite strategy to SOCA.  Instead of having information dragged bit by bit from the MET, Basu opted to provide HASC with MORE confidential data than HASC actaullyrequested.  This strategy can be summed up as 'be careful what you wish for - you may get it.'  Basu has submitted to HASC names and data for all MET investigations referencing PIs for 1998-2013.  This includes both closed AND ongoing investigations.

"I have included all investigations (including live investigations), but have redacted the names of the clients themselves to avoid compromising active investigations that are underway. Instead, and again to assist the Committee, I have identified the relevant industry within which they worked."  (pdf p 34)

The confidential Basu list includes:
- The names of clients who have been charged
- The names of clients who have been convicted of criminal offences
- The names of those where was insufficient evidence to justify an investigation by the MET
-  The names of those where No Further Action (NFA) resulted

To date, 7,161 people have been identified as victims (5,500 of those from Operation WEETING alone).  A further 1,250 potential victims are attributable to Operation PINETREE - the probe into a second alleged phone-hacking conspiracy at the News of the World.  Even allowing for some duplication, it is clear that the vast majority of rogue PIs victims accrue from rogue employees of rogue newspapers.

The data collation involved searches of the Police National Database (PND), CrimInt+, Integrated Intelligence Platform (IIP), MET Directorate of Professional Standards (DPS) and a "Confidential Unit".  It is noteworthy that the DPS search also turned up 477 relevant hard-copy documents which have never been scanned into electronic form during 1998-2013.

The scale is staggering.  Known Operations referencing PIs 1998-2013 include Two Bridges, Nigeria, Abelard I, Caryatid, Glade, Barbatus, Abelard II, Weeting, Elveden, Kalmyk, Tuleta, Pinetree.... (for background, see here and here)

7  SOCA and SERCO

On 3 Sept 2013, Keith Vaz asked Stephen Rimmer (Interim Chair of SOCA) about SOCA Board Members declared interests - given that SOCA's Chair had just resigned for failing to declare his company in the Register of Interests (here).
Q82 Chair: ...Have you asked them whether any of their roles—for example, Peter Clarke has an organisation called Peter Clarke Associates; Francis Plowden is a director of Serco plc. This is the premier law enforcement agency as far as organised crime is concerned... we want something precise. Did you say to them, 'Have any of your interests got anything to do with private investigators?'
Stephen Rimmer: Not in those specific terms, but I am absolutely satisfied that there is no conflict of interest. 
Rimmer followed up with a letter to HASC, correcting Vaz: "During the early part of the session you referred to Francis Plowden, a non-executive director of SOCA, by saying that he was a 'director of Serco Plc'. This is incorrect. I understand that Francis is not and never has been a director of Serco Plc. He has held shares in Serco Plc since February 2005. This fact was clearly stated by him on the SOCA Register of Interests upon his appointment to the SOCA Board in August 2009. Since that date, Francis has continued to declare this interest."  (pdf p41)

However, Rimmer was subsequently forced to re-consider (p46) whether there just might be the perception of conflict of interest as, since Plowden the SERCO shareholder has been a Board member:

- SERCO had a SOCA contract as IT supplier till 2011

- SERCO continues to have a SOCA £1million pa contract for "the provision of secure storage and associated services"

- SOCA acts as a facilitator for the City of London Police for the provision of 'Know Fraud' to the National Fraud Intelligence Bureau. SOCA is the named party in the contract, but the City of London Police run and pay the contract directly to SERCO

- SOCA does not own but contributes maintenance and support costs to SERCO for a secure communications system of around £2,000 a year.

Stephen Rimmer is though still "satisfied that there is no conflict of interest in relation to these issues and Francis Plowden's shareholding."  (pdf p46)

8  SOCA BOARD: 'REGISTER OF INTERESTS'

In his 10 Sept 2013 letter to HASC, Stephen Rimmer promised to provide more information on other declared / undeclared directorships, business interests and consultancy activities of Board Members (such as that of the aforementioned Peter Clarke, former MET Assistant Commissioner in overall command of Operation CARYATID). (pdf p41)

Either that detail of SOCA Board Members' interests has not been published by HASC, or Rimmer has not provided the promised submission.  Either way HASC needs to follow up - and continue to press for the same attention to perceived conflicts amongst Board Members of the new National Crime Agency, SOCA's successor.

9  NATIONAL CRIME AGENCY BOARD MEMBERS

As from 7 Oct 2013, the NCA's nine-strong, all male, Board are

•    Keith Bristow – Director General (Chair)
•    Phil Gormley – Deputy Director General
•    David Armond – Director, Border Policing Command
•    Peter Davies – Director, Child Exploitation and Online Protection Command
•    Gordon Meldrum – Director, Organised Crime Command
•    Gary Chatfield – Director of Operations (Temporary)
•    Tim Symington – Director of Intelligence
•    Stephen Webb – Director Corporate Services (Interim)
•    Trevor Pearce – Director, Economic Crime Command (Interim)

There is currently a selection process underway to identify four non-executive members for the Board.  It will be interesting to see if any more familiar old SOCA names appear as Non-Execs, and to scrutinise the new NCA Board 'Register of Interests' when it is made public. (see here)

10  NATIONAL CRIME AGENCY - THE NEW BROOM SWEEPS CLEAN

New NCA Director General, Keith Bristow told HASC: "On 7 October 2013 all information held by SOCA will pass from SOCA to the NCA".

That's good to know.  All SOCA information and evidence on private investigators, serious organised crime etc etc will be safely retained (probably in private industry commissioned 'secure storage' and 'secure communications systems').

And in the interests of transparency, 'being truthful, open and accountable for our actions', it's encouraging that all public domain SOCA documents will continue to be accessible through the SOCA Library - reports such as that of Project Riverside, SOCA Annual Reports, Registers of Interest, not-protectively-marked UK Threat Assessments and so on.  That's admirable.

Errr... no.  All SOCA public domain documents have now disappeared entirely, including the entire SOCA web site.  All SOCA URLs now auto-redirect to the new National Crime Agency home page.

Well played, NCA.... but I don't think HASC will be impressed.

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

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