The current press outrage about police using the Regulation of Investigatory Powers (RIPA) makes for interesting debate. Many are surprised. But it isn’t a new police tactic. It was used at least as far back as Operation Caryatid – the original MPS investigation into phone hacking by Clive Goodman and Glenn Mulcaire.
Acquiring newspaper newsdesk phone records is neither a recent nor secret use of RIPA. It did not start with the Mail newsdesk over the Chris Huhne matter. Nor did acquiring individual journalist’s phone records start with the Sun, Tom Newton Dunn and Plebgate.
As Nick Cohen put it in the Spectator,
In private, the police now tell journalists that they have pulled reporters’ phone records in every single leak inquiry in the last ten years. I believe them.
The Metropolitan Police Service (MPS) used RIPA to access News of the World newsdesk phone data in 2006. This use of RIPA was authorised internally without recourse to the scrutiny of a judge – and was openly addressed in public at the Leveson Inquiry.
RIPA BOLLOCKS AND RIPA CONFUSION
Much confusion (consciously or unconsciously) has been enabled by the deployment of RIPA legislation during the phone hacking scandal. So it is important to clarify the TWO different ways in which RIPA is relevant to Operation Caryatid.
Firstly, the more well known facet is how RIPA section 1 offences were selected for the prosecution of Goodman and Mulcaire. A questionable interpretation of RIPA section 2 – the analogy of the unopened envelope – also severely constrained the scope of the investigation. This is what Nick Davies calls the ‘RIPA bollocks’ in his book Hack Attack.
Secondly, the less well known Caryatid deployment of RIPA was section 22. This is the RIPA provision that grants police and other authorities to demand phone records and data from telephone service providers, subject to certain conditions. It is this use of RIPA section 22 that can be authorised internally thus evading judicial scrutiny. RIPA section 22 makes no exception for and offers no protection to journalists or the confidentiality of their sources.
This Bellingcat post will focus predominantly on the lesser known section 22, and how the MPS in 2006 were harvesting phone data from the News of the World.
THE START OF OPERATION CARYATID
Deputy Assistant Commissioner (DAC) Peter Clarke tasked Phil Williams as Senior Investigating Officer (SIO). The first phase of Caryatid (from Dec 05 – May 06) relied heavily on one MPS Intelligence officer from Specialist Operations (SO13) Telephone Intelligence Unit – Kevin Southworth. His role was close liaison with mobile telephone service providers to support identifying the scope of suspected ‘rogue numbers’ which might be illegally accessing voicemails. Thousands of lines of telephone data were obtained for at least two suspected journalistic numbers – Clive Goodman and the News of the World newsdesk hub number. Police obtained a year’s worth of phone data for call and traffic analysis. (here)
O2 later reciprocally provided information that another suspect ‘rogue number’ was that of ‘Paul Williams’ aka Glenn Mulcaire. It was O2 that discovered Mulcaire’s complicity, not the police.
And it wasn’t just O2. “Orange simply responded to a valid Section 22 RIPA notice…. Orange supplied communication data pursuant to RIPA. The communications data supplied related to searches of our call records to identify incoming calls related to particular telephone numbers (supplied to us by the MPS)” (see here)
This clearly identifies that RIPA was used to obtain phone communications data.
Section 22 includes the detail on who may authorise obtaining communications data. (RIPA here)
Authorisation can be granted internally by a police force without reference externally for a judge’s scrutiny and approval. A designated ‘authorised person’ may approve Section 22 notices ex officio, “by reference to an office, rank or position with a police force.” The scrutinising ‘authorised person’ must not be connected to the relevant investigation. Evidence to the Leveson Inquiry describes the process as
an application setting out the necessary justifications for why this information is needed. It would then be referred to an independent Superintendent who would then assess the merits of the application before it could be implemented.
This authorisation application and approval is required to be in writing in a retrievable form and the records retained.
Clearly this raises questions:
– What were the RIPA-compliant specified grounds for authorisation?
– Who exactly authorised these Caryatid RIPA section 22 notices?
– What was their office, rank and position?
– Were they also situated in Specialist Operations or a different MPS Directorate?
– Was knowledge and/or authorisation of the RIPA Section 22 notices escalated to higher ranks of the MPS, security services or Home Office?
THE SECOND PHASE OF CARYATID
In April-May 06, Caryatid took stock. DAC Peter Clarke directed maintaining a narrow, ring-fenced investigation focused on Royal family staff only, Clarke’s motivations for that decision were resourcing limitations and, arguably, MPS reputation damage limitation. (see here)
Phil Williams (SIO) effected a narrow interpretation of RIPA section 1 and 2 (aka RIPA bollocks) offences and the evidence-gathering phase investigation therefore became focused on technical evidence only. This determined a second wave of RIPA section 22 notices (again with internal MPS authorisation) to mobile phone service providers. Rather than historical phone data these new section 22s sought solely fresh illegal voicemail interceptions.
Yet Williams’ briefing paper to the Attorney General (Lord Goldsmith) and Crown Prosecution Service (CPS) in May 06 demonstrated that the previous historic Sec. 22 phone data harvesting from Goodman, Mulcaire, and the News of the World phone hub had revealed
a vast number of unique voicemail numbers belonging to high-profile individuals (politicians, celebrities) have been identified as being accessed without authority. These may be the subject of wider investigation.
Resources, as we’ve been told repeatedly, were scarce for Caryatid. But they were innovative, perhaps uniquely. Or perhaps not. Phil Williams’ witness statement to Leveson tells how the telephone services providers were persuaded not only to provide RIPA section 22 raw data but also to process it.
Caryatid could not even resource the admin necessary legally to obtain the data (p18 here):
Equally as we secured data based on the phones used by Goodman and subsequently Mulcaire, we would not have been able to resource the administrative process of lawfully applying for information on every piece of phone data we had secured. To that end we needed the service providers’ cooperation with us providing the ’rogue numbers’ (as we identified them) and the service providers then trying to establish which of their voicemail numbers may have been compromised.
So service providers appear to have been investigating and analysing phone data FOR Caryatid as the MPS could not resource the specialist analytical work. This was a neat legal segue.
THE THIRD PHASE OF CARYATID
The final arrests-to-prosecution phase were further narrowed down only to Goodman and Mulcaire, despite the seizures on arrest of extensive evidence from their homes and places of business.
Very soon after those August 06 arrests, DAC Peter Clarke made the decision to close down any further investigations by Operation Caryatid. Unfortunately Clarke’s rationale for curtailing Carayatid, endorsed by Phil Williams, failed to be documented.
At least one of the Caryatid team was disappointed. Mark Maberly said (p89-91 here),
There were still lines of enquiry that I would have been keen to follow. In particular, I’d identified three names who, if I had the sufficient evidence, I would have liked to have spoken to…
Q. And these were three journalists within News of the
World, were they?
A. That’s correct, yes.
Q. Had you detected a pattern in relation to Mr Mulcaire’s activity, whereby he would telephone someone within the News of the World before accessing a voicemail, accessing a voicemail and then phoning that person back?
A. Certainly we believe that to be the case.
A. In the billing data for Mr Mulcaire, there were calls by him to other journalists. We were aware in the material he had written down those journalists’ mobile numbers on bits of paper.
A. So from that point of view, I could identify, for example, one of these three journalists, I had his mobile number, and I was aware that that mobile number appeared in billing data.
Q. This is — yes, well. This is arguably extremely interesting circumstantial evidence, isn’t it?
A. I mean, call pattern analysis, which is the police term that we would refer to it by, it can be very good circumstantial evidence.
The indictment of Goodman and Mulcaire excluded all the wealth of evidence of offending prior to November ’05. So even the dates to be considered at trial were narrowed considerably.
What was the upshot of all this narrowing of investigative strategy, narrowing of victim pool, restriction to RIPA Sec 1 offences, interpretation of RIPA (RIPA bollocks), and narrowed indictment period? Crucially, the net effect was to deftly sidestep any obligation for prior disclosure or public scrutiny at trial of the initial RIPA sec22 strategy of journalistic and newsdesk telephone data acquisition.
The fallout from Caryatid decision-making are well documented. However, some subsequent details deserve a closer look.
In July ’09 DAC John Yates was tasked to ‘establish the facts’ around a Guardian story on phone hacking. A few hours later, Yates rushed to judgement in announcing there was no need to re-open the News of the World phone hacking investigation. Of course, the original Caryatid team had long since dispersed to other duties. None of the Caryatid team were readily available to help Yates manage the developing criticism of the MPS. Except one, who was well-placed and close to Yates.
During 2009 and 2010 Kevin Southworth was a member of Yates’ Gold Group dealing with responses to phone hacking revelations. Southworth was the designated officer and single point of contact (SPoC) dealing with Freedom of Information Act (FOIA) requests on phone hacking. He was also responsible for managing responses to victims such as John Prescott and Chris Bryant, and to Tom Watson. (here)
In addition, Kevin Southworth coordinated MPS evidence and appearances before both Culture, Media and Sport and the Home Affairs Select Committees (here)
By the time that Operation Weeting commenced in January ’11, Kevin Southworth was Staff Officer to John Yates (p15 here).
WIDER RIPA DATA HARVESTING?
Internally authorised RIPA section 22 requisitions can be shown to have been actioned over an extended period of time, pre-dating even Operation Caryatid. In 2003/4, Operation Motorman/Glade – where journalists were suspected of offences – seems to have acquired phone data too. A retired MPS officer and a MPS civilian worker were investigated “…. for the offence of conspiracy to corrupt. The reason for this was that evidence from communications data and analysis indicated that King had been communicating with Marshall shortly before and after the PNC checks were being conducted.” (p9 here)
Seven journalists were interviewed under caution by Operation Glade. No information is available as to whether or not RIPA sec 22 was considered in order to access those journalists’ phone data.
Operations Motorman, Glade, and Caryatid each were investigations where journalists were suspected of illegality. And there have been other Ops in the last decade when various journalists names have surfaced – for example, Operation Kalmyk, and Operations Abelard I (2002) and Abelard II (2006) investigations into the murder of Daniel Morgan. Hopefully the MPS have kept all their relevant RIPA section 22 authorisations in written and retrievable form, safe and securely stored.
Last Thursday on BBC Radio 4’s Today programme, Sir Ian Blair said, “We need to look at what use has been made of it [RIPA] over the last 15 years. Had it been considered that they were likely to go after journalistic sources I think that would have been in the code in a particular way in the same way as it is in the Police and Criminal Evidence Act. The codes of practice of RIPA need to be re-written.”
It’s almost as if he was unaware his own officers used RIPA powers in Operation Caryatid whilst he was MPS Commissioner in 2006. Or that they sidestepped legal authorisation to allow service providers to undertake investigative analysis.
By contrast current Deputy Commissioner Craig Mackey, the same day, seemed surprised that anybody else was surprised RIPA sec 22 had been habitually used to access telephone communications data. (here)