The Observer and the private investigator

This column was originally published in The Observer on Feb. 13, 2011 and on the ONO website on Feb. 27, 2011.

Scotland Yard put new heat under the News of the World hacking scandal last week when it announced that a new line of inquiry had suggested that messages left on the mobile phones of several high-profile figures, including the former deputy prime minister John Prescott, may have been intercepted by the paper. Lord Prescott predicted that the scandal would not be confined to one Sunday tabloid. “I think it is going to go a long way,” he said. “I think it will go to a lot of newspapers who have been hacking people for a long time.”

So it would be reasonable for Observer readers to ask if their newspaper has been involved in illegal interception, particularly after Louise Bagshawe MP told radio listeners recently that Sky News had reported that there may be evidence that the Observer, among other newspapers, was involved in phone hacking.

That’s a serious allegation to level at a newspaper that has joined its sister, the Guardian, in the pursuit of this story from the start. In reply to Ms Bagshawe, the Observer went on the record to say: “To our knowledge, there has never been any suggestion, let alone evidence, that the Observer has undertaken, commissioned or in any way been involved in this activity.”

So how did this allegation arise? It would seem that the phone-hacking issue has become confused with a report published in 2006 by the Information Commissioner that found several newspapers, including the Observer, had used the services of a private investigator. The report, “What Price Privacy Now?”, did not deal with phone-hacking – which is a criminal offence with no public interest defence – but with potential offences under the Data Protection Act, to which there is a public interest defence. And no offence is committed if the information is necessary for the prevention or detection of crime.

The report sprang out of Operation Motorman, an investigation launched by the Information Commissioner’s Office in 2003, in which the records of a number of investigators were seized, including those of JJ Services, run by Steve Whittamore. He worked with associates able to supply him with data from telephone accounts and DVLA records. Alongside the media, his clients included insurance companies, lenders and creditors, local authorities and parties involved in divorce cases.

Using his logs, which covered the years 1999 to 2003, the ICO devised a ranking of usage by the press, placing the Observer ninth in a league of 32 newspapers and magazines and identifying some 400 journalists from those titles. The documents show the Observer used Whittamore for 103 queries. They reveal he was being asked to establish home addresses and to find telephone numbers, some ex-directory.

Former reporters told me they were working to uncover illegal arms deals, drugs trafficking, Islamic terrorism and political intrigue; stories they believed to be in the public interest that went on to appear in the paper. They said that the names that turn up in Whittamore’s register were people who would be, in the main, hard to find; individuals who would not make themselves available for interview. They felt it was right that they should attempt to find those people and put allegations to them. Sometimes, they would be up against tight deadlines and would use Whittamore because he was quicker at finding phone numbers or converting numbers into subscriber addresses.

The ICO also showed me handbooks written by private investigators explaining how to “blag” information for their debt collection agency clients. Looking at these methods, it seems likely that many, but not all, ex-directory numbers could have been obtained by blagging .

When normal inquiries failed, senior figures in the newsroom were aware that reporters would occasionally turn to Whittamore. After “What Price Privacy Now?” appeared, the editor at the time, Roger Alton, said: “Yes, the Observer has used the services of an outside agency in the past, and while there were strong public interest defences for most of those cases, it is possible that some of the inquiries did not sufficiently fit that criterion. As a result, I have now taken steps to ensure that no inquiries will be made through outside agencies unless I believe that there is a compelling public interest to do so.” John Mulholland, the current editor, confirms that this instruction stands today.

Because the commissioner did not consult any of the titles before publishing his report they were unable to offer a public interest defence of their activities, but last week, the commissioner allowed investigations officer David Clancy to show me the records at his headquarters in Wilmslow, Cheshire.

It’s important to stress that no prosecution of any journalist has arisen from the ICO’s investigations. When this matter came before a parliamentary select committee in 2009, David Clancy was asked why this should be. He replied: “I think the difficulty would be the offence relates to ‘knowingly or recklessly obtaining personal information’. We had in the region of 400 journalists and, to be fair to those journalists, if we were to conduct an investigation we would have to investigate all 400 and satisfy the court beyond all reasonable doubt that the journalist knew that information was unlawfully obtained. If it was an ex-directory telephone number, some of those numbers could have been obtained by ringing round friends or other people and, therefore, an ex-directory telephone number may have been obtained legitimately; we could not say for sure.”

It’s the nature of journalism that some inquiries prove fruitless, but a cross-referencing of targets in Whittamore’s register with names that appeared in the paper establishes that many stories in the public interest were being produced. Examples include articles on racketeering landlords, radical Islamic clerics, germ warfare test victims, fugitive war criminals and crooked politicians.

Where does this leave the paper today? The Observer has said that in the past it has used a private investigator to help it establish stories it believed to be in the public interest. Publishing in the public interest is entirely defensible under the Data Protection Act. And that’s the important distinction: intercepting another person’s phone messages is just plain illegal.

This column was originally published in The Observer on Feb. 13, 2011.

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