The story of Mr Goodman and Mr Justice Gross

When did News International have firm independent evidence of wider participation in phone hacking?

Clive Goodman wrote a couple of letters to News International back in March 2007. They were published last month when they were included in materials released to the Select Committee on Culture Media and Sport.

Commenters seized on the first of these two letters to say it finally demolished the "lone rogue reporter" narrative promoted by News International executives since 2006.

In that first letter, Goodman tells News International that the practice of phone hacking "was widely discussed in the daily editorial conference, until explicit reference to it was banned by the editor". Tom Watson MP said the letter was "absolutely devastating" and added:

Clive Goodman's letter is the most significant piece of evidence that has been revealed so far. It completely removes News International's defence. This is one of the largest cover-ups I have seen in my lifetime.

The date of this first letter - 2 March 2007 - is important. Goodman - along with Glenn Mulcaire - had pleaded guilty to offences in respect of phone hacking on 29 November 2006.

For some time previously it had been clear within News International that Goodman was going to plead guilty. However, Goodman was not sentenced until 26 January 2007, when he received a sentence of four months' imprisonment.

It was only on 5 February 2007, over a week after sentencing, that Goodman was dismissed. This dismissal was by means of a letter from Les Hinton, Executive Chairman of News International Limited, dated the same day. This stated that Goodman's employment was to be terminated with immediate effect.

There is nothing in the 5 February 2007 letter which explains why the dismissal had not occurred at the dates of plea or of sentencing. And there is no mention of why no disciplinary procedure had commenced beforehand.

Goodman's response was to send that letter of 2 March 2007 (there may also have been "without prejudice" correspondence as well, which has not been disclosed). In one way, the assertions in the letter of 2 March 2007 are quite as remarkable as Watson suggests.

On receipt of the letter, News International had written evidence from a former reporter of wider discussions in the newsroom about phone hacking. As such, the evidence of Hinton to the Select Committee on Culture Media and Sport just four days later, on 6 March 2007, is remarkable. In particular, the following two exchanges take on a new light:

Q90 Chairman: Les, can I come back to the Goodman case? The official version of events appears to be that Clive Goodman broke the law and has paid the penalty for doing so; that his editor was unaware that he broke the law but nevertheless took responsibility, because he was the editor, and resigned; and that is the end of it. Can you tell us what investigations you carried out to determine whether or not anybody else was aware of what Clive Goodman was doing?

Mr Hinton: First of all, the police obviously carried out pretty thorough investigations, and the result of their investigation was the charge against Clive and against the private detective. Clive went to prison; the News of the World paid a substantial amount to charities nominated by Prince Harry, Prince William and the editor, who told me he had no knowledge of this activity but felt that, since it had happened on his watch, he should take his share of the responsibility, and he resigned. The new editor has been given a very clear remit to make certain that everything is done in the form of seminars and meetings. We were already doing this kind of thing in the past with all our newspapers. It has been reemphasised. They are all attending. There is mandatory attendance at seminars, understanding the law and understanding the limits; understanding that, in the event that there is a judgment that the public interest might warrant some stepping over the line, it has to be authorised by the editor at the very least. That is all being done now. I believe absolutely that Andy did not have knowledge of what was going on. However, he is no longer the editor and what matters now is that we have to start somewhere. What we are doing now is a very rigorous programme to make sure that the conduct of the journalists there is as impeccable as it reasonably can be expected to be.

Q95 Chairman: You carried out a full, rigorous internal inquiry, and you are absolutely convinced that Clive Goodman was the only person who knew what was going on?

Mr Hinton: Yes, we have and I believe he was the only person, but that investigation, under the new editor, continues.

It may well be that Hinton was unaware of the 2 March 2007 letter: it was addressed to the director of human resources rather than to Hinton personally, even though Hinton had signed the dismissal letter. There may be other explanations for Hinton confidently asserting, despite the 2 March 2007 letter, that he believed absolutely that Coulson had no idea what was going on.

However, the 2 March 2007 letter can only take so much evidential weight. It could well be the bare contention of an aggrieved former employee seeking compensation: a mere negotiating token. At that desperate stage, Goodman would say that, wouldn't he?

This is why the context of the 2 March 2007 letter is crucial, and an examination of the other documents recently disclosed, as well as of the evidence given before previous select committees, leads to a more complex picture of what happened. The general effect is to discredit the convenient "rogue reporter" narrative far more than Goodman's convenient allegation.

Goodman had been sentenced on 26 January 2007 by Mr Justice Gross. But Goodman was not the only defendant sentenced that day; Mulcaire was sentenced to six months. And, critically, Mulcaire was also convicted and sentenced for interceptions not related to the royal household.

This is the CPS's own description of how the charges came about from July 2009:

From a prosecution point of view what was important was that any case brought to court properly reflected the overall criminal conduct of Goodman and Mulcaire.

It was the collective view of the prosecution team that to select five or six potential victims would allow the prosecution properly to present the case to the court and in the event of convictions, ensure that the court had adequate sentencing powers.

To that end there was a focus on the potential victims where the evidence was strongest, where there was integrity in the data, corroboration was available and where any charges would be representative of the potential pool of victims. The willingness of the victims to give evidence was also taken into account. Any other approach would have made the case unmanageable and potentially much more difficult to prove.

This is an approach that is adopted routinely in cases where there is a large number of potential offences.

For any potential victim not reflected in the charges actually brought, it was agreed that the police would inform them of the situation.

Adopting this approach, five further counts were added to the indictment against Mulcaire alone based on his unlawful interception of voicemail messages left for Max Clifford, Andrew Skylet, Gordon Taylor, Simon Hughes and Elle MacPherson.

In addition to obtaining evidence from these persons, the police also asked the reviewing lawyer to take a charging decision against one other suspect. On analysis, there was insufficient evidence to prosecute that suspect and a decision was made in November 2006 not to charge. So far as I am aware, this individual was neither a journalist on, nor an executive of, any national newspaper.

This progress in the case meant that its preparation was completed by the time Goodman and Mulcaire appeared at the Central Criminal Court on 29 November 2006 before Mr Justice Gross. When they did appear at court, Goodman and Mulcaire both pleaded guilty to one count of conspiracy to intercept communications of the voicemail messages left for members of the Royal Household. Mulcaire alone pleaded guilty to the five further substantive counts in respect of Max Clifford, Andrew Skylet, Gordon Taylor, Simon Hughes and Elle MacPherson. The case was then adjourned to obtain probation reports on the defendants.

On 26 January 2007 sentencing took place. Goodman was sentenced to four months' imprisonment and Mulcaire to a total of six months’ imprisonment, with a confiscation order made against him in the sum of £12,300.

Now we come to what Mr Justice Gross said in his sentencing remarks on 22 January 2007. He said of Glenn Mulcaire:

As to Counts 16 to 20 [relating to the phone-hacking of Max Clifford, Simon Hughes MP, Andrew Skylett, Elle Macpherson and Gordon Taylor], you had not dealt with Goodman but with others at News International.

This means that the contention that others at News International worked with Mulcaire is not just the self-serving claim of Goodman seeking a settlement package; it is also the considered view of a judge sentencing a person for a custodial sentence in view of the evidence then before him.

So it is not just the 2 March 2007 letter which placed News International on formal notice of allegations that phone hacking went wider than Goodman; it was clear from the sentencing remarks of the judge.

The sentencing remarks have been noticed before. In 2009, Paul Farrelly MP put them to News International's then legal manager Tom Crone:

Q1399 Paul Farrelly: Mr Myler, in evidence to the PCC you said in February 2007, and tell me whether the PCC's quote is accurate in their report, "This was an exceptionally unhappy event in the 163 year history of News of the World involving one journalist". They quote you as saying that Goodman was a "rogue exception". That is accurate, is it?

But in the court case in January the judge has said, "As to counts 16-20", which were the counts involving Max Clifford, Simon Hughes, Elle Macpherson, Sky Andrew and Gordon Taylor, who are not Royals, to Mulcaire, "you had not dealt with Goodman but with others at News International".

On the basis of that import, how could you say that this was one rogue exception involving one journalist?

Mr Crone: I was in court actually and I remember him saying that and my immediate reaction - obviously nothing I could voice - was "Why is he saying that?", because the prosecution did not open it, saying there was such a connection.

Q1400 Paul Farrelly: So the judge's summary is wrong?

Mr Crone: I cannot remember hearing anything in court from the prosecution to justify that.

What Crone's response shows is that back in January 2007 the lawyers at News International were well aware that the judge had said that Mulcaire had worked with others in the News of the World newsroom. In this respect, Goodman's letter some six weeks later could have hardly have come as a shock; Goodman was essentially only repeating what the sentencing judge had stated when presented with the evidence against Mulcaire.

In my view, the sentencing remarks constitute firm independent evidence that there was wider participation; indirect evidence, of course, but enough to raise a serious concern for those involved, even if News International had no direct access to the prosecution case and direct evidence against Mulcaire. Given these sentencing remarks (and Goodman's letter of 2 March 2007), it is impossible to understand the stance until recently of News International executives and lawyers that there was "no evidence" of wider participation of phone hacking.

This is especially the position, as last month's Harbottle & Lewis memorandum to the Select Committee rather helpfully states in passing (in footnote 26, tucked away at page 21), that News International actually instructed the law firm in July 2007 to obtain a full transcript of the sentencing remarks of Mr Justice Gross. (It is always worth reading footnotes.)

Therefore Goodman's letter of 2 March 2007 is important, but the sentencing remarks - of which News International had a transcript by July 2007 - are more telling. There can be no credible doubt that News International, from the sentencing of Goodman onwards, had evidence of wider participation in phone hacking beyond Goodman; if not conclusive evidence, it certainly enough to both warrant further investigation and render any outright denials of evidence as not possible.

However, it was to be Goodman's next letter of that March 2007 which was to have profound consequences for News International and others: indeed, potentially severe consequences which are perhaps yet to be fully felt. And that second letter of March 2007 will be the subject of my future post.

David Allen Green is legal correspondent of the New Statesman.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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The EU-Turkey refugee deal only succeeded in one thing

It swept the humanitarian crisis under the carpet.

The Greek island of Chios is a picturesque holiday resort, and home to some 50,000 Greek residents. The occasional cruise boat moors alongside the fishing boats which populate the main harbour of the island. Tourism and fisheries make up the majority of the island’s economy.  A 7km stretch of sea separates Chios from Turkey. It is so close that you can look across the water and see the lights come on in houses in Çeşme as night falls. This beautiful island is also one of the scene of an unfolding and largely untold humanitarian disaster. It is evidence that the EU-Turkey deal in March, intended to stem the flow of refugees, has failed. 

Chios is home to more than 3,000 asylum seekers. Refugees, mostly from Syria and Afghanistan, make the perilous crossing from Turkey every day. Smugglers launch tiny rubber boats in the middle of the night, over capacity to a dangerous level, to attempt the crossing. One Syrian boy told us that the smuggler on the boat counted down from 10 to calculate when the best time was to purposefully puncture the side of the boat in order to escape the Turkish coastguard, but be rescued from drowning by the Greeks.

As a result of these cavalier strategies, this scenic stretch of water has become the grave of thousands. Those who are rescued by the Turkish authorities rather than Greece are often detained. Such high stakes has not deterred the refugees - one family we knew of had tried 17 times to get to Chios from Turkey. 

The main camp on Chios, "Vial", is at the end of a dusty track and is housed in a disused aluminium factory surrounded by barbed wire. G4S, the private security firm, guards the entrance to the European Asylum Support Office compound. It looks more like a prison than a place of refuge. The majority of the refugees live in metal containers. The camp was constructed to hold 1,100 and now holds approximately twice as many.

Most of the migrants and refugees who arrived in Greece before the EU-Turkey deal have been moved to the mainland, nominally in the hope of relocation elsewhere in Europe. More recent arrivals on Chios (and those simply left behind) have been subject to the hastily-adopted Greek Law 4375/2015, which allows for the lengthy detention of asylum seekers on arrival.

While camps on other Greek islands operate as de facto prisons, on Chios, the police allow refugees to travel around (but not leave) the island. A bus service is provided between Vial and the island’s main city, to allow those housed in unofficial camps to come to Vial for appointments. This is a tacit acknowledgement that makeshift camps are needed for those who cannot be accommodated in Vial’s limited facilities. Thus, the entire island is turned into an open prison camp, with asylum seekers unable to leave until their claims are determined, a process taking upwards of six months. During that time refugees, many of whom have fled from unimaginable horror, are left in an endless waiting game.

In May 2016, a Human Rights Watch report called the refugee “hotspots” on the Greek islands, such as Vial, “unsanitary and unsafe” . By September, when we arrived, the situation had not improved. The conditions in the camps around Chios were shocking. Violence was a daily event - both between asylum seekers and from the frustrated local population. Children, at risk of sexual exploitation and abuse, would simply disappear. We would spend hours searching the camps, armed with lists of unaccompanied minors, asking everyone we saw if they had seen this or that child. Some had already become desperate enough to risk their lives in the hands of human traffickers, in order to escape from the very place where they initially sought sanctuary. Shortly after we left Chios we heard that seven people had suffocated to death in a fridge trying to reach the mainland. Isis were known to be recruiting in the camps. 

Unaccompanied children were left to live together in overcrowded containers, often without enough beds. They would take it in turns to stay awake on guard. Food was often inedible. Access to medical treatment was limited. In Vial, the medical facilities were located inside the disused aluminium factory. To be able to speak to a doctor, you first had to get the permission of the police officers manning the entrance gate. People were sometimes left waiting there for days in the baking heat of summer.

It is no surprise that most of the refugees we met were self-harming, severely depressed and suicidal. It is also no exaggeration to say that everyone we interviewed said they would rather be dead than live in this limbo on Chios. Many of the refugees who arrive in Greece are already seriously traumatised. Large numbers of them are victims of torture, or bereaved or wounded by the Syrian war. Almost all have been forced to flee their homelands because of incomprehensible suffering. The reception they receive in Europe only reinforces their trauma. “I didn’t expect Europe to be like this," a Kurdish Syrian refugee aged 18 told us. His entire family (26 members) had been killed in one bomb blast and he had been subjected to horrific torture under the Assad regime.

We volunteered in the camps on Chios providing legal aid. Any hopes we had on arrival of facilitating the speedy settlement of refugees in Europe were quickly dispelled. The structures in place on Chios for the processing of asylum applications were at breaking point. A tiny team of under-resourced and overworked staff from the Greek Asylum Service and European Asylum Support Organisation try to work through the mammoth backlog of cases, but with officers only conducting two asylum interviews per day each, the process moved at a glacial pace. Every day of infuriating bureaucracy is another day vulnerable people are left in appalling conditions. During this indeterminate period of delay in an individual’s protection claim being processed, the authorities failed to take any steps to disseminate information or timescales which would have minimised the psychological harm caused by the never-ending uncertainty.

So what can be done? A French legal NGO collected the accounts of 51 residents in the camps and applied to the European Court of Human Rights (ECtHR) to oblige Greece to take interim measures to safeguard the refugees from the risk of serious and irreversible harm. This application was quickly dismissed, with the residents being asked to wait (yet again) and abide by the usual procedures (yet again). The case of Raoufi and others v Greece, brought on behalf of several asylum seekers challenging their detention in camps in Greece, is pending before the ECtHR and doesn’t look likely to change the position for refugees in Europe any time soon. 

Some have placed their hopes in the controversial agreement between the European Union and Turkey, signed in March of this year. The heart of the EU-Turkey deal is the return of so-called "irregular migrants" to Turkey. Syrian refugees who reach Turkey are expected to make their asylum claims there and await relocation to Europe. Turkey will then, on a one-for-one basis, take migrants from Europe who have not patiently waited their turn. The supposed lawfulness of such a deal comes from the suggestion that Turkey is a "safe third country" to which to remove refugees. 

The attractiveness of this agreement to the EU, which comes at a cost of several billion euros, is that it may deter refugees from undertaking the dangerous (and politically inconvenient) crossing into Europe. While the European Commission has insisted that the numbers of refugee arrivals has fallen, their assertions are contradicted by aid agencies who point out that the temporary drop in arrivals following the EU-Turkey deal was short-lived. Refugees continue to arrive in large numbers on Chios, to face appalling conditions on reception. Few are returned to Turkey and the promised funding has not yet been provided to Turkey’s satisfaction.

Our experience on Chios was that the EU-Turkey deal is not only not working, it is fundamentally unworkable. Most of the refugees with whom we worked had passed through Turkey on their way to Greece. Almost all had stories of mistreatment in Turkey. In particular, we were told of guards on the Syrian border shooting and wounding at desperate people – including women and small children – attempting to cross into Turkey. Once in Turkey, arbitrary arrest and detention was the norm. Those migrants most likely to be returned to Turkey (because they cannot be returned to their country of origin) are Syrians, for whom Turkey is clearly not a "safe third country". Turkey’s systematic refusal to allow refugees fleeing Syria to cross its border is a clear breach of international law mandating the reception of refugees. Those refugees who manage to slip through into Turkey are left without meaningful protection or support. Kurds are systematically mistreated by the Turkish state while migrants in general face abuse by police, army officials and criminals. Turkey simply is not a safe third country for refugees, as is underlined by the tiny numbers of people found appropriate for return. 

The EU is seeking to resolve its refugee crisis by returning vulnerable people to inhuman conditions in breach of EU member states’ obligations under international law. The assessments as to whether the refugees are returnable to Turkey, are meaningless. Thousands of refugees are waiting for months for these assessments and yet a tiny minority have been found to be appropriate for return. 

In the meantime, a humanitarian disaster unfolds. The physical and mental health of those trapped in the camps deteriorate. Children are left without schooling or proper protection. Violence breaks out. Self-harm rises. Lives are irreparably damaged. Further delay, for political, economic or legal wrangling, is not an option. As long as the European Union fails to act, it remains complicit in these human rights violations. 

Miranda Butler, Maria Moodie, Bryony Poynor and Saoirse Townshend are barristers who recently volunteered in Chios, providing legal aid to refugees.