The two faces of the press on regulation of private investigators

The press defended PIs from regulation, then turned around and asked why they hadn't been regulated.

The revelation that firms from two of this country’s biggest industries may have commissioned corrupt PIs – without facing prosecution – will fuel concerns that corporations potentially involved in the unlawful trade in private information have so far escaped proper investigation

Tom Harper, The Independent, 25th July 2013

There has been a rising volume of consternation in parts of the press about why non-media companies that used private investigators – who have been found to have acted illegally – were not pursued and prosecuted by the authorities.

What none of the reports to date have explored is why many of these cases were not pursued in 2007/08. Instead they have given the impression that the press was unfairly singled out.

The reason why many of these cases were not pursued in 2007/08 was because the press prevented it. It did this by campaigning aggressively and successfully to block the increase of sanctions for this type of crime. Without such an increase it was, the Information Commissioner said, almost impossible to justify the pursuit and prosecution of the culprits, let alone their clients.

To see what happened one has to go back to 2006 and the publication of a report by the Information Commissioner. It was evidence from this report, and other police operations, on which the 2008 SOCA report was based. This is the same SOCA report that has been the focus of so much current attention.

This 2006 report, What Price Privacy?, outlined the scale of the illegal trade in personal information, citing the industrial scale blagging being done on behalf of newspapers, but making clear that the trade was certainly not restricted to the media.

As well as journalists, the report said, illegal information gathering "involved finance companies and local authorities wishing to trace debtors; estranged couples seeking details of their partner’s whereabouts or finances; and criminals intent on fraud or witness or juror intimidation".

The report contained a short section on each these non-media clients, and even specified the amount being spent by some non-media clients:

Documents seized from the tracing agent working for finance houses and local councils revealed that one agent was invoicing for up to £120,000 per month of positive tracing.

The problem, the ICO said, was that even if it pursued and prosecuted the private investigators guilty of gathering and selling this information then "those apprehended and convicted by the courts often face derisory penalties".

These penalties – often only £100 or £150 fines – did not act as a deterrent and did not justify the police, ICO and prosecution time to pursue.

The chief recommendation of the 2006 report was, therefore, that sanctions should be increased so that they would act as a deterrent. At the same time it would make it more justified for the authorities to pursue cases and prosecute the private investigators and their clients.

"The Information Commissioner calls on the Lord Chancellor," What Price Privacy? said, "to bring forward proposals to raise the penalty for persons convicted on indictment of section 55 offences to a maximum two years’ imprisonment, or a fine, or both; and for summary convictions, to a maximum six months’ imprisonment, or a fine, or both"

But when the report was published, the media, rather than focus on the private investigators, the insurance companies or other clients, focused almost exclusively on the potential effect of the increase of sanctions on the media.

In the second report the ICO published in 2006 (What Price Privacy Now?) the Information Commissioner remarked on the media’s response and again stressed that, despite the media’s concerns, the problem went much wider than the press:

Some of the press coverage since the report has highlighted the intrusion into the lives of high profile public figures by the media but it should not be forgotten that this trade also affects the lives of people not in the public eye and is very often unrelated to media activity.

The Commissioner’s efforts were in vain as the press continued to focus, for the following 18 months, almost entirely on the implications of the ICO’s recommendations for the press, and began a campaign to prevent the increase of sanctions.

Leveson describes the consequences of the ICO reports and recommendations:

The first was the mobilisation of a political lobbying effort by the press against the campaign [of the ICO for increased sanctions], directed to the heart of government. The second was the hardening of the attitude of the press (now unmistakably represented by the PCC) towards the ICO.

p.1024, Vol.3

Two of leaders of the press campaign, according to the Leveson report, were Murdoch McClellan (then Chief Executive of the Telegraph Group) and Guy Black (also at the Telegraph Group).

In the summer of 2007 the editor of the Daily Mail (Paul Dacre), Murdoch McClellan of the Telegraph and the Les Hinton of News International had dinner with the Prime Minister, Gordon Brown, to persuade him to help them stop the increase in sanction going through.

The campaign stepped up its efforts through early 2008 with some media interests "lobbying the Conservatives heavily in favour of removal" of the amendment to the law to increase the sanction (quote from the Information Commissioner, 25 March 2008).

Leveson was scathing about the objectives of this campaign:

The argument that the prospect of custody would have a differential "chilling" effect on lawful and ethical journalism from the prospect of a financial penalty is one which it is barely respectable for national press organisations to advance at all. Its necessary implication is that the prospect of a criminal conviction can, of itself, be regarded as a tolerable business risk, and a criminal fine a tolerable overhead, in journalism. This says little more than that "unchilled" journalism is an activity which takes calculated risks with deliberate and indefensible criminality. This is an argument for criminal impunity including (as it was put before the Inquiry) by way of a plea for indemnity from the otherwise universal application of criminal penalties; it amounts to special pleading to be placed above the law.

p.1091, Vol.3

Yet the press campaign was successful. Even though the amendments were drafted in section 77 of the Criminal Justice and Immigration Act, they were never commenced. They have still not commenced.

As a consequence, the authority responsible for pursuing cases of blagging and related offences – the ICO, continued to be severely constrained in the action it could take.

Certain news organisations, in other words, effectively prevented the pursuit of organisations that were illegally acquiring personal information in 2007/08 and onwards. These same news organisations are now claiming the failure to pursue these organisations is evidence of an unfair singling out of the press through the Leveson Inquiry.

The Leveson inquiry. Photograph: Getty Images
Matt Cardy/Getty Images
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Former MP Bob Marshall-Andrews: Why I’m leaving Labour and joining the Lib Dems

A former political ally of Jeremy Corbyn explains why he is leaving Labour after nearly 50 years.

I’m leaving home. It’s a very hard thing to do. All of my natural allegiances have been to Labour, and never had I contemplated leaving the party – not even in the gloomy years, when we were fighting Iraq and the battles over civil liberties. I have always taken the view that it’s far better to stay within it. But it has just gone too far. There has been a total failure to identify the major issues of our age.

The related problems of the environment, globalisation and the migration of impoverished people are almost ignored in favour of the renationalisation of the railways and mantras about the National Health Service. The assertion that Labour could run the NHS better than the Tories may be true, but it is not the battle hymn of a modern republic. It is at best well-meaning, at worst threadbare. I don’t want to spend the rest of my life talking about renationalising the railways while millions of people move across the world because of famine, war and climate change.

The centre left in British politics is in retreat, and the demise of the Labour Party has the grim inevitability of a Shakespearean tragedy. Ironically, history will show that Labour’s fatal flaw lay in its spectacular success.

Labour is, in essence, a party of the 20th century, and in those 100 years it did more to advance the freedom and well-being of working people and the disadvantaged than any other political movement in history. The aspirations of the founding fathers – access to education, health and welfare; equality before the law; collective organisation; universal franchise – have all to a large extent been achieved. The party’s record of racial and religious tolerance has been a beacon in a century of repression. These achievements have been enshrined in the fabric of British society and reproduced across the world.

The success brought deserved, unprecedented power and created political fortresses across the industrial heartlands of Britain. But with power, the party became increasingly moribund and corrupt. The manipulation of the union block vote at party conferences became a national disgrace. The Labour heartlands, particularly Scotland, were treated like rotten boroughs, and were too often represented by union placemen.

Instead of seeking a new radicalism appropriate to the challenges of the age, New Labour sought to ambush the Tories on the management of market capital and to outflank them on law and order: a fool’s errand. It inevitably succumbed to another form of corruption based on hubris and deceit, resulting in attacks on civil liberty, financial disaster and catastrophic war.

The reaction has been to lurch back to the status quo. The extraordinary fall from a massive majority of 179 in 1997 to a political basket case has been blamed on the false dichotomy between Blairism and the old, unionised Labour. Both have contributed to the disaster in equal measure.

I believe desperately in the politics of the 21st century, and Labour is at best paying lip service to it – epitomised in its failure to engage in the Brexit debate, which I was horrified by. The Liberal Democrats are far from perfect, but they have been consistent on Europe, as they were in their opposition to the Iraq War and on civil liberties. They deserve support.

But it’s a serious wrench. I’m leaving friends, and it hurts. Jeremy Corbyn was a political ally of mine on a number of serious issues. We made common cause on Tony Blair’s assaults on civil liberty and the Iraq War, and we went to Gaza together. He has many of the right ideas, but he simply has not moved into addressing the major problems.

To be blunt, I don’t think Corbyn is leadership material, but that is aside from politics. You need skills as a leader, and I don’t think he’s got them, but I was prepared to stick it out to see what happened. It has been a great, gradual disappointment, and Brexit has brought it all to the fore.

Frankly, I was surprised that he announced he was a Remainer, because I know that his natural sympathies have lain with a small cadre within Labour – an old-fashioned cadre that holds that any form of trade bloc among relatively wealthy nations is an abhorrence. It’s not: it’s the way forward. Yet there are people who believe that, and I know he has always been sympathetic to them.

But by signing up and then doing nothing, you sell the pass. Labour was uniquely qualified to confront the deliberate falsehoods trumpeted about the NHS – the absurd claims of massive financial dividends to offset the loss of doctors
and nurses already packing their bags – and it failed. Throughout that campaign, the Labour leadership was invisible, or worse.

At present, there is a huge vacuum on the centre left, represented in substantial part by an angry 48 per cent of the electorate who rejected Brexit and the lies on which it was based. Politics, like nature, abhors a vacuum. There is no sign from Labour that the issue is even to be addressed, let alone actively campaigned on. The Labour leadership has signed up to Brexit and, in doing so, rejected the principles of international co-operation that Europe has fostered for half a century. That is not a place I want to be.

The failure to work with, or even acknowledge, other political parties is doctrinaire lunacy. And it will end very badly, I think. The centre left has an obligation to coalesce, and to renege on that obligation is reneging on responsibility. Not to sit on the same platform as other parties during the Brexit debate is an absurd statement of political purity, which has no place at all in modern politics.

The Liberal Democrats have grasped the political challenges of the 21st century as surely as their predecessors in the Liberal Party failed to comprehend those that faced the world a century ago. For that reason, I will sign up and do my best to lend support in my political dotage. After nearly 50 years as a Labour man, I do so with a heavy heart – but at least with some radical hope for my grandchildren.

Bob Marshall-Andrews was the Labour MP for Medway from 1997 to 2010.

As told to Anoosh Chakelian.

This article first appeared in the 27 April 2017 issue of the New Statesman, Cool Britannia 20 Years On

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