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
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In the 1980s, I went to a rally where Labour Party speakers shared the stage with men in balaclavas

The links between the Labour left and Irish republicanism are worth investigating.

A spat between Jeremy Corbyn’s henchfolk and Conor McGinn, the MP for St Helens North, caught my ear the other evening. McGinn was a guest on BBC Radio 4’s Westminster Hour, and he obligingly revisited the brouhaha for the listeners at home. Apparently, following an interview in May, in which McGinn called for Corbyn to “reach out beyond his comfort zone”, he was first threatened obliquely with the sack, then asked for a retraction (which he refused to give) and finally learned – from someone in the whips’ office – that his party leader was considering phoning up McGinn’s father to whip the errant whipper-in into line. On the programme, McGinn said: “The modus operandi that he [Corbyn] and the people around him were trying to do [sic], involving my family, was to isolate and ostracise me from them and from the community I am very proud to come from – which is an Irish nationalist community in south Armagh.”

Needless to say, the Labour leader’s office has continued to deny any such thing, but while we may nurture some suspicions about his behaviour, McGinn was also indulging in a little airbrushing when he described south Armagh as an “Irish ­nationalist community”. In the most recent elections, Newry and Armagh returned three Sinn Fein members to the Northern Ireland Assembly (as against one Social Democratic and Labour Party member) and one Sinn Fein MP to Westminster. When I last looked, Sinn Fein was still a republican, rather than a nationalist, party – something that McGinn should only be too well aware of, as the paternal hand that was putatively to have been lain on him belongs to Pat McGinn, the former Sinn Fein mayor of Newry and Armagh.

According to the Irish News, a “close friend” of the McGinns poured this cold water on the mini-conflagration: “Anybody who knows the McGinn family knows that Pat is very proud of Conor and that they remain very close.” The friend went on to opine: “He [Pat McGinn] found the whole notion of Corbyn phoning him totally ridiculous – as if Pat is going to criticise his son to save Jeremy Corbyn’s face. They would laugh about it were it not so sinister.”

“Sinister” does seem the mot juste. McGinn, Jr grew up in Bessbrook during the Troubles. I visited the village in the early 1990s on assignment. The skies were full of the chattering of British army Chinooks, and there were fake road signs in the hedgerows bearing pictograms of rifles and captioned: “Sniper at work”. South Armagh had been known for years as “bandit country”. There were army watchtowers standing sentinel in the dinky, green fields and checkpoints everywhere, manned by some of the thousands of the troops who had been deployed to fight what was, in effect, a low-level counter-insurgency war. Nationalist community, my foot.

What lies beneath the Corbyn-McGinn spat is the queered problematics of the ­relationship between the far left wing of the Labour Party and physical-force Irish republicanism. I also recall, during the hunger strikes of the early 1980s, going to a “Smash the H-Blocks” rally in Kilburn, north London, at which Labour Party speakers shared the stage with representatives from Sinn Fein, some of whom wore balaclavas and dark glasses to evade the telephoto lenses of the Met’s anti-terrorist squad.

The shape-shifting relationship between the “political wing” of the IRA and the men with sniper rifles in the south Armagh bocage was always of the essence of the conflict, allowing both sides a convenient fiction around which to posture publicly and privately negotiate. In choosing to appear on platforms with people who might or might not be terrorists, Labour leftists also sprinkled a little of their stardust on themselves: the “stardust” being the implication that they, too, under the right circumstances, might be capable of violence in pursuit of their political ends.

On the far right of British politics, Her Majesty’s Government and its apparatus are referred to derisively as “state”. There were various attempts in the 1970s and 1980s by far-right groupuscules to link up with the Ulster Freedom Fighters and other loyalist paramilitary organisations in their battle against “state”. All foundered on the obvious incompetence of the fascists. The situation on the far left was different. The socialist credentials of Sinn Fein/IRA were too threadbare for genuine expressions of solidarity, but there was a sort of tacit confidence-and-supply arrangement between these factions. The Labour far left provided the republicans with the confidence that, should an appropriately radical government be elected to Westminster, “state” would withdraw from Northern Ireland. What the republicans did for the mainland militants was to cloak them in their penumbra of darkness: without needing to call down on themselves the armed might of “state”, they could imply that they were willing to take it on, should the opportunity arise.

I don’t for a second believe that Corbyn was summoning up these ghosts of the insurrectionary dead when he either did or did not threaten to phone McGinn, Sr. But his supporters need to ask themselves what they’re getting into. Their leader, if he was to have remained true to the positions that he has espoused over many years, should have refused to sit as privy counsellor upon assuming his party office, and refused all the other mummery associated with the monarchical “state”. That he didn’t do so was surely a strategic decision. Such a position would make him utterly unelectable.

The snipers may not be at work in south Armagh just now – but there are rifles out there that could yet be dug up. I wouldn’t be surprised if some in Sinn Fein knew where they are, but one thing’s for certain: Corbyn hasn’t got a clue, bloody or otherwise. 

Will Self is an author and journalist. His books include Umbrella, Shark, The Book of Dave and The Butt. He writes the Madness of Crowds and Real Meals columns for the New Statesman.

This article first appeared in the 25 August 2016 issue of the New Statesman, Cameron: the legacy of a loser