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Hanff-Consent to Prosecute RIPA Let to Mr Hanff (8th April 11)

Hanff-Consent to Prosecute RIPA Let to Mr Hanff (8th April 11)

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Published by AlexanderHanff
Final decision by the CPS on whether or not to prosecute Phorm and BT for intercepting BT Broadband subscribers' online communications for commercial purposes.
Final decision by the CPS on whether or not to prosecute Phorm and BT for intercepting BT Broadband subscribers' online communications for commercial purposes.

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Categories:Types, Letters
Published by: AlexanderHanff on Apr 08, 2011
Copyright:Attribution Non-commercial


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The CPS incorporates RCPO
Mr. Alexander Hanff Also by email 8
April 2011
Our ref: AH/lcl
Dear Mr. Hanff 
Re: Consent to Prosecute Alleged Offences under Section 1 of the Regulation of Investigatory Powers Act 2000
I write further to earlier correspondence about this matter. I last wrote to you on 9
December 2010 when I explained that the matter was under consideration at a senior level. I am now in a position to inform you of the Crown Prosecution Service’s chargingdecision. Before I do so it may assist you if I briefly explain once more the decisionmaking process noting that a colleague wrote to you back in October 2008, setting outthis position in greater detail.Our decision follows earlier correspondence in which you sought consent for a privateprosecution for alleged offences contrary to Section 1 of RIPA 2000 which requires theconsent of the Director of Public Prosecutions. When the Director’s consent is sought,such consent will only be granted if both stages of the Full Code Test, set out under theCode for Crown Prosecutors, are satisfied. It is only if both stages of the Test aresatisfied that the Director will grant consent.Where consent is necessary for a private prosecution and the Director gives his consentto prosecute it is the CPS’s policy to take over the conduct of the prosecution (inaccordance with Section 6(2) of the Prosecution of Offences Act 1985) or in a case suchas this to commence the prosecution.The evidence has been very carefully considered in this case. A number of reviews havetaken place and as a result, the City of London Police has conducted further enquiriesand has obtained relevant expert evidence. The evidence submitted by you togethewith the additional material, including the expert evidence, and material submitted byother bodies has been carefully considered.We have considered this matter fully and in accordance with both stages of the Full CodeTest under the Code for Crown Prosecutors. We have decided that this is not an
Crown Prosecution Service, Complex Casework Centre, Special Casework Team,2
Floor, The Cooperage, 8 Gainsford Street, London SE1 2NE, DX: 80712 Bermondsey
appropriate case for the Director of Public Prosecutions to grant his consent to aprosecution.I know this will come as a disappointment to you and I do not anticipate that you willagree with our decision. It may however assist you if I explain how this decision hasbeen reached.In September 2008 you wrote to the DPP seeking consent for a private prosecution of BTand/or Phorm for an alleged breach of Section 1 of RIPA.The matter had originally been investigated by the City of London Police who had takenno further action.The matter was passed to CPS London for a decision. Expert evidence was obtained.Further enquiries were carried out by the police, Counsel’s advice sought and obtained,and conferences held. Further enquiries were carried out by the police at the request of the CPS and responseshave been received from BT, Phorm, OFCOM, OFT and the Information Commissioner’sOffice in response to further police enquiries.The results of these enquiries have been carefully considered and there is still insufficientevidence to commence a prosecution against BT or Phorm. The position is:(i) There is insufficient evidence currently available to satisfy the evidential stage of the Full Code Test.(ii) The broad extent of the alleged criminality can be determined.(iii) A fully formed assessment of public interest is possible at this stage.It is apparent that very considerable further work of investigation would be necessary if further consideration of the evidential stage were to take place. If the material obtainedwas admissible in evidence and was sufficient to satisfy the evidential stage, the questionwould ordinarily then arise whether or not a prosecution was required in the publicinterest.In the vast majority of cases prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has beenreviewed.However the Code provides at paragraph 4.2 that there may be cases where it is clear prior to collection and consideration of all the likely evidence the public interest does notrequire a prosecution. In these rare instances Prosecutors may decide that the caseshould not proceed further. I consider this to be such a case.Even if the evidential stage was satisfied, it would also be necessary to satisfy the publicinterest stage.Even if the case proceeded and a conviction obtained, this would not be likely to result ina significant sentence.
(i) The suspects took a considerable amount of legal advice prior to commencing thetrial.(ii) The trial was planned; there is insufficient evidence to suggest that there was pre-meditation to commit an offence (Code 4.16). Legal advice was obtained both byBT and Phorm.The suspects were in possession of authority or trust (Code paragraph 4.16n). Theevidence does not suggest that they were seeking to specifically take advantage of thatposition.Code 4.16(r) – Some members of the community may consider a prosecution as importantto maintain community confidence. However there has been regulatory intervention andthe ICO concluded that there was “no evidence to suggest significant detriment to theindividuals involved”. BT and Phorm have cooperated with the police in the investigation.Code paragraph 4.16(s) – there are no grounds for believing the offence is likely to becontinued or repeated.As to the common public interest factors tending against prosecution:Code 4.17(h) – is not a factor against prosecution. If the evidential test was passed itcould not be said that BT or Phorm played only a minor role. They are the principalsuspects.Code e.17 (a) and (c) – Taking into account all the circumstances a court would be likelyto impose a nominal penalty and not a substantial one. There has been appropriateregulatory intervention. The regulatory body did not take any proceedings.Code 4.17(d) and (e) – Given the amount of legal advice sought by BT and Phorm, if anoffence was committed it could be reasonably argued to have been committed as thebasis of a genuine mistake or misunderstanding or a misjudgement.Code 4.17(i) both BT and Phorm received considerable legal advice. BT decidedbecause of doubts to adopt the most conservative legal advice received and inaccordance with that conducted a third and public trial in 2008. There is uncertaintywhether or not any loss or harm was caused. BT took a cautious approach which isindicative of their desire to act in a proper and responsible manner in the face of legaluncertainty.ECHR considerations – whilst is provable there may have been a breach of Article 8 thelimited scope of such a possible breach does not in itself demand (if the Evidential Testwere passed) that a prosecution be brought. The ICO enquiry looking into the issue of privacy concluded that there was no evidence to suggest significant detriment toindividuals involved nor did it take any legal proceedings.Your views and also the views of others have been taken into account in my Review.Your views, genuinely held and important as they are, are not alone a determining factor into whether or not a prosecution should be brought, even if the evidential test weresatisfied. We have, though, fully considered them.

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