The CPS incorporates RCPO
PRIVATE AND CONFIDENTIAL Mr. Alexander Hanff Also by email
8th 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 9th 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 charging decision. Before I do so it may assist you if I briefly explain once more the decision making process noting that a colleague wrote to you back in October 2008, setting out this position in greater detail. Our decision follows earlier correspondence in which you sought consent for a private prosecution for alleged offences contrary to Section 1 of RIPA 2000 which requires the consent 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 the Code for Crown Prosecutors, are satisfied. It is only if both stages of the Test are satisfied that the Director will grant consent. Where consent is necessary for a private prosecution and the Director gives his consent to prosecute it is the CPS’s policy to take over the conduct of the prosecution (in accordance with Section 6(2) of the Prosecution of Offences Act 1985) or in a case such as this to commence the prosecution. The evidence has been very carefully considered in this case. A number of reviews have taken place and as a result, the City of London Police has conducted further enquiries and has obtained relevant expert evidence. The evidence submitted by you together with the additional material, including the expert evidence, and material submitted by other bodies has been carefully considered. We have considered this matter fully and in accordance with both stages of the Full Code Test under the Code for Crown Prosecutors. We have decided that this is not an
Crown Prosecution Service, Complex Casework Centre, Special Casework Team, 2nd 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 a prosecution. I know this will come as a disappointment to you and I do not anticipate that you will agree with our decision. It may however assist you if I explain how this decision has been reached. In September 2008 you wrote to the DPP seeking consent for a private prosecution of BT and/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 taken no 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 responses have been received from BT, Phorm, OFCOM, OFT and the Information Commissioner’s Office in response to further police enquiries. The results of these enquiries have been carefully considered and there is still insufficient evidence to commence a prosecution against BT or Phorm. The position is: (i) (ii) (iii) There is insufficient evidence currently available to satisfy the evidential stage of the Full Code Test. The broad extent of the alleged criminality can be determined. 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 obtained was admissible in evidence and was sufficient to satisfy the evidential stage, the question would ordinarily then arise whether or not a prosecution was required in the public interest. 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 been reviewed. 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 not require a prosecution. In these rare instances Prosecutors may decide that the case should 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 public interest stage. Even if the case proceeded and a conviction obtained, this would not be likely to result in a significant sentence.
The suspects took a considerable amount of legal advice prior to commencing the trial. The trial was planned; there is insufficient evidence to suggest that there was premeditation to commit an offence (Code 4.16). Legal advice was obtained both by BT and Phorm.
The suspects were in possession of authority or trust (Code paragraph 4.16n). The evidence does not suggest that they were seeking to specifically take advantage of that position. Code 4.16(r) – Some members of the community may consider a prosecution as important to maintain community confidence. However there has been regulatory intervention and the ICO concluded that there was “no evidence to suggest significant detriment to the individuals 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 be continued 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 it could not be said that BT or Phorm played only a minor role. They are the principal suspects. Code e.17 (a) and (c) – Taking into account all the circumstances a court would be likely to impose a nominal penalty and not a substantial one. There has been appropriate regulatory 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 an offence was committed it could be reasonably argued to have been committed as the basis of a genuine mistake or misunderstanding or a misjudgement. Code 4.17(i) – both BT and Phorm received considerable legal advice. BT decided because of doubts to adopt the most conservative legal advice received and in accordance with that conducted a third and public trial in 2008. There is uncertainty whether or not any loss or harm was caused. BT took a cautious approach which is indicative of their desire to act in a proper and responsible manner in the face of legal uncertainty. ECHR considerations – whilst is provable there may have been a breach of Article 8 the limited scope of such a possible breach does not in itself demand (if the Evidential Test were 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 to individuals 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 were satisfied. We have, though, fully considered them.
Legal Certainty (and legal uncertainty) – this in itself would not be a defence to charges but the Act is extremely complex and is open to a variety of interpretations. The fact that legal advice was sought and that there were divergent views would be a powerful mitigating factor in the event of a prosecution going directly to the question of the likelihood that a significant penalty would be imposed. Conclusions On the material currently available there is insufficient evidence to give rise to a realistic prospect of a conviction. We cannot therefore recommend the Director give his consent to a private prosecution. In applying the Code for Crown Prosecutors there is sufficient material available to make a fully informed assessment of the public interest at this time. The public interest factors tending against prosecution outweigh those tending in favour, and even if the considerable evidential hurdles could be overcome and addressed by further investigation, it is clear that at this stage that a prosecution is not required in the public interest. Therefore in accordance with the Code for Crown Prosecutors the Director does not give his consent to a private prosecution in this case. Yours sincerely,
Andrew Hadik Special Casework Lawyer