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By Professor Ian Walden

Over the past two years there has been much furore over journalists accessing the voicemail of celebrities and other newsworthy people, particularly the scandal involving Milly Dowler. As a result of the subsequent police investigation, ‘Operation Weeting’, some 24 people have since been arrested and the first charges were brought by the Crown Prosecution Service in July 2012 against eight people, including Rebekah Brooks and Andy Coulson. The leading charge was one of conspiracy “to intercept communications in the course of their transmission, without lawful authority.” But what does ‘phone hacking’ mean and has the CPS got it right?

The charge, under section 1 of the Criminal Law Act 1977, relates to an offence under the ominously worded Regulation of Investigatory Powers Act 2000 (‘RIPA’), section 1(1). The RIPA is primarily concerned with the powers of law enforcement agencies to investigate criminality by listening into phone calls and other types of covert surveillance. The Act also criminalises the interception of communication by others, including journalists.

When drafting the 2000 Act, one of the objectives was to update the law of interception to reflect developments in modern telecommunication systems and services, especially email. One element of that reform was to recognise that telecommunication systems sometimes store messages on behalf of the intended recipient, to enable them to collect the message at their convenience. In such circumstances, according to section 2(7) of the RIPA, the communications shall be considered still ‘in the course of transmission’. One key issue to be decided in the forthcoming ‘phone hacking’ cases is therefore whether listening to somebody’s voicemail message falls within this exception.

So why does uncertainty arise? The issue for the court to decide is whether a distinction should be made between accessing voicemail messages that have been listened to by the intended recipient and those that have yet to be heard. In the former case, it can be argued, the communication is at an end and the voicemail service is simply being used as a storage medium. As such, no act of ‘interception’ has taken place.

Answering this seemingly simple question of interpretation is made more complex as a result of an apparent change of position on the part of the CPS. In November 2009, Keir Starmer QC, Director of Public Prosecutions, gave evidence before the Culture, Media and Sports Committee about the meaning of section 2(7). He argued, on the basis of the observations of Lord Woolf CJ in R (on the application of NTL) v Ipswich Crown Court [2002], that the provision should be interpreted narrowly, such that a message was only ‘in the course of transmission’ until it had been collected by the intended recipient. This statement led to a very public disagreement between Keir Starmer and John Yates, the then Acting Deputy Commissioner of the Metropolitan police, who argued for a wide interpretation of section 2(7). By July 2011, however, the CPS had committed a volte-face and decided to “proceed on the assumption that a court might adopt a wide interpretation.”

As a consequence of this legal uncertainty, there would appear to be a very real chance that the coming prosecutions may fail. As well as the considerable waste of police resource that would result, and the adverse impact on public confidence, this reliance on the crime of ‘interception’ seems unnecessary, as suggested by the moniker ‘phone hacking’. An alternative charge would seem to be available under section 1 of the Computer Misuse Act 1990, for ‘unauthorised access to computer material’. This was the original ‘hacking’ statute, and the offence carries the same maximum tariff as that for unlawful interception, i.e. two years imprisonment. There can be no question that a voicemail service is held on a ‘computer’, while it would seem relatively easy to show that the perpetrator, which can include both the private investigator and the requesting journalist, knew that such access was unauthorised.

The rationale for pursuing journalists for ‘intercepting’ rather than ‘hacking’ phones is not immediately clear, but the outcome of the forthcoming cases may simply represent another sorry stage in the long running saga of newspaper phone hacking.

Ian Walden is Professor of Information and Communications Law at the Centre for Commercial Law Studies, Queen Mary, University of London. His publications include Computer Crimes and Digital Investigations (2007), Media Law and Practice (2009) and Telecommunications Law and Regulation (4^th ed., 2012). Ian is a solicitor and Of Counsel to Baker & McKenzie.

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By John Bowen

James Murdoch will today be hauled over the coals once more, by a House of Commons select committee determined to find out exactly what lay at the bottom of the phone-hacking affair. It has all the best ingredients of a modern political story – a too close relationship of politicians and press; a secret world of networking and influence now dragged, kicking and screaming, into the light; secret payments, cover-ups, and public outrage; and a strong whiff, not to say stench, of corruption in the air. The story of the ex-policeman, now a private investigator, detailed to pursue the lawyers of Milly Dowler in the hope of unearthing something discreditable or scandalous, is only the latest twist in what seems a peculiarly modern spiral of press misbehaviour and political greed.

The Murdoch affair seems the most contemporary of stories, chock-full of hacked mobile phones, high-tech surveillance equipment and secret video-recordings. But although the technology might have changed, it is a world that would have been only too familiar to nineteenth-century author Anthony Trollope. He was as fascinated as we are by what lies behind the public face of politics: the personal passions, rivalries and love affairs, the ins and outs of office, the spectacular rises and equally rapid falls.

It’s been a strange and revealing business, editing and living with Anthony Trollope’s 1873 Palliser novel, Phineas Redux, over the past couple of years. In one way, the Palliser novels seem to come from a world immeasurably distant from our own – aristocrat-run, high-imperial Britain before universal suffrage, motor cars and telephones, let alone the 24-hour news cycle that today’s politicians have learned to live with. But then again, the Palliser world very often seems strangely familiar, and not simply because the parliamentary rituals and furniture seem to have changed so little over the past century and a half. Almost daily throughout the editing process I would turn from thinking about Phineas’s complex love life, or Mr Daubeny’s machinations to stay in office, to the day’s news stories with a wry smile of recognition.

Trollope is sometimes wrongly thought to be a rather soothing or comforting writer, an old pair of slippers or the kind of Trollope a male politician could admit to cuddling up with in perfect safety. If that’s your view, Phineas Redux will make you think again. Not long before, Trollope, who had always wanted a parliamentary career, had stood as a Liberal candidate for Beverley in East Yorkshire. He came bottom in the poll and the corruption and inanity of electioneering disgusted him. The insight and disillusionment that followed fuels the novel, a story about a young politician in the making, who finds himself entangled in a nasty political quarrel that turns even nastier when his hated rival, with whom he has just very publicly quarrelled, is found dead, stabbed in a back alley. It’s not the first bit of violence in the book; a little earlier Phineas himself has been shot at by the enraged and half-mad husband of his intimate (but not too intimate) friend Lady Laura Kennedy (the bullet missed, or the book would have had to end there). By the time we get our hero safely to the end of the book and into the loving arms of the mysterious heiress Madame Max, he and we have also survived a corrupt election, accusations of bribery and electoral malpractice, alleged adultery and a secret investigation into bigamy in Poland. These adventures climax in a legal and political battle fought out over the publication of a private letter in the press, which claims to rev

The News of the World phone hacking scandal has hit the book industry, with the revelation that private material relating to individuals within the trade has been discovered by police during "Operation Weeting".

Both agent Peter Cox and publisher John Blake have confirmed that their personal details have been turned up by the Metropolitan Police as part of its investigations into illegal surveillance operations by the now defunct Sunday paper.

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By Simon Chesterman

The ongoing police investigation into phone-hacking in Britain by the tabloid News of the World has revealed the widespread use of surveillance techniques by private actors, with predictable outrage expressed at the violations of privacy. Yet the recent inquiries only began in earnest after a major story in the New York Times.

This is the paradox of today’s media: investigative journalism is often key to revealing abuses of surveillance powers, yet the commercial reality of today’s market drives unscrupulous journalists themselves towards ever more dubious methods.

That market has been radically altered by the “new media”, with WikiLeaks as its poster-child — ably exploiting the Internet’s capacity for widespread dissemination of data, but at the expense of credible efforts at analysis or minimizing the potential harm to named individuals. It is “journalism” by quantity rather than quality.

These two trends — muck-raking and unfiltered dissemination — become all the more serious when linked to the extraordinary tools of surveillance available to government and, increasingly, private actors.

The spread of surveillance powers through Britain has long puzzled outside observers. On the one hand, Britain is a rare example of a country that developed a comprehensive identity card regime during the Second World War and then dismantled it after the conclusion of hostilities — apparently to the dismay of many in law enforcement circles. Later in the century, however, the absence of constitutional protections of rights, a general belief in the benevolence of government, and episodes like the 1993 James Bulger murder encouraged the growth of a sophisticated surveillance state.

Britain now enjoys the highest concentration of CCTV cameras in the world, manages the London Congestion Charge by recording details of every car entering and leaving the capital, and stores DNA samples from an ever growing proportion of the population.

In the 2010 general election, Britain’s Conservative Party campaigned on a platform of scrapping plans for an identity card that would have been linked to a National Identity Register. Interestingly, the arguments that resonated with the public had less to do with privacy concerns than the expense involved, doubts about government competence to manage the data, and a general wariness that the whole enterprise looked a little too “European”.

Does this mean that Britons do not care about privacy? Certainly not. But as in many other countries it is hard to reconcile the apparent sincerity of individuals claiming to be concerned about their privacy with the nonchalant behaviour of those same individuals in revealing personal information voluntarily or engaging in activities where there is manifestly no reasonable expectation to privacy.

This is not limited to teenagers. The current head of MI6, Sir John Sawers, was embarrassed by photos that his wife posted on Facebook in 2009 revealing the location of their London flat and the whereabouts of their three adult children. Last October his daughter uploaded a suggestive photograph of herself holding a golden Kalashnikov — quickly cut and pasted from Facebook to the Mirror.

There is, however, a generational element to attit

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By Simon McKay

In 1928 the iconic United States Supreme Court Justices Holmes and Brandeis dissented in a judgment that ruled the product of telephone conversations derived from “wiretapping” admissible. With characteristic eloquence, Mr Justice Brandeis held that “the confined criminal is as much entitled to redress as his most virtuous fellow citizen; no record of crime, however long, makes one an outlaw”. The judges could be forgiven for thinking that, at least in terms of the English law, eighty years on, things haven’t changed much.

There is a connection between the phone hacking row, which appears to be the preserve of celebrities who fear their calls may have been listened into and the changes to control orders, inelegantly re-named Terrorism Prevention and Investigatory Measures. On the one hand, there is a gaggle of media lawyers and their clients complaining that the Metropolitan Police has failed to take action against individuals eavesdropping on the most private of conversations and on the other the same material is secretly relied upon by the State to confine individuals, who have not been convicted of any offence, to effective house arrest and to impose other Orwellian sanctions. The apparent juxtaposition becomes manifest; the police and agencies rely on the material to counter terrorism, yet appear impotent in terms of investigating allegations of what is given the seemingly neutral term of phone hacking.

There needs to be some attempt to de-mystify what is meant by phone hacking, sometimes referred to as phone tapping. It is clear that practically what is meant is eavesdropping on voicemail messages.

Previously the police have asserted they could not rely on the evidence provided on the ground that it is not admissible. This is a reference to a legal provision in the Regulation of Investigatory Powers Act 2000 that prohibits the use of intercept product in court proceedings. However, it has been misunderstood. The prohibition largely relates to product of intercept warrants that the State obtains to protect national security and investigate other threats as well as serious crime – this is why terror suspects aren’t prosecuted in the criminal courts – the intelligence implicating them cannot be used for this purpose. It expressly does not apply where an illegal interception has occurred.

But is a third party listening to a voicemail an interception? The simple answer is that it might be, particularly if it has not been listened to (if it is, it is a criminal offence) but if it is not, it is almost certainly an offence under the Computer Misuse Act 1990. Where such offences may have been committed there is no question that the incident and evidence of interception or hacking is admissible and capable of being used by the police. Even if there was an argument to the contrary, the consent of the “victim” alleviates any remaining difficulty concerning the issue (if an individual consents to their calls being intercepted the prohibition on admissibility no longer applies).

To fair to the police, the highest courts in the land have found the question of what may amount to an interception “particularly puzzling” and the legislation “difficult to understand”. It is almost impenetrable but that is not really any excuse.

Add to this the fact that the law in this area is under review (again). A cynic could muse what all the fuss is about; surely the simplest thing would be to make the product of intercept admissible, even i