Session 2010-11
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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 907-i

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

Home Affairs Committee

Unauthorised Tapping Into or Hacking of Mobile Communications

Tuesday 29 March 2011

Chris Bryant

JOHN YATES

Evidence heard in Public Questions 1 - 89

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 29 March 2011

Members present:

Keith Vaz (Chair)

Mr James Clappison

Dr Julian Huppert

Steve McCabe

Bridget Phillipson

Mark Reckless

Mr David Winnick

________________

Examination of Witnesses

Witness: Chris Bryant, MP, gave evidence.

Q1 Chair: This session deals with the Committee’s ongoing inquiry into phone hacking, and we have before us Mr Chris Bryant, Member of Parliament, who in the House a few weeks ago made a statement that one of our witnesses to the inquiry had misled the Committee. Thank you for coming to give evidence today, Mr Bryant. The Committee is most grateful.

Would you like to comment on what the witness said to the Culture, Media and Sport Committee? Does it satisfy you that, in fact, the statement that you made was incorrect and that he did not, in fact, mislead this Committee?

Chris Bryant: I am very grateful, Mr Vaz, for the opportunity to be here today. If I might just read a brief statement in relation to the comments that were made by Mr Yates last week. Might I start by saying I warmly commend the new investigation that is being led by Sue Akers. I think that they are pursuing the evidence in the way that it should have been pursued in 2006, and I commend them for it.

Mr Yates has always maintained that there were very few victims of Glenn Mulcaire’s News of the World-sponsored phone hacking, yet a briefing paper written by Scotland Yard, dated 30 May 2006, said that, "A vast number of unique voicemail numbers belonging to highprofile individuals, politicians and celebrities have been identified as being accessed without authority". Mr Yates also told this Committee on 7 September 2010 that there is no evidence that Members of Parliament had their phones tapped, and yet at least eight MPs that I am aware of have now been shown evidence that has been in police possession since 2006 that shows precisely that.

Mr Yates maintained that all victims have been notified. The words he used in September 2009 were that, "Where we have evidence that people have been the subject of any form of phone tapping, or that there is any suspicion that they might have been they were informed", yet they failed to inform Jo Armstrong, Sienna Miller, Kelly Hoppen and John Prescott, in relation to all of whom there is now clear evidence that their phones were hacked.

Let me turn to the issue of what constitutes an offence. Mr Yates has always maintained that an offence has only been committed if someone listens to a voicemail message without authority before the person for whom it was intended and that that has been the consistent legal advice. It is true that in the very early days a lawyer at the Crown Prosecution Service may indeed have advised this. However, the Director of Public Prosecutions has made it clear that this point had no bearing-I am quoting-on the charges brought against the defendants Mulcaire and Goodman or the legal proceedings generally. The transcript of the sentencing hearing shows the prosecuting counsel in the Goodman and Mulcaire case, David Perry QC, never relied on this tight definition. Indeed, Perry expressly wrote to the Crown Prosecution Service on 3 October 2006 that all they had to prove was that the message had been listened to by Mulcaire, not that the message was-

Q2 Chair: May I stop you there, because I think Members of the Committee will be questioning you on these matters? This is a very narrow and short session dealing with one aspect of this case. The Committee is not going into great detail today about all aspects of the case. It is specifically about the issue of misleading because this Committee takes a very, very serious view indeed of anyone-

Chris Bryant: Well, I have two other areas where I think he has misled the Committee.

Q3 Chair: I am sure they will come out in questioning and, if not, when you come to answer the questions of Members of the Committee I am sure you can bring them in there. Can I just say this, that Mr Yates made it very clear that when he spoke to this Committee and gave evidence in September last year he was relying on the interpretation of the Crown Prosecution Service. The interpretation was subsequently changed by the CPS. Do you not accept that the advice that he was given did, in fact, change?

Chris Bryant: I accept that there may have been an inhouse lawyer at the CPS who advised in the very early days of the issue being looked at that the narrow interpretation should be adopted. However, the prosecuting counsel made it absolutely clear that that was not the interpretation that should be used. It was not what was used in the prosecution and I think that Mr Yates was somewhat disingenuous last week when he provided evidence to the Culture, Media and Sport Select Committee that suggested that-because he referred to all the evidence prior to-

Q4 Chair: Yes, just to narrow this down, you accept that the advice of the CPS did change in respect of interpretation?

Chris Bryant: Well, I think that is a matter for the-

Q5 Chair : It is just a yes or no: do you accept that it changed?

Chris Bryant: I think that is a matter for the Crown Prosecution Service.

Q6 Chair: No, I am asking you since you made these allegations in the House.

Chris Bryant: I have already said that I think that in the very early days a lawyer advised, the inhouse lawyer, I think it might have been Carmen Dowd, advised on the narrow interpretation. However, my point is that it was not relied on in the court and it was disingenuous. Mr Vaz, if you would allow me just to-

Chair: Well, with the greatest of respect to you, Mr Bryant, this Committee is considering just one aspect. We have all had a chance to read your speech in the House and we need to pose our questions.

Q7 Mr Clappison: As a layman expressing a layman’s opinion, looking at this in the round, I am rather on your side on the interpretation of the regulation of investigation or whatever it is, the RIPA Act, with which this argument about interpretation is concerned, and that to give it the narrow interpretation as you have described would be to make a bit of a nonsense of the Bill and to create a self-inflicted handicap for those seeking to prosecute.

But on the question of what the interpretation of the law was at the time when John Yates gave his evidence to us, we have seen sight of what was said not by a junior official at the Crown Prosecution Service but by the DPP, to whom we wrote. He says, and I quote from what we were told in his letter, "In 2009 I gave written evidence to the Culture, Media and Sport Committee. In that evidence I set out the approach that had been taken to section 1(1) of RIPA in the prosecution of Clive Goodman and Glenn Mulcaire, namely that to prove the criminal offence of interception the prosecution must prove that the actual message was intercepted prior to it being accessed by the intended recipient. I also set out the reasons why David Perry QC had approached the case on that basis at the time". That is not a junior official. That is the DPP saying what the interpretation was and that was the interpretation that was extant at the time when John Yates gave his evidence to this Committee.

Chris Bryant: But the Director of Public Prosecutions said in his evidence also, "First, the prosecution did not in its charges or presentation of the facts attach any legal significance to the distinction between messages which had been listened to and messages which had not. Secondly, the prosecution, not having made the distinction, the defence did not raise any legal arguments in respect of the issue and pleaded guilty". Thirdly, not in relation to what he said, but Mr Perry, prosecuting counsel, his advice, which is after all the dates that Mr Yates refers to in his letter-which was sent to the Culture, Media and Sport Select Committee and I presume has also been sent to this Committee as well-provided quite contrary evidence.

Q8 Mr Clappison: Mr Bryant, you have much more detailed knowledge of this than I have because you have been crawling all over it, but you are talking about what happened in the trial. I am talking about the interpretation here, the interpretation of the law, which is what John Yates told this Committee. What he said and what the DPP said is on all fours together; it is the same. There was no misleading, was there?

Chris Bryant: But the interpretation of the law is precisely what is used for the prosecution of the case.

Q9 Mr Clappison: Your argument was about what the interpretation of the law was, not the way in which that was used in the case. You said about the interpretation of what he said to this Committee about the interpretation of the law was square with what the DPP said to us in his letter to us, so you cannot accuse him of misleading the Committee. You can pull a face but it is the same advice that the DPP gave us when we wrote to him.

Chris Bryant: Well, that is not the view of the DPP.

Mr Clappison: I quoted from the DPP.

Chair: We will hear evidence from him when he comes to give evidence to us in a few weeks time.

Chris Bryant: Fine.

Q10 Dr Huppert: Can I just ask about the role of the Surveillance Commissioner, because it seems to me that the Surveillance Commissioner would have some sense of interpretation of what would be interception and what wouldn’t be. Do you know if you or John Yates or anyone else has ever tried contacting the Surveillance Commissioner?

Chris Bryant: I have no knowledge of that at all.

Q11 Dr Huppert: Would you expect-

Chris Bryant: I am not aware of there being a Surveillance Commissioner, if I am honest.

Q12 Mark Reckless: Mr Bryant, I am trying to clarify, if I may, your remarks in the Adjournment debate, specifically at one point you said, "Yates misled the Committee, whether deliberately or inadvertently". You then continued, "He used an argument that had never been relied on by the CPS or by his own officers so as to suggest that the number of victims was minuscule, whereas in fact we know and he knew that the number of potential victims is and was substantial". Surely if Mr Yates knew at that time that there was a substantial number of victims, yet told us that there were very few, does that not imply that he deliberately misled the Committee? Are you making that allegation and, if not, what have I got wrong in what I have just said?

Chris Bryant: It goes back to the point that I made earlier that he has always maintained that there were very few victims, but there was a note written by Scotland Yard itself in 2006 that said a vast number of unique voicemail numbers belonging to high-profile individuals had been identified as being accessed without authority.

Q13 Mark Reckless: But if he knew there were a substantial number of victims, yet told us that there was only a few, how can that be inadvertent rather than deliberate?

Chris Bryant: Quite.

Q14 Mr Clappison: I was just going to say I have every sympathy with people whose phones have been hacked, but he told the Committee there is a range of people, and the figures vary between 91 and 120, on the question of PIN numbers. Was he right about that?

Chris Bryant: I do not know how many PIN numbers there are because I have not had access. I have heard the number 91 as well. My complaint, I suppose, is that the police gathered a vast amount of material in 2006. It was not until last week that there was any suggestion that that material had never been properly interrogated to see whether there was evidence that people had been hacked or not, which is why I think it was disingenuous in the extreme to suggest there were very few victims because he could not possibly have known whether that material had large numbers of victims because he had never bothered to look at it.

Q15 Chair: You welcomed the fact that there is a new inquiry under Sue Akers. Do you accept that this was because of new information that has been provided by News of the World or do you think that that information was there anyway and it just had not come to the surface or not been brought to the surface?

Chris Bryant: I think the information was always there. If you take the instance of Ian Edmondson, his name came into play, and that is when the new investigation started, because his name appeared on some of the material that had been gathered by the police and had been sitting in the police vault since 2006. If the police had chosen to interrogate that evidence they would have pursued that line of investigation and this could have been dealt with at a time when more evidence would still have been able to have been gathered from mobile phone companies. Some of the cases that we are talking about go back to 2003, 2004, and indeed in Kelly Hoppen’s case-and this is fairly extraordinary in relation to Kelly Hoppen-her lawyer was told that they had absolutely no material on her at all and it was only when the new investigation took over that they admitted holding at least four incriminating documents relating to Mr Mulcaire.

Q16 Chair: Do you think there should have been better cooperation between the police and those who were the victims of hacking? Should that information have been provided to them more readily?

Chris Bryant: Well, my point is that I think everybody who was a potential victim should have been contacted. If you take a sheet of paper that has, for the sake of argument, 23 telephone numbers on it, which might mean absolutely nothing to a police officer but you take it to the person whose name is at the top of the piece of paper and show it to them, they might go, "Actually, yes, that is a list of people who left phone messages on my answer phone. All those numbers are numbers that I recognise because they are friends, relatives, whatever". That is the process that I think Mr Yates tried to suggest had always happened and never did.

Q17 Chair: Is it now happening? Has someone contacted you and said, "This is the information about you. Would you like to confirm whether or not this has happened to you?" Has that happened yet?

Chris Bryant: Yes, that has now happened in relation to me, but when it was said that it had happened previously, it had not.

Q18 Chair: It had not happened?

Chris Bryant: No, and indeed the only reason that I know anything in relation to me-I am very careful because I do not want to harm the investigation that is going on-is because I wrote on the off chance. Following the Guardian article in July 2009, I wrote to the Met and asked, "Is there anything in relation to me?" I have had to go to court to try and make the police show it to me.

Q19 Mr Winnick: We are looking, as you know, as the Chair has said, Mr Bryant, at the narrow interpretation of matters but I just want to ask you this question: the essence of your complaint basically, am I not right, is that these allegations were made by you and others, and the police didn’t take those allegations seriously enough, didn’t investigate? That is the essence of it, isn’t it, the essence of your complaint at least?

Chris Bryant: I first raised the matter of my mobile phone directly with Mr Yates in February 2004, long before any of this became a big issue in the media. But leaving that to one side, the problem I think is that what has been suggested by the Met all along, until the new investigation, is that all the criminality at the News of the World was caught and that they had nothing else that they could possibly have done that would have exposed any more criminality and indeed that, because they had sent two people to prison, there was now a massive deterrent effect that had stopped all of this happening. Well, we know that Kelly Hoppen’s phone was being hacked only last year. We know that a senior Member of Parliament has been notified by her mobile phone company that people have been trying to hack into her phone in the last few months. So, no deterrent effect.

Similarly, all the material that they gathered from Glenn Mulcaire in 2006, we know now from what Mr Yates said last week, was not interrogated properly until July 2010.

Q20 Mr Winnick: Can I ask you this question, Mr Bryant: if what you say is so, which I am sure the police will challenge, what motive would the police have? You and I and other members of the House of Commons in the main, I hope, don’t believe in conspiratorial theories, at least I hope not. So what would be the reason why the Metropolitan Police would have wished to do this?

Chris Bryant: It is difficult. I think the Metropolitan Police have not helped themselves by having regular meals with senior executives at the News of the World at the same time as they are meant to be investigating the News of the World. I think, to be honest, that is a conflict of interest, and when Mr Yates said last week that all evidence of such meals is published on the Metropolitan Police website, unless I have this wrong, all that is published in the Met code is-I have it here-it just says, "Reception declined, dinner received". It never says who it is with, and I think there is a real danger that the Met at least might be perceived to be in collusion with the newspapers that we are talking about.

Q21 Mr Winnick: That is a very serious allegation.

Chris Bryant: As I say, I think that they shouldn’t be. Mr Yates has defended the idea that senior police officers regularly have to dine with senior executives at newspapers and journalists, and all the rest of it. Personally, I think that that is a big mistake. I think if they are going to do that that should be in the public domain immediately but, as I understand it, Mr Yates had lunch in February of this year with Neil Wallis, who was formerly of the News of the World. I don’t know whether he checked with Sue Akers, who is running the new investigation, whether that was an appropriate thing to do. That knowledge is not public, I think, as yet. I just think that the Met would be very well advised not to be having these constant meals there.

Q22 Bridget Phillipson: Mr Winnick has already asked largely what I was going to ask. What baffles me is why the police wouldn’t follow these lines of inquiry, wouldn’t follow the evidence, and why they wouldn’t tell potential victims that they may have been victims of a crime?

Chris Bryant: Mr Yates has always said that the reason that he has not told some people is that they aren’t victims of crime, because he says that there is not a crime, which goes back to the issue of what constitutes a crime, even though RIPA section 2(vii) says very clearly that it is at any point in the transmission that the offence has taken place. When I am being in a very generous mood I think maybe it is just that they had more important things to be getting on with, but in the end I think what has happened is that a large amount of the criminality that was going on at the News of the World was never looked at and a large number of victims were not contacted.

Q23 Dr Huppert: Can I just come back to this idea of victims not being contacted because they may or may not be victims? Does it make sense to you that a police officer would look at a case like this and say, "On a technicality this person may just be outside the definition of a crime, so I’m not going to contact them"?

Chris Bryant: Yes, of course, but my point is if you look at the material that was gathered from Glenn Mulcaire it is extensive, as I understand it. I have only seen a small part of it, but as I understand it, it is very extensive. Let’s say, for sake of argument, there was a page that had your name on the top of it and your address and all the rest of it, and then a whole load of telephone numbers and transcriptions. That page wouldn’t make sense to a police officer unless they showed it to you, and you would be able to make sense of it and be able to say, "Yes, of course, that is provable. That is not provable".

Q24 Dr Huppert: Perhaps I misphrased my question. What I meant was that if there was somebody who was just on the edge of a technicality, I would expect the police to be somewhat proactive about contacting them and taking these steps. I would be surprised if they were not. It seems odd to hide behind a technicality, when you know it is a close-run decision, not to communicate with people.

Chair: Quick answer.

Chris Bryant: Yes.

Q25 Mark Reckless: Mr Bryant, I am not entirely convinced by the suggestion that merely because the Met have dinner with executives at the News of the World or News International that that is conflict of interest or would of itself be a reason why they wouldn’t want to investigate the issue. Are you concerned there may be broader linkages, whether payment for information at any level or employment of senior figures in the Met relatively soon after they leave as columnists on particular News International papers?

Chris Bryant: If you put the charge sheet together because you are not wanting to be nice, then you end up with a list of Andy Hayman, who was in charge of the investigation, now working for News International. In 2003 I asked Rebekah Brooks and Andy Coulson whether they paid police officers for information and they said, "Yes". They said that it was all within the law, but that was in a Select Committee hearing. The police have never investigated, so far as I am aware, anything in relation to that. They have never investigated Rebekah Brooks, and that seems extraordinary because she had effectively confessed to a crime.

You can put together a very closed charge sheet, which includes dinners. You are absolutely right, just because a police officer has had dinner with a journalist doesn’t mean that they are in collusion or they are corrupt or anything. I am not saying that. But during this process, when the police have been investigating the News of the World, I think it has been very odd that there have been quite so many occasions when senior police officers have done so.

Q26 Steve McCabe: You said in your Adjournment debate that there was clear evidence that rogue staff members of the mobile phone companies had supplied, in fact I think you said had sold, the information to reporters and investigators. Is it your view that is how these people mostly obtain the information? The details they need to hack, is that mostly obtained from staff at the mobile phone companies?

Chris Bryant: That was a reference to the report that was done by the Information Commissioner. There are lots of different ways in which somebody can hack into a phone, and the term "phone hacking" is a colloquial term that covers a multitude of different sins. In the most part, what we are talking about here is, I think, managing to gain access to a PIN without authority, using it so as to access voicemail messages. Sometimes those voicemail messages might be very personal, they might be from a loved one or whatever, sometimes they might be of negligible personal value, but sometimes what they are trying to do is find the telephone number of another person who they then want to pursue.

Q27 Steve McCabe: What, in your judgment, should the mobile phone companies do to better protect their customers’ privacy?

Chris Bryant: I think they need stronger internal mechanisms to make sure that PIN numbers aren’t available to be handed out by somebody when ringing into a mobile phone company. I think all the phone companies should adopt the same processes as well because people do often change from one company to another. I think it would be a good idea if they always notified somebody when there was any doubt about whether their phone was being accessed illegally, which is not the policy of all the mobile companies at the moment. Some of them do it and some of them don’t, which is why, for instance, in my case I rang Orange and found out seven years after the occasion that my phone had been accessed back in 2003.

Q28 Chair: We have sought evidence from the mobile phone companies as part of our inquiry. I cut you short when you said there were two other areas you wanted to raise. We have dealt with the interpretation area of misleading, so could you very quickly, because we need to end this session shortly, cover the last two areas, or have you covered them in the answers you have given?

Chris Bryant: Chairman, you were absolutely right in saying that they would all be covered in the questioning. The two areas I was going to refer to was the issue of meals and so on. In the end, as Mr Winnick wisely pointed out, my complaint is all this evidence has sat there, the police didn’t interrogate it for whatever set of reasons, lots of people ended up having a completely false impression and the full criminality was not heard.

Q29 Chair: Have you now met Mr Yates? The last time he appeared before us he did say that he was going to contact all the victims. Have you now met him and have you been given all the information you require?

Chris Bryant: Mr Yates isn’t doing the investigation now, so it is-

Q30 Chair: So there is no need to meet him?

Chris Bryant: No, and indeed he said, I think last week, that he had offered to meet me. He wrote me a letter last year threatening to sue me and at the bottom said, "If you want to meet then that will be fine". I didn’t take that as a very warm and friendly offer of a meeting, so I didn’t. But the difficulty is I am now in legal proceedings with the Met and with News Group.

Chair: Well you might bump into him in the corridor outside, you never know.

Chris Bryant: What joy, what bliss.

Mr Winnick: There are enough lawyers round this place.

Q31 Chair: One final point: you are satisfied with the conduct of the inquiry at the moment?

Chris Bryant: So far as I understand, certainly in relation to myself and in relation to others, I think it is being admirably pursued and I only wish that this is what had been done in 2006. All the dots were there to be joined up; I think the police refused to do so.

Chair: Mr Bryant, we are most grateful. Thank you so much for coming in. Could I call to the dais the Deputy Commissioner, John Yates.

Examination of Witnesses

Witness: John Yates, Acting Deputy Commissioner, Metropolitan Police, gave evidence.

Q32 Chair: Thank you very much for coming in to give evidence. You in fact wrote to me last week and requested that you come and give evidence to the Select Committee following Mr Bryant’s parliamentary debate in which he said that you had misled this Committee.

John Yates: Thank you, sir, yes.

Q33 Chair: I know you said at the end of your evidence last week that you found it slightly odd that you were coming before us, but the fact is if someone of your eminence writes to the Committee and asks to give evidence and then the press releases the letter to the BBC the likelihood is that you will be given the chance, which is why you have been given the chance today. Did you deliberately or inadvertently mislead this Committee when you gave evidence to us in September 2010?

John Yates: No, most certainly not. You will have seen me sat in the back of the room while Mr Bryant was giving his evidence, and you will have seen him make a very, very important concession on the advice we received. I think it was a very important concession. It was central to the allegations he made that we did not at any time have any advice from the CPS about how we manage this case. That was not the case. You have a letter from me, clearly articulating that at a very senior level, as your colleague Mr Clappison has said. It was the head of Special Casework Division who provided that advice. That, as I said in the letter, permeated the entire inquiry. The whole investigative strategy was based upon, as would always be the case with matters of this nature, complex areas of law. We would seek advice from the CPS and shape our lines of inquiry in that way.

Q34 Chair: In fact, I think you made that clear when you came to give evidence, your constant contact with the CPS. Can we just get our dates right? You gave evidence to us in September 2010?

John Yates: Yes.

Q35 Chair: You were saying up until that time, even though you had been in regular contact with the CPS, at no time did the CPS tell you at director level or below that level that the interpretation ought to have been wider than the interpretation that you were following, leading you to the conclusion that only between 10 and 12 people were, in effect, the victims. Is that correct?

John Yates: That is correct. I, of course, relied upon the advice from 2006. I then relied upon the letters that the current DPP sent in about what the law was, which was prior to its interception. As I have said, from that point on, and I said last week, the director is quite entitled to revise his opinion about the law and to take different legal advice, and to take a different approach. That is not a problem at all, but when I gave evidence to your Committee that is what I relied on, those two letters and the previous advice, which are set out hopefully pretty clearly in the letter to you from last week.

Q36 Chair: For completeness can you tell us when that advice changed? Did you receive a letter from the DPP or was it a phone call? When, after September 2010, did they suddenly realise or decide to change their minds and go for the wider aspects?

John Yates: The word "changed mind" is not a great one, because they have just revised their view. It was in a conference in October, Friday 1 October, which again I think was referred to by Mr Bryant in his evidence at the Adjournment debate.

Q37 Chair: In a conference, meaning an open conference or a case conference?

John Yates: A case conference, post the New York Times article, when we scoped those matters. There was a case conference attended by I think it is the current head of Special Casework and some of my colleagues, where the fact that a different QC had provided some differing advice was raised and it sort of signalled, if you like, the intention to take the broader view for the future.

Q38 Chair: You must have been absolutely furious. There were you conducting this investigation for four years, you thought that you had good, proper advice from the top guy, the DPP, and then you attend this case conference and suddenly somebody says they have taken some advice from some other QC and the interpretation has changed. You must have been absolutely furious at this.

John Yates: Far from it. Firstly, the divisional investigation wasn’t mine, as you are aware. Secondly, we were looking at the New York Times issue, a different matter, to see if there was any further evidence there that warranted reopening the investigation. The law is revised, as you know, being a lawyer, Mr Vaz, all the time through either case law, appeals, or whatever. So it is not a surprise and-

Q39 Chair: So you weren’t even upset; you were quite happy with this? You just felt you should-

John Yates: It is a change of direction and this happens in policing in investigations all the time, so no.

Q40 Chair: You didn’t sort of think to yourself, "Oh my God, people are going to now say, ‘Why didn’t I look wider than the 10 to 12 people?’" You didn’t even think of the implications of this?

John Yates: I thought of the implications but it is not for me to be cross about it. It is a fact that a particular case in 2006 was framed under the guidance that I have set out to you, and four or five years later it has changed. That is not a problem. It is a matter of, look forward rather than look back.

Q41 Chair: I can see why you have your job, because if it was said to someone like me I would be pretty cross if someone like the DPP decided that the interpretation was wrong and actually there were hundreds of other people who could have been contacted.

John Yates: He didn’t say it was wrong; he signalled an intention to take a broader view. I think you would find several defence lawyers, very eminent, would argue completely for the 2006 view, but it has never been tested and that is the issue. It has never been tested.

Q42 Chair: Do you think, therefore, section 1 ought to be clarified, that the law is unclear? You were obviously following the advice of lawyers. The lawyers had revised their view. There is no clarity in this; it had not been tested in the courts. Is it time that we looked at this particular legislation and tightened it up?

John Yates: I could not agree more.

Q43 Mr Winnick: I simply want to put the point to you, Mr Yates, that you heard my parliamentary colleague a few moments ago complain that the Metropolitan Police had not, in fact, investigated at the time the complaints were made. What is your reaction to that?

John Yates: Well, I think the first investigation took an approach. Firstly, it was very much focused on the royal family, which is why officers from my current command were involved. They took an approach that where is the best place to get the best evidence and to show the full range of criminality so the court has the maximum sentencing power? So they focused on where they could get the best evidence. The CPS were with us throughout and that is where they advised us to go. That is the way the indictment was framed and that is the way the case was conducted by prosecuting counsel.

I said last week that I think we could have done more and we ought to do more around notifying victims, and that was my position from July 2009. When I took that view, I said if we haven’t done enough then we need to do more. Now, I don’t think we have been speedy enough on that, and again I have accepted that. I think the new investigation with considerable resources, I might add, are progressing that.

Can I just reiterate the context of 2006? These arrests took place the day before the multitude of arrests surrounding the airlines plot and probably the biggest counter-terrorist plot this country has ever seen. I am not at all surprised that people like Andy Hayman and Peter Clarke, in those days, said, "Right, we need to use our resources in the best way possible. We have this huge priority. There is this massive counter-terrorism operation", and they would have moved resources around, as I would have to if the same thing happened today. I think I used the example last week that the Chief of Defence Staff will be moving his resources around because of what was happening in Libya and in the Middle East. That is what happens and that is what happens in terms of managing priorities in these areas.

Q44 Mr Winnick: If Mr Bryant hadn’t high profiled this, raising it in the House in the Adjournment debate and on other occasions, would we be right in coming to the conclusion that there would be no ongoing investigation at the moment into these matters?

John Yates: I think people like Mr Bryant and many others to my left as well have raised the profile around these issues. There is a huge public concern and we have to accept that and recognise that and respond to it. I think that is what we are doing. That is what the new investigation is certainly doing. As I say, it has considerable resources attached to it to enable it to do that.

Q45 Mr Winnick: The allegation, Mr Yates-and of course it is only an allegation, but I think I should put it to you-is that there was a closeness between the Metropolitan Police, perhaps yourself, and News International; there was some hospitality given and so on and so forth. Inevitably when an investigation is taking place and this arises, it may be on other issues, questions are raised. Do you feel in all the circumstances if it did take place, if hospitality was given, that it was inappropriate?

John Yates: No, I don’t think it is. I think, as I said last week, we are duty bound to engage at a numbers of levels, be it politicians, businessmen, community leaders and the media. I think it is really important that we do that. If you look at the broad context of people I have dined with, you will probably see more dinners and more lunches with the Guardian than you will see with News International. There is a broad engagement that people at my level undertake and will do during the course of our duties, and I think that is quite proper.

As to the point made, as I heard previously, about engagement with News International, the fact of the matter was that up until only two or three months ago, there were two people who had been convicted in a large organisation. To say that we can’t engage with the rest of the organisation at senior level doesn’t make sense to me.

Q46 Dr Huppert: To go back to the issue of what the Director of Public Prosecutions said, essentially what you have told the Committee is you had one set of advice and you worked on that, and then a bit later it changed and you were fine with that, and had new advice. That is certainly the position you put in your letter to the Guardian, I think it was, where you quoted a sentence from what he said, "To prove a criminal offence of interception the prosecution must prove the actual message was intercepted prior to it being accessed by the intended recipient". You then said, "I’m not sure how much more unequivocal legal advice can be". So that fits with what you have just said. But the DPP then wrote, I believe, to the Guardian in response to that saying that he regretted you had, and this is a quote, "Taken one sentence of my letter to the Culture, Media and Sport Committee out of context". How does that fit with your story if the DPP is concerned that he doesn’t accept that he gave unequivocal legal advice?

John Yates: I am slightly mystified because I think that legal advice is very clear. I don’t think it is taken out of context.

Q47 Chair: Mystified by the question or mystified by the DPP?

John Yates: Mystified by the response from the DPP, but he can speak for himself and, as I said before-

Chair: He will be coming to give evidence to us.

John Yates: -I have absolutely no desire to get into any public spat with the DPP. But that said, a letter saying that is the law, I don’t think it is taken out of context; I am happy to be advised and swayed around it, but it looks pretty clear to me.

Q48 Dr Huppert: His comment was about other sentences in the letter, that there was one sentence there but then there was a lot of other commentary. Selecting the sentence that is most helpful is something politicians do tend to do but is not something we should do.

John Yates: All I would say is that the consistent advice from April 2006, when we first engaged-I think it was April 2006-with the head of Special Casework, was that this was the interpretation that the prosecution was going to rely on in court. Now, as it happened, and as Mr Bryant said, David Perry didn’t have to rely on it in court because the defendants pleaded guilty, but I have known of no case in my investigative career when you would not prepare for court on the basis the hearing will be contested. You would always prepare a case on the basis it was going to be contested and if the defendant pleaded guilty all well and good, but you would never approach a case other than that way.

Q49 Bridget Phillipson: On that point, with the successful criminal prosecutions, the voicemails had been listened to prior to them being listened to by the people they were intended for. The point of law is that for it to be a criminal offence, the initial advice was that the voicemails had to have been accessed by a third party prior to being accessed by the person that the voicemails were intended for?

John Yates: Prior to being accessed, yes. That is absolutely right, and I think I said in my evidence last time that technically it is a complex thing to prove in terms of how do you prove it. There was only one case on that indictment that we could prove technically that had happened. The remaining cases were sort of proved on, we call it system and method, that due to the numbers of access to the voicemails it was highly probable beyond reasonable doubt, in our view, the evidential standard, that that was the case. There was only one case we could actually prove.

Q50 Bridget Phillipson: Why in other cases was it not possible? If it was possible in some cases to use other tests, why wasn’t it possible in others?

John Yates: It was something to do with the computer systems that the individual phone companies had. One particular company had the ability technically to prove it, the other companies could not at that stage. I don’t know whether they can now, but certainly at the time that was the case.

Q51 Bridget Phillipson: With the 91 or 120, however many people may have been potentially victims of phone hacking, are you confident that in those cases those voicemails hadn’t been accessed prior to the people they were intended for listening to them?

John Yates: I think I have to leave that to the new investigation. It will be reviewing all those matters and I have to leave that to them.

Q52 Mark Reckless: You appear to take a remarkably relaxed attitude towards the legal advice changing, and you mentioned one reason the legal advice may change is that a court decision leads to a different interpretation that changes the law as it is understood. I would understand in that situation that is perhaps unfortunate, but it is something one would professionally deal with. Are you talking about a situation here where the DPP changed its advice because of legal developments and what different judges ruled? When I was working as a solicitor, if we told the client there had been this judgment and therefore the law was now this, but if there hadn’t been a judgment and we had advised on one basis and they had acted on that basis and there had been great publicity around it all, and then we suddenly said, "Oh no, after all we think the law is now this", even though nothing had changed, I would have expected them to get upset. Why haven’t you-

Chair: I think both Mr Reckless and I would have been upset if somebody had said that to us. We are amazed that you were not upset.

John Yates: As ever, our job is to uphold the law, not make the law. Therefore, we will follow the advice given. As I said, the DPP will answer for himself, as would the QC who provided the advice. They will be reflecting, I suspect, the public concern that arises out of this case and thinking, "Well, perhaps we ought to test it in a different way". I don’t know, you would have to ask him. But, as I say, it is not for me to sort of rant and rave about changing the law.

Q53 Mark Reckless: I am just looking at the penultimate paragraph on the third page of your letter to our Chairman of 24 March. You refer to some newly commissioned legal advice and then you say, "For the purposes of any future investigations". Could you just clarify who commissioned this legal advice and why, and why it only applies to future investigations and who it was who determined that should be the case?

John Yates: That is the case minutes I referred to from 1 October and commissioned advice via the CPS on that. Of course it would apply for future cases. Mulcaire and Goodman have been prosecuted, pleaded guilty and gone to prison, so it couldn’t apply to that case.

Q54 Mark Reckless: But you said just then 1 October. Mr Bryant said 1 October, but then you almost seem to suggest it is not 1 October, it was in late 2010, given the way you described the advice.

John Yates: I was aware that it was late 2010. I hadn’t got hold of the specific advice, which I now have, and it was 1 October.

Q55 Mark Reckless: So Mr Bryant was correct in his date of that?

John Yates: He was correct about the date-I don’t know how he had that date-but I am not sure he was entirely correct-

Q56 Chair: It is the same case conference, is it?

John Yates: Well, there was a case conference on 1 October, yes.

Q57 Mark Reckless: But the key point applies to future investigations and "future" is underlined. I think it is an important point. Obviously it doesn’t apply to Mulcaire, he has been convicted, but when you say "future" do you mean just if something new happens in a different area or does it include all this material that, according to Mr Bryant, you should have but had not interrogated?

John Yates: It would include all this material, I suspect. That is a matter for the new inquiry. But going back to what Mr Bryant said about 1 October, he said we were formally warned, which is very strong language when it absolutely wasn’t that at all, and I have made that pretty clear, hopefully, in the letter.

Q58 Mark Reckless: Yes. In the final paragraph on this page, you are saying the only reason the investigation was reopened was that News International provided new material. But from what you have said just then it seems to imply that the legal advice changed and future investigations would include all the stock of material that you already had but hadn’t interrogated previously.

John Yates: The only reason the new investigation was reopened was that News International provided us with new material, I think it was in January of this year. The legal advice then runs concurrently with that, but the only reason, and I have checked this with the current head of the investigation, the case was reopened was that-

Q59 Chair: You don’t accept Mr Bryant’s view that the information was there anyway for four years, you just didn’t find it?

John Yates: I accept there was information there that, in terms of victims and contact, we should have done more with, but the interpretation of the law only was revised in October of last year.

Q60 Mark Reckless: And that had nothing to do with the reopening of the investigation at all?

John Yates: No. It will run parallel with it in terms of the new investigation-again it is a matter for them and how they are advised, but the new investigation will run with that interpretation of the law, I suspect, on the basis of the new evidence provided by News International. Sorry, it is a bit wordy.

Q61 Steve McCabe: I think you said earlier, Mr Yates, that the specialist operations counter-terrorism group were a bit overwhelmed by the strain that they were under following the airline terrorist plot and you understood why they had acted in the way they had, given that. Was I right to assume that, given your evidence to the Culture, Media and Sport Committee, you were saying that the only reason the specialist operations counter-terrorism group got involved in this investigation in the first place was the involvement of the royal family?

John Yates: Yes, that is right. Part of my remit is counter-terrorism and also protection of the royal residences and the royal family. We obviously have the closest contact with them and sensitive inquiries involving the residences or the family falls under my remit, and did then as well.

Q62 Steve McCabe: An inquiry of this nature wouldn’t normally be undertaken by this group, and this is a group that was under tremendous pressure. Who would normally investigate something like this?

John Yates: It would normally be the Specialist Crime Directorate, and in fact when a new allegation came in last year that is exactly where it went because they have both the expertise and the scope in terms of their-

Q63 Steve McCabe: I just want to be clear about this, Mr Yates. I don’t want to put words in your mouth, but you said that they would have the expertise. We have heard a lot this morning about the fact that there seems to have been some confusion, some uncertainty, changes of advice. Would it be reasonable to conclude that perhaps the specialist operations counter-terrorism group were not the best people to investigate this in the first place, and if it hadn’t been for the involvement of the royal family this would have gone straight to the group who had the expertise to deal with it and we might not be having this sort of session now?

John Yates: It is difficult looking in hindsight on these issues, but I think it is absolutely proper that my area, because of the involvement of the royal family and because of all the sensitivities around it, which were raised last time, should have taken the lead in this case. As some of the challenges broadened out, particularly on the resourcing, and given the huge expertise in the counter-terrorism command, whether it is best to use that command in these areas again is a moot point. As I said, last year when a new allegation came in, it went straight to the Specialist Crime Directorate. When this case was reopened, following the information from News International, it has gone to the Specialist Crime Directorate, absolutely right.

Q64 Steve McCabe: What is the additional expertise that the Specialist Crime Directorate have that would have made them more suitable to deal with this?

John Yates: I suspect, because I was there before myself, they are dealing with this type of case, difficult complex cases in terms of these issues, on a sort of regular basis. Therefore they are unlikely, of course, then to get moved should something appalling happen that means all the resources have to be reprioritised elsewhere. That is what they do, that is what their terms of reference are, and I think you are absolutely right in the sense that in the future that is where cases of this nature ought to be investigated.

Q65 Steve McCabe: Is it possible to give us any idea of how they would deal with it differently? You say they have much more experience because they deal with it all the time. It is an unusual kind of thing for the counterterrorism group. How do they use that expertise? Do they approach the investigation differently? Do they have a different style of mapping it? I am just trying to understand what the expertise is?

John Yates: I think it is a lot of where the experience lies of these types of difficult, complex, detailed investigations. It is something about horses for courses and the fact that the type of people who go into that area are the ones who like doing these cases and they experience these things-a similar case, I am not saying this type of case but similar types of cases-regularly. They all have the links into the CPS in terms of these types of cases. It is just better handled in that way, and of course they have the resources. That is what they are resourced for.

Q66 Mr Clappison: The Committee is concerned about the evidence you gave and what has been said about it subsequently, as the Chairman has said. You have told us about the interpretation point, as far as the evidence is concerned. You also mentioned the 91 to 120 PIN numbers which had come to light as a result of, I think, Mr Mulcaire’s activities or the evidence about his activities. Have you any reflections that you can give us on that figure? Is that your most up-to-date estimate of how many people’s PIN numbers were obtained?

John Yates: Without wishing to sort of duck it, I think that is a matter for the new investigation. I have completely conceded that we should have done more about some of those people. It was to do with the way the evidence was interpreted. I think I need to leave that bit for the new investigation to comment on.

Q67 Mr Clappison: Looking at this as a layman, perhaps not the best person in the world with technology, would you think that the mischief that Parliament was intending to get at in the RIPA Act was anybody who accessed or interfered with somebody else’s telephone communications in order to listen to them and invade their privacy, whether or not it was a conversation that was taking place at the time, whether or not it was a recorded message, whether or not the person concerned had listened to that recorded message? It is an interference with privacy and private communications, isn’t it?

John Yates: I strongly suspect it was, but we can only go-it is a complex area of law, as we have seen from the amount of debate it has generated.

Q68 Chair: Do you agree with Mr Clappison?

John Yates: I agree, that probably was the will of Parliament as well. But we went with the advice we were given. It is a very complex area of law.

Q69 Mr Clappison: Do you have any estimates-say if you don’t-looking at the original investigation, and taking that broad brush definition of interference with communications and listening in to communications, which I think what the public understand hacking to be, of how many people were the victims of hacking as a result of this? Do you have any idea in mind?

John Yates: I think that is a matter for the new investigation and they need to address that.

Q70 Chair: But when you had conduct of it I think you said 91, didn’t you?

John Yates: There are figures bandied around between 91 and 120, depending on who-

Chair: Yes, you told us that.

John Yates: I do think that is a matter for the new investigation.

Chair: Yes, but when you had it you said it was 91 to 120?

John Yates: Yes.

Q71 Mark Reckless: There was a report, I think a few weeks back, in Private Eye, which I wouldn’t usually necessarily raise at the Committee but I think it goes to a very sensitive issue, that suggests that the Metropolitan Police Service are taking legal action, or at least instructed solicitors who are exchanging letters, clearly proceedings have been issued. I won’t expect you to answer this but, short of that, when people comment on what a witness has said to a parliamentary Committee and report on that, is it appropriate for a public authority then to be seeking to deal with that through threatening libel proceedings?

John Yates: I think the comments made within the purview of the House and in Committees are clearly privileged, and I have no difficulty with that at all. It is when they are repeated outside or repeated in print as fact in other areas. This was before that. Mr Bryant, in the Adjournment debate, made some very serious allegations about my integrity, and I have seen some concessions from him today. Although he hasn’t gone as far as I would like in terms of apologising, he has clearly conceded that he was wrong around the issue of advice. He absolutely conceded that in his opening comments. That is the first time we have heard that. I think it is quite proper and in terms of-

Q72 Chair: We should say that Mr Bryant is behind you nodding his head, so I don’t necessarily accept that.

Dr Huppert: Shaking his head.

Chair: But we may have to have other sessions. We don’t want to go back to Mr Bryant’s evidence. On the specific point that has been raised by Mr Reckless about the use of public money in order to pursue legal action, that is the point, isn’t it?

John Yates: This is a matter for the Police Authority.

Q73 Chair: For those of us who haven’t read the Private Eye story, is it about you taking legal proceedings or somebody else?

John Yates: I am not taking legal proceedings at all, at the moment.

Q74 Chair: Who is it about? I think for the record we need to be clear who is suing?

John Yates: I have objected, and I think it is quite proper for me to do so, to some of the more colourful and untruthful reporting, so I don’t think I would expect to be a sort of Aunt Sally being bashed up all the time. I think I am entitled to defend my integrity.

Q75 Mark Reckless: But you drew a distinction between proceedings of this Committee and reports outside of proceedings of this Committee, suggesting that the one was privileged but the other wasn’t. Surely if someone is fairly commenting or reporting on something that has happened here then that also should be privileged.

John Yates: I am not a libel expert but I have taken the appropriate advice.

Chair: We will need to take legal advice from the DPP.

Q76 Mark Reckless: The fundamental difference is, first, public authorities have a duty to protect people’s freedom, uphold people’s freedoms of expression and, secondly, following the Derbyshire judgment in the House of Lords in 1993, public authorities do not have a cause of action in libel. So if you are coming to this Committee and saying something and that is reported on, and you are coming here as Assistant Commissioner, I believe at the time, why then is public money being used, by the MPS or the MPA, to threaten libel actions with respect to what you said in reports of that of this Committee?

John Yates: As I said, Mr Reckless, I am not a libel expert and there is absolutely no-

Q77 Chair: But he is not asking about the libel law, he is asking why.

John Yates: But there is fair comment and there is fair reporting, and then there is unfair comment and unfair reporting and there is interpretation that people put on it. All I said is I am protecting my position and I am not undertaking any legal proceedings against anybody at the moment.

Q78 Mark Reckless: Protecting your position as an individual person or protecting your position as Assistant Commissioner, as you then were?

John Yates: Both. I represent the Metropolitan Police here today. The investigation that took place in 2006 was not mine, so I am representing the corporate sole here today and I think I am quite entitled to do that.

Q79 Mark Reckless: Not withstanding the judgment of the House of Lords in Derbyshire in 1993?

John Yates: I have to say I don’t know that judgment, Mr Reckless.

Chair: I think Mr Reckless will probably send you a copy. Did you have a quick point, because I want to end this session?

Q80 Steve McCabe: I am a bit lost with all this "protecting my position", but I just wanted to be clear: you have asked that public funds be made available should you want to pursue a legal action. Is that accurate?

John Yates: I have sought authority in those areas, yes, but I am not doing so.

Q81 Mark Reckless: In the context where individuals have been trying to get information from the Metropolitan Police and have not been given that information, and have had to expend very significant personal funds in taking civil legal actions to get that information, don’t you think it is particularly indefensible that you are using public money potentially to defend what you are doing as a public servant? Isn’t that an inequality of arms?

John Yates: I think there are two completely different points you are raising there. The first point concerns whether we can provide information to potential civil action claimants. It is absolutely clear in law. You will know the case law, it is R v Marcel, that says we are unable to provide material gathered for one purpose for people for another purpose. That is a very clear position in law. If we moved away from that we would be in all sorts of difficulties about privacy and other matters. I just think the other point is completely separate.

Q82 Mr Clappison: One of the points Mr Bryant raised needs dealing with: have all the people who were thought to have been victims of this hacking in the first place been told about it?

John Yates: That is a very broad statement to make, and I can’t answer that in completeness because of the new investigation.

Q83 Chair: Should we address that to Ms Akers?

John Yates: I think that is one for the future, yes.

Q84 Chair: We will do that. Two points came out of the evidence today. In terms of payment of police officers and the comments that Rebekah Brooks made to Culture, Media and Sport, you have seen no evidence that any police officers-you have not heard of any circumstances-have been paid any money by the News of the World?

John Yates: No, I absolutely agree that that has happened in the past. It is very rare.

Chair: It has happened?

John Yates: Has happened in the past and people have been arrested for it and have gone to prison, and I can provide details to the Committee of the numbers. It is very few.

Q85 Chair: Thank you. But subsequent to that statement being made to Culture, Media and Sport, nobody has investigated what Ms Brooks has said?

John Yates: No, and my understanding is my colleagues in the Specialist Crime Directorate are doing some research on that to see exactly what happened. It was eight years ago.

Q86 Chair: Has somebody not just asked her? Research is one thing, but if she has made a statement that is the next thing.

John Yates: Always best to do the research first.

Q87 Dr Huppert: I am trying to understand-

Chair: Don’t widen it, Dr Huppert.

Dr Huppert: I will say on this, you say it is very rare but you also say that no investigations have been done into it except for those few specific occasions. How could you know it was rare?

John Yates: Hopefully our intelligence is good enough to know that it is rare. Park Rebekah Brooks away for the moment; other cases that have involved corruptors or corrupt police officers over the past decade have taken place and people have been arrested, and they have gone through the process, whether it be a discipline or criminal proceedings; that has happened. That is what I am saying is pretty rare. It has happened, we accept it, and we have the processes in place to ensure that it hopefully doesn’t-

Q88 Chair: But subsequent to what she said at Culture, Media and Sport, nobody has asked her about this?

John Yates: That is what is being clarified at the moment by my colleagues.

Q89 Chair: By their research?

John Yates: By their research at the moment.

Chair: Deputy Commissioner, obviously when you write to the Chairman of the Home Affairs Committee and ask to give evidence, we have you before us, which is what we have done today. Thank you very much for giving evidence.

John Yates: Chair, I did have an opening statement, which was very similar to the one I gave to the CMS, which I am very happy to have-

Chair: You can certainly leave it with us, and we will make sure it is in the record. Thank you very much for coming.