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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 524 - iii
House of commons
TAKEN BEFORE THE
Home Affairs Committee
Private Investigators: follow up
Tuesday 10 September 2013
Evidence heard in Public Questions 150 - 210
USE OF THE TRANSCRIPT
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Taken before the Home Affairs Committee
on Tuesday 10 September 2013
Keith Vaz (Chair)
Mr James Clappison
Dr Julian Huppert
Mr David Winnick
Examination of Witness
Witness: Christopher Graham, Information Commissioner, gave evidence.
Q150 Chair: I call the Committee to order. Our witness is Christopher Graham, the Information Commissioner. Commissioner, thank you very much for coming in to see the Committee at short notice.
Commissioner, we took evidence from Trevor Pearce, who is the chief executive of SOCA. He told us on 3 September that the Information Commissioner’s Officers had been involved with SOCA in the planning of Operation Millipede and that there had been a number of times when they have been engaged with the ICO. As you know, Millipede goes back seven years. Given that you or your officers have been involved for so long, why has it taken you so long to begin your investigation?
Christopher Graham: Chairman, as you know, having seen a recording of the evidence session you had on Tuesday, I wrote to you on Thursday of last week because I was very concerned at the suggestion that if SOCA did not publish the famous-
Chair: Sorry. Can you answer the question?
Christopher Graham: I am going to answer the question.
Q151 Chair: I know you have prepared an answer on the list issues but can you just answer the question that I have just put to you? We all know what was in the evidence. We will come to the list in a minute. I am talking to you about Mr Pearce’s evidence. Mr Pearce said that ICO officers and the office were involved in Millipede and therefore involved in planning the investigation. Before we go on to the list all I want to know is, is that correct or not?
Christopher Graham: There were aspects of the Operation Millipede procedure that the Information Commissioner’s Office were certainly involved in. We were asked for advice on data protection law in a number of cases. We attended at the execution of warrants in a number of cases, so we were certainly involved. If I can just complete my answer, we always understood that at the point where the Serious Organised Crime Agency, and indeed the Metropolitan Police, had finished with the consequential material arising from that operation, it would be coming our way. The list of 98 organisations and individuals came our way on 28 August, followed two days later by 31 fat lever-arch files of material. It came to us earlier than we were expecting. I suspect that was the result of the work of this Committee in raising the importance of the issue and it was a call to the regulator to get on with it, and we responded to that call. The Committee has made clear it wants to see action and, as the Prime Minister says, I get it. So that is what we are doing.
Q152 Chair: Good. That is very helpful, and thank you for the kind words about the work of the Committee. We always like kind words about us, it keeps us understanding that the work we do is helpful.
So, prior to the information on 28 August, no one had indicated to you at all that you were going to get any information for you to start your work because, of course, Millipede ended in 2012. Is that right, nobody had rung you or written to you?
Christopher Graham: We knew that, once the police had finished, we were going to be asked to look at information relating to the clients of those who had been convicted as a result of the Operation Millipede prosecutions. I think some of the names were removed from the list because the Metropolitan Police still has an interest. We expected to get those files at the end of Operation Tuleta but-and I suspect that it was as a result of this Committee raising the temperature-it came to us at the end of last month. We are now getting on with an investigation around possible criminal offences and civil enforcement. The reason I wrote to you last week was because I would like the Information Commissioner’s Office to be given the space to carry out a proper, thorough and professional investigation.
Q153 Chair: Sure, I understand that and I am very grateful. Thank you for taking that up. I was just setting the context. If I could set the context a little further, and if we can now move on to the list. When we received the list from SOCA, we were informed that the Metropolitan Police had removed a number of names-I think it was five names-from the list that they had prepared for us in response to questions put to Mr Pearce on 16 July. The names had been removed by the Metropolitan Police because they were subject to a criminal investigation. This Committee received 102 names. I understand that on 28 August you only received 98 names-and I use the word "only" because it is a reduction on the number that we have-that came out of 31 files you are telling us. Just 98?
Christopher Graham: As Information Commissioner, I am telling you that I received the so-called blue-chip list of 98 organisations and individuals on 28 August and I set in train a criminal investigation. Two days later, in response to my head of enforcement saying, "If we are going to investigate this, we need to see your evidence" we received 31 fat lever-arch files. That is what we are working through. I do not know what lists you have had. I do not know what lists the Metropolitan Police have had. All I know is that I have a list of 98 names and we are working through them.
Q154 Chair: So, since you have not seen our list and we have not seen your list, it could well be that we are talking about two different lists. We cannot be certain, can we?
Christopher Graham: What I am trying to focus on is a criminal investigation involving information that has been passed to me. I am rather concerned that all this talk about my list, your list, their list and the publication of any list, is missing the point. We have an opportunity here to investigate and possibly prosecute potential criminal offences. I can only make that prosecution stick if we have handled the evidence properly and we have taken the opportunity of interviewing people in an orderly way, assessing the evidence and so on.
Chair: Yes, of course.
Christopher Graham: If because somebody wants a day’s headlines that investigation becomes more difficult, I suggest that is not in the public interest.
Q155 Chair: Yes, and I hope you are not suggesting that this Committee is the somebody that wants a day’s headlines, Mr Graham, because I read your blog and it seemed to be moving in that direction.
Christopher Graham: No, I was thinking more of the cheerleaders in the press. I saw a leading article in The Times this morning. I do not need the Thunderer to thunder at the Information Commissioner and to talk about freedom of information. My responsibility is to balance freedom of information, the right to privacy and to investigate prima facie cases of breaches of the Data Protection Act. That is what I want to get on and do.
Q156 Chair: Indeed. As a former BBC radio and TV journalist and a former secretary of the BBC, you know what the press’s mind is on issues of this kind. This is not our concern. Our concern, because we have dealt with this issue for six years now, has been to get people to get on with it, to see the police finish their work, SOCA finish its work and to hand it to you. That is why we are your best cheerleaders. We have wanted this information to be passed to you for at least one year from the end of our last investigation. We were told that until Tuleta was finished in April 2015 you would not even get any of this information. So we are rather glad that, as a result of what has happened, you have these files.
When we met on Friday you indicated that you had not seen the volume of evidence. You talk about 31 fat lever-arch files. Have you now managed to see it?
Christopher Graham: Well, a lever-arch file is a lever-arch file. Some of them are fatter than others, but it is a lot of material to work through. What we did when we received that material was to start scoping the exercise, assess the material we have and see where there were prima facie cases of breaches of criminal law.
Q157 Chair: Sure. We will come to the investigation in a second. Did you consult with SOCA and the Metropolitan Police before you wrote the letter to us? Or did you write that letter off your own bat because of what you had seen in the media, because we had not of course contacted you? Did you do it after consulting SOCA and the Met? Or was it something that you did on your own, when you wrote to us?
Christopher Graham: It was the other way around. I wrote it on the train from London to Manchester on Wednesday morning after I saw the press coverage. I had not been able to see the Committee session on the Tuesday but I caught up with it in the office on the Parliamentary website. SOCA and the Metropolitan Police consulted me about the letters that they wrote to you, and I think it was quite proper for them to take the view of the Information Commissioner. But I was concerned to protect the integrity of my inquiry, so that is why I wrote to you.
Q158 Chair: They contacted you. You did not contact them and say, "I am writing to the Home Affairs Select Committee to tell them not to publish"?
Christopher Graham: I contacted them after I had drafted my letter and decided that I needed to write to you, but it was my initiative.
Chair: Excellent. You have been very helpful and very clear.
Q159 Mr Winnick: Is it the basis of your case against our publishing, Mr Graham, that it would impede the course of justice?
Christopher Graham: It would certainly impede my investigation, and since my investigation is into prima facie breaches of the criminal law, I suppose yes. The danger is that justice will not be done because the investigation will not be able to go forward. I am no policeman, but it is not rocket science to work out that if you are investigating you do not want everybody in the community you are interested in to know what you are doing and who the other people are. By identifying the prima facie cases and then by executing warrants, going to see what documentary evidence there may be and connecting different bits of evidence with other bits of evidence that either we, SOCA or the Metropolitan Police hold, we may be able to bring cases before the courts, where that is justified. We may also be able to take civil enforcement action. Remember that I have powers to impose civil monetary penalties on data controllers for serious breaches of the data protection principles, and that is up to half a million pounds. I can also seek undertakings and make enforcement orders. There are all sorts of things I can do. But if because everyone has got very excited about this all the names of the organisations and the individuals are placed in the public domain, I would argue that the game has moved on. Now that the regulator has the files, I can do the investigation. We cannot have it both ways. We either have the headlines today and everybody knows there is a list of 98 but nobody can say whether or not they did anything wrong, that is one thing. Or you can have an investigation that leads to criminal prosecutions, if that is called for, and civil enforcement actions.
Q160 Mr Winnick: Leaving aside the headlines of today-and I have also seen the editorial that you mention-you have admitted to the Chair today and previously that there have been delays involved. I think you have also accepted that this Committee has done a great deal in hastening the process where you have received the names.
My question to you, Mr Graham, is simply this. How long is all this going to take? I don’t know what decision this Committee is likely to take about publishing or not, but how long is it going to be before we are in a position where you could say you have completed your work?
Christopher Graham: I will have completed my work when we have seen successful prosecutions through the courts, we have seen civil monetary penalties, if they are justified, and we have seen enforcement notices and undertakings. That is when the process will have been concluded. What I said to the Chairman, in my letter on Thursday and in person on Friday, was that I have to scope this thing to start with. I have not read through the 31 lever-arch files but I have a team who are doing just that. So first of all what-
Q161 Mr Winnick: How long is that going to take?
Christopher Graham: I have set the target of two weeks from last Friday to scope the exercise. Then I will be in a better position to know where we are placed. I discussed with the Chairman on Friday perhaps coming and seeing the Committee at your October meeting and reporting on progress. In fact I offered to come today, but at that stage it looked as if you had a very heavy agenda and it would be useful to wait until a bit later on. I am concerned that we are very accountable and very transparent, so at each stage of the process we are going to be reporting on how things are going and where we are but none of us know-
Q162 Mr Winnick: Reporting to this Committee?
Christopher Graham: I report to Parliament so, as this Committee represents Parliament, I would expect to keep this Committee updated. I have come before this Committee on a number of occasions. There is an element of all this that is a bit Groundhog Day, because I have been before the Home Affairs Select Committee discussing these very issues on at least two occasions. I think my first appearance was in March 2010. We are not always able to take things forward from the Parliamentary point of view in the direction that I would like to see.
Chair: No, and we have not seen you before, and I apologise. We will be seeing you more often.
Q163 Mr Clappison: Commissioner, you mentioned that you have your team working on this, looking through these files. Exactly how many people do you employ?
Christopher Graham: I employ 350, not all of them on the data protection side. Some of them are on the freedom of information side, which is funded differently. In this particular section of our enforcement division I have 40 staff, led by a very experienced retired Detective Chief Inspector of the Greater Manchester force. This particular project has been assigned to a team of a senior investigating manager and four staff. So I have six on-
Q164 Mr Clappison: You have four staff working on this though?
Christopher Graham: I have six staff working on the case, but I have a team of potentially 40. It is going to be a question of prioritisation within the people that I have.
The first thing to do is to assess the scale of the operation. We set that out in a press notice on 2 September. One thing we need to do is to assess whether there are some categories within this where we are dealing with people who are outside the jurisdiction and, therefore, we need to work with our international colleagues. Until we have done that piece of work I do not know how long it will take or what resources I will need to do it.
Q165 Mr Clappison: You will understand the feelings of the Committee on this in wanting to see somebody get cracking with it. You have mentioned the interests of justice and pursuing them. It is also important when investigating something though for it to be investigated promptly, when the facts are still fresh, when witnesses can remember what has happened and when documents are still available. If things drag on over a period of time, there is a risk that people will simply forget what took place and cannot answer questions and it is more difficult to get a result.
Christopher Graham: I absolutely accept that. Some of this material was very old even at the outset. I accept that. I am concerned that if it is made more difficult to conduct the investigation that we may not get any result at all, so-
Q166 Mr Clappison: There was no investigation at all until this Committee started asking questions about it and the files came to be delivered to you. The original case was concluded quite a long time ago. The private investigators concerned appeared in court, were duly sentenced and I dare say have served their sentences.
Christopher Graham: Last year.
Mr Clappison: Yes, Operation Millipede.
Christopher Graham: Yes, that is true, but I think I have made the point that the information that I could action came to me on 28 August. The ICO has acted pretty quickly, and certainly, as I have acknowledged, in response to the pressures from this Committee. I do understand that this Committee wants to see action, and action is what is taking place. You have said you want to see the regulator getting cracking. We have got cracking.
Q167 Mr Clappison: I do not know if you are able to tell us this globally, but what is your attitude towards the people on the list who are the clients receiving this information? What is your view of that? We have seen the people who are obtaining the information be prosecuted and receive sentences, the private investigators who in a way are the little people in this. But the clients-who we understand are large organisations in some cases-what is your attitude towards them?
Christopher Graham: It may surprise you but my attitude is that they are innocent until they are proven guilty. It is very important that we look at the 98 and investigate the circumstances. Some people will have a public interest defence. In other cases, if we look at the evidence we may be able to establish that the client was asking for information that they knew was going to be obtained illegally, or that they knew could only be obtained illegally. There we have a prima facie case to follow up. I repeat that if we get a great blaze of headlines tomorrow and then everybody knows who the 98 are, everybody can start trashing documents, comparing notes and whatever.
There is another point that I made in my letter. The more material that is generated about this controversy, when we get to court-and I hope we will get to court if the prima facie cases justify prosecution-we will have a whole pile of evidence that has to be shared with the defence, and it will make the business of bringing people to justice even more complicated. So, full marks to the Committee for chasing this. Now the regulator is getting on with it, do not make it more complicated for me to get a result.
Q168 Chair: Just on the question of timetable. This Committee is a great admirer of the work that has been done on Tuleta and the work of Sue Akers when she started the whole process. Tuleta has 19 officers-19 officers-and they have taken two and a half years to investigate five of the clients that they have identified during Millipede. So, two and a half years with no charges being laid as yet. I am just worried, as Mr Clappison has elicited from you the number, that you only have six members of staff. Would it be helpful if the Committee were to write to your parent Minister, the Lord Chancellor and Secretary of State for Justice, in view of the public interest and the fact that you have been waiting for this information for so long? You have 102 organisations and individuals. I think some of the names are already in the public domain. These are big, big organisations who are going to have lots and lots of lawyers dealing with your inquiries. Would you like to have more resources? Not just the general, "Would you like more money?" and people always say "Yes", but more resources specifically to be able to deal with this investigation in a timely manner, so you cannot come to us and say, "Sorry, it is going to take us half a decade"?
Christopher Graham: I think the difference between this investigation and Tuleta is that Tuleta is investigating hacking, which is a breach of the Regulation of Investigatory Powers Act. That is generally seen as a more serious crime and obviously the evidential stakes are much higher. A breach of section 55 or a civil breach, resulting in an undertaking or an enforcement notice or a civil monetary penalty, is much easier to make stick. Our record is good on this. We have a big case coming up in Isleworth Crown Court at the end of October, involving private investigations and a private investigator company where two of the individuals are going for trial, five having pleaded guilty. We will also be looking for restitution of the proceeds of crime in that case. That is a home grown investigation. My team is very professional.
Q169 Chair: How long did that take?
Christopher Graham: That has been very hard-fought by the defence lawyers so it has taken us a long time, but to answer the question-
Q170 Chair: How much is a long time?
Christopher Graham: Certainly more than several months, but to answer your question-
Chair: Yes, if you could.
Christopher Graham: -I cannot give you an estimate of the resources that I will need until we have completed.
Q171 Chair: But would you like more to deal with this investigation?
Christopher Graham: No regulator is ever going to say they would not like more, but could I also mention-
Q172 Chair: No, I understand that, but would it help you bring this to a conclusion more quickly? Would you like our help in getting more resources? I am not saying that every time I ask Chris Grayling for something he gives it to me, but would you like it or not? It is just a "yes" or a "no".
Christopher Graham: If everything you ask from Chris Grayling you get, I am very happy to say that I would like more resources. I would also point out that this morning, in the committee room next to this one, my colleague, the Director of Operations, was being quizzed by the Culture, Media and Sport Committee about what we were doing and whether we were doing enough about nuisance phone calls and spam texts. Everybody wants. On another day it could be the Scottish Affairs Committee saying, "What are you doing about the blacklisting of construction workers?"
Q173 Chair: Yes, but isn’t that the problem, Mr Graham? That is the problem you have just identified that Mr Winnick had-
Christopher Graham: Well, we have to prioritise.
Chair: That is the problem. You have so much to do, will you do this in a timely way?
Christopher Graham: I undertake to you that we are going to crack on with this. When we have done the scoping exercise, if it looks as if I we do not have the resources to do it, and I cannot call on resources from other regulators or police forces and so on, then I will certainly come back to you and if you are able to sweet talk-
Q174 Mr Winnick: You will come back to us immediately and tell us?
Christopher Graham: Yes, if I think it is a resources problem of course I will flag that to the Secretary of State and also to the Committee.
Chair: Excellent. Let’s move on. We get the message, thank you very much.
Q175 Steve McCabe: Commissioner, people say to me that they think it is time that somebody got to the bottom of this. It has been going on for at least seven years. There have been two big police investigations. You are now involved. The Home Affairs Committee have been involved. There has been all sorts of speculation in the press. I am delighted that you are going to take it over, but what I think people want to know is, can you say to the Committee that you are going to get to the bottom of this and that the people who broke the rules are going to be called to account as a result of your investigation? I think that is what people want to know.
Christopher Graham: I am not planning for failure.
Q176 Steve McCabe: I am not asking if you are planning for failure. I am asking, how confident are you that the buck is going to stop here and you are going to get to the bottom of it? Otherwise you are just another cog and we are not going to be any further on. I am asking that not because I doubt you as a person, but people are fed up, feeling that there has been too much shilly-shallying over this issue for far too long. That is the public perception of it.
Christopher Graham: I mentioned in my weekend blog that I thought there had been a seven-year dither over all this. May I remind you that in a report to Parliament in 2006 my predecessor, Richard Thomas, specifically raised the unlawful trade in personal information, not just about journalists but also about lawyers and about accountants? He put forward the specific proposal that the penalty that is available in the Magistrates’ Courts, for breaches of section 55 of the Data Protection Act, was too puny to have any effect. The seven-year dither is that in this special report to Parliament that recommendation was made, and we have seen no progress.
Q177 Steve McCabe: So you are going to end the seven-year dither? That is what we all want to hear, you are going to end it.
Christopher Graham: In partnership with Parliament, I think we can make progress. But there is uncommenced legislation on the statute book on which this Committee has commented-
Q178 Chair: Sorry, Mr Graham, I think you misunderstand Mr McCabe’s question. He wants the end to a seven-year dither on this issue, on these people who have been waiting to face justice, not the seven-year dither on What Price Privacy?
Christopher Graham: The two are connected. One of the reasons why some of these offences have not attracted the priority they should have done by the police-
Chair: Is because of the penalty.
Christopher Graham: -is because it is seen as not worth the candle.
Chair: Indeed. Thank you.
Q179 Michael Ellis: Mr Graham, if I can go back, please. First of all, to my ears you sound rather dismissive of the press in this matter. You sounded to me like you were bristling, effectively, and that you resent the press intrusion in what you see as your right to pursue this matter as you see fit. You gave evidence to this Committee about headlines and how some were interested in headlines. Can I suggest to you that you are not the one being put upon here? This Committee and others also have an interest in the administration of justice, including people who work in the press in good faith. If it wasn’t for the actions of the press in the first instance and of this Committee latterly, these matters would probably not be in the public domain at all and you would not have anything to investigate, however long we gave you to do it. Do you accept that or not?
Christopher Graham: No, I do not accept that, because it wasn’t the press that drew attention to this problem in 2006. It was the Information Commissioner. I could not help noticing that in the second report, What Price Privacy Now? we had a similar list to the famous 98, which was the 31 newspaper titles and the 305 journalists who were clients of a private investigator.
Q180 Michael Ellis: Do you accept that you are not the only official who is interested in the administration of justice?
Christopher Graham: Of course.
Q181 Michael Ellis: Do you also accept that it is not in the administration of effective justice that there be a seven-year delay before prosecution is pursued, if prosecutions are going to be pursued? I presume you accept that. It is a given, isn’t it?
Christopher Graham: Of course it is a given.
Q182 Michael Ellis: For one thing, when or if these matters do appear before a judge, experienced counsel are very likely to argue an abuse of process, it seems to me, in that the passage of time has elapsed to such a great extent already before these matters have been pursued, while prosecuting authorities knew about these names of individuals and organisations, that the administration of justice has been adversely affected by that type of delay. It is at least an argument that can be put before a court of law.
Christopher Graham: I think we are in danger of re-running last Tuesday. These are questions for SOCA. They are questions for the Metropolitan Police. I have only had this material since 28 August.
Q183 Michael Ellis: You may have only had this material for so long, but you have referred to the administration of justice and I am asking you whether you accept that the fact there has been such a delay is also not conducive to the proper administration of justice. That is what I am asking you for your opinion on.
Christopher Graham: I suppose my opinion is as good as anyone’s on these matters. I would much prefer that offences were followed up as soon as they could be, but I suppose prosecuting authorities are always going to make choices between different-
Q184 Michael Ellis: You have referred to the fact that if names are released then people can act in such a way as to evade justice, but they have had seven years where they could have shredded documents. For example, most companies would routinely destroy and shred documents as an archival procedure after five years anyway, even if they are not trying to hide something. After the elapsing of seven years, a lot of these documents would have gone, irrespective, and they could have gone without the names having been disclosed.
Christopher Graham: If this Committee wants me to get a result from my investigation, then I do ask to be allowed to conduct those interviews.
Chair: No, we understand that. If you could just briefly-
Christopher Graham: But that is the answer to Mr Ellis’ question.
Q185 Michael Ellis: But do you have the resources? You have been asked by other members of this Committee. Where we have seen other authorities with far greater resources than your own office taking so much longer, with a handful of even the best investigators-which I have no doubt that you have-how is it that you are going to make progress when others have made so little progress over such a long period of time?
Chair: If I could have a brief answer. We have to move on because we have other witnesses.
Christopher Graham: Well, let’s see. I ask the Committee to trust me. I have understood what the Committee is saying. We need to make progress. I can keep in touch with the Committee and tell you how we are doing.
Chair: Very helpful. Could we have some quick questions from Julian Huppert and Nicola Blackwood, please?
Q186 Dr Huppert: Do the police take these offences at all seriously?
Christopher Graham: I don’t think the courts take these offences as seriously as they should. I am not sure the police do. I regret to say I don’t think Parliament does, because the penalty for the blagging offence under the Data Protection Act carries a pitiful sentence in the Magistrates’ Court. If you are making a decision about whether a prosecution is proportionate or justified, you have to take into account what is the likely penalty you are going to get for the behaviour. If I can establish a conspiracy and get the whole thing into the Crown Court, then I can go for unlimited fine and the restitution of the proceeds of crime. But if we are dealing with the Magistrates’ Court, the going rate is £150.
This is where Parliament comes in. Members of Parliament simply have to put pressure on Ministers to commence sections 77 and 78 of the Criminal Justice and Immigration Act 2008. I am bored with saying this, but this is an outstanding piece of legislation. I know this Committee has recommended that stronger penalties are available to the courts. I know the Justice Committee has done that and the Culture, Media and Sport Committee has done that. Lord Justice Leveson’s report has done that, and yet this legislation remains uncommenced. Rather than have a debate about whether or not we are going to publish the list, could we not see action on the floor of the House demanding that that legislation is commenced so that we can take effective action against this unlawful trade?
Q187 Dr Huppert: I do agree, Mr Graham. We have discussed this before as you know. Three Select Committees, Lord Leveson and the Committee on the Draft Communications Data Bill have all said that this should be brought ahead. I do agree that we need to make sure that that legislation-which has already of course been passed by Parliament-is implemented. If we do, do you think the police will then start to take these issues seriously? It does seem to me that SOCA have had this and essentially not passed it on to you, because they did not think it was an important thing that was worth bothering with, which puts you in a difficult position. You are coming in at the end of a long series of delays and we are very keen to see this resolved, as I am sure you understand.
Christopher Graham: Yes.
Q188 Dr Huppert: What could we do to get SOCA or any other body to care about this?
Christopher Graham: I don’t know what the priorities are within the Serious Organised Crime Agency. The ICO is rather tail-end Charlie on all of this. But I do not think it is a question of whether the police and the courts take it seriously. It is whether the private investigators get the message. It is whether those who are in charge of personal information understand that playing fast and loose with people’s personal information could get you sent to prison. If the courts do not take it very seriously, and the police do not take it very seriously, and it appears that Parliament does not take it very seriously, and Ministers do not take it very seriously, then why should the ordinary Joe in some public office take it very seriously either? So there is a strong message to be sent. We are increasingly dependent on technology, where all our information is, within banks, building societies, insurance companies and so on. Parliament should demand that private information is kept private. It is very difficult for the poor old regulator to enforce the legislation if it is supported by such a weedy penalty in the Magistrates’ Court.
Dr Huppert: I think we agree, and perhaps, Chair, we should remind the Justice Secretary about our previous recommendation on this.
Chair: We certainly should, Dr Huppert. I will do so tomorrow.
Q189 Nicola Blackwood: Mr Graham, I take your points about the improvements needed to the legislation. You are talking to the converted. These are recommendations that this Committee made over a year ago and other Committees have made. The Home Secretary has already announced that legislation will come forward for licensing of private investigators. So there is movement coming in this area.
My concerns are that some of the lessons, which were put forward in Operation Motorman, do not appear to be being learned by the various different agencies that are supposed to be taking them up. Some of the comments you have made seem to be slightly contradictory to the evidence we have already heard. You are expressing your pleasure that you have now received this evidence and you can undertake this investigation before the finalising of Operation Tuleta in 2015. But we were given evidence by Trevor Pearce that said that when SOCA and the Met made their decision in 2010 that they would not release their evidence to you until after Tuleta had finished in 2015, you were fully involved in that decision and were very happy with it. So I am not quite sure about how that has occurred.
Christopher Graham: I am delighted to have the material to work on now and I am working on it. I do not think that is inconsistent with accepting the decision of the Metropolitan Police and the Serious Organised Crime Agency earlier on in the case that material that was coming to us would come at the end of their process, because I did not know what they were doing in another part of the wood, and I think this is-
Q190 Nicola Blackwood: It was a five-year delay. You did not fight to get the material earlier because a five-year delay would have undermined your effectiveness?
Christopher Graham: I don’t know what the Committee expects me to do on these occasions, am I supposed to-
Nicola Blackwood: It is not the Committee. I am just trying to understand-
Christopher Graham: Yes, but what could I or my staff have done when that was put to us by the Met or SOCA? Do we say, "Please send us all the evidence you have, and we will then review whether we think it is reasonable for you to hang on to that until you have finished the investigation that you are undertaking that we don’t know about"?
Q191 Nicola Blackwood: When they say that you were fully involved in the decision what they really mean is that they told you?
Christopher Graham: They told us, yes.
Q192 Nicola Blackwood: You did not have a choice about whether you received the evidence or not. They just informed you?
Christopher Graham: In effect, yes, but now we have it and now we are cracking on with it.
Chairman, you will remember that I wrote to you on 25 April-and this was copied to all members of the Committee-about the sweep that we were doing, inviting the legit private investigators to blow the whistle on the rogues. This was a campaign to help the legitimate private investigator sector because, as a result of the work of this Committee and what had come out in the Leveson Inquiry, we were aware that there were dirty things going on and we were looking for evidence. I have to tell you that, despite writing round to all and sundry in the sector, and despite writing to every member of this Committee, we have only had two substantive responses to that trawl for evidence. Those two substantive responses do give us some evidence to work on and we are working on prosecutions under section 55. But I cannot help thinking that if this was the huge issue that this Committee believes it is and that Fleet Street believes it is, we would have had a bit more of a response to that call for evidence because the legit trade has every interest in driving the rogues out of business.
Q193 Nicola Blackwood: Yes, I do understand that. I have one more question for you, Mr Graham. This Committee received this list of names on 22 July and there has obviously been huge press speculation since then around whether we will publish or not. You chose to contact the Committee after the last session, which you said you saw, when there were the comments about publishing. I wonder why you did not choose to contact us in the period when there was so much speculation, because I understand Mr Pearce spoke to you about the fact that he was sending the information across to us.
Christopher Graham: I naturally monitored what was going on over the summer. I saw the Committee proceedings. I forget when I have had various conversations with the Chairman.
Chair: I think we had our first conversation last week.
Christopher Graham: I think I contacted you on 2 September to say that I had received the material.
Chair: Yes. That was last week. You had not contacted me between 16 July and 2 September.
Christopher Graham: Yes, well, I don’t know whether I should have done because we had no material then.
Chair: Miss Blackwood is making that point, Mr Graham.
Q194 Nicola Blackwood: I was just wondering, given all the speculation and given how worried you are about the impact on your investigation, if at any point you thought to contact us.
Christopher Graham: I did not know until last Tuesday that you intended to publish the 98 names, and I was rather gobsmacked about that so I thought I had better get in touch.
Nicola Blackwood: It has been in a lot of newspapers.
Chair: After, of course, speaking to SOCA.
We are coming to the end of the session. To the other witnesses who are coming for the European Arrest Warrant, my apologies. We will be coming to you very shortly.
Q195 Chris Ruane: You have reacted quite quickly, quite strongly, to this Committee’s threat to publish the list. We have heard, though, that some information is already out there. How much information is already out there? Is what has been published a threat to your inquiry and successful prosecution?
Christopher Graham: It doesn’t help. I have not gone through each name that I have seen in the press to relate back to the material that we have. I am just getting on with the investigation that we are doing. I hope very much that the Committee will decide to give the Information Commissioner and the ICO the benefit of the doubt, allow us to get on with this on the understanding that we are going to keep in touch and tell you how we are doing. I also hope the Committee will be reassured by the fact that next week we have a get-together with the other regulators-in particular, the Solicitors Regulation Authority and the Financial Conduct Authority-because there are some strong messages we need to send to professionals about what is legitimate when you are investigating things and what is not. That is the role of the Information Commissioner, to make sure that the Data Protection Act is understood as well as being observed.
Chair: Indeed. But again, the regulators were not contacted until after the Committee began its deliberations. This meeting has only just been set up. Mr Pearce told us last week that it has been set up for the 19th. No one had contacted the regulators prior to the fact that we had held these hearings.
Mr Ellis has a quick point and then I will sum up.
Q196 Michael Ellis: Mr Graham, quite clearly you want us to sit on this list, but it seems to me all the names are gradually leaking anyway. Why should this Committee not follow the old adage of the first Duke of Wellington, "Publish and be damned"?
Christopher Graham: Because the people who you will be damming are innocent until proven guilty. They are only on the list because they are clients of some private investigators who have then turned out to be criminals. You cannot justify the publication of the 98, and by the way there is no imputation here that anyone has done anything wrong.
Michael Ellis: No.
Christopher Graham: The individuals concerned may not know anything about it. It is going to make the job of running to justice those who have done something wrong infinitely more difficult. I think the Committee has made the point. You have made tremendous progress. It is a win/win for you if you stay your hand and the Information Commissioner, having heard what you have to say, gets on and gets a result. If you insist on publishing, it will it make it very difficult for me and my staff to get those convictions and to impose regulatory action. We are up against some very smart lawyers who will use every trick in the book to get their clients off. Please do not make my job more difficult.
Michael Ellis: Indeed. Thank you, Mr Graham.
Q197 Chair: Before I sum up, can I just clarify? You were Secretary of the BBC before you took on this position. Is that right?
Christopher Graham: I was the Director General of the Advertising Standards Authority immediately before this. Many years ago when the BBC Secretary ran between the senior management and the board of governors, that was me.
Q198 Chair: The BBC were involved in instructing private investigators at some stage. You were not involved in any of that?
Christopher Graham: No.
Q199 Chair: I just thought I would clarify it. Last time we had the chairman of SOCA in. We want to be clear that all the interests are being declared. Thank you very much for clarifying that.
Secondly, you mentioned that you wanted two weeks. Right? From the time you received the evidence you wanted to do a scoping note in two weeks. According to my calculation you received it on 28 August and you immediately set to work on dealing with it. Your two weeks are up tomorrow.
Christopher Graham: I said when we spoke on the telephone that-
Chair: No, what you said to the Committee today is you need two weeks to do the scoping.
Christopher Graham: Yes. I said two weeks from last Friday.
Chair: Oh two weeks Friday?
Christopher Graham: Two weeks from 6 September. I think that takes us to about 23 September.
Q200 Chair: That is fine. We just want to be very clear on times. You received it on 28 August. You instructed scoping to be done on 6 September and those 14 days are going to be finished when?
Christopher Graham: I think I will be in a position to get a report from my Director of Operations and Head of Enforcement on 23 September.
Q201 Chair: That is longer than two weeks.
Christopher Graham: It is two weeks from 6 September, which was a Friday.
Q202 Chair: Is it? I thought that would be 20 September, but I was not very good at GCSE maths.
Christopher Graham: The 21st is a Saturday, I know that. The 22nd is a Sunday. The 23rd is a Monday.
Q203 Chair: You mean working days. You want 14 working days?
Christopher Graham: Yes.
Chair: You will finish your scoping note by 23 September. By then you will be in a position to tell this Committee exactly where you think this investigation is going?
Christopher Graham: I do not envisage reporting to this Committee on a weekly basis, but I am saying that as the Information Commissioner I will know how I am placed.
Q204 Chair: Mr Graham, please, we are not asking you to report on a weekly basis. To be frank, we just want to be clear, because this Committee has had a lot of deadlines given to it in the past. We just want to be clear.
Christopher Graham: Sure.
Chair: You are asking us to do something. If we make the decision on the basis of what you are saying, we need to be satisfied that this is going to be done. So if it is 14 days, it is 23 September that your scoping note will be completed.
Christopher Graham: I am not suggesting to this Committee that on 23 September you would be well advised to go ahead and publish.
Q205 Chair: No, I know that. I am not asking that.
Christopher Graham: That is where we are heading.
Chair: Please don’t answer a question I am not asking.
Christopher Graham: I am just trying to speculate where this Committee may be heading.
Chair: Mr Graham, I assure you-do not speculate about this Committee-it is just facts that we want today.
Christopher Graham: I won’t speculate about your Committee if you don’t interfere with my investigation. It is as simple as that.
Q206 Chair: We are not doing that. I am asking you for a timetable, and you are not giving me a timetable. At the end of those 14 days, there is no need for speculation as to what we will do. What will you be in a position to do?
Christopher Graham: As Information Commissioner, I will be in a position to work out how the investigation is going to proceed; what warrants we need to obtain; who we are going to see, and so on. It is the next stage.
Chair: Thank you.
Christopher Graham: When I saw you on Friday, Chairman, I suggested it might be helpful if I attended your meeting. First of all I said, "Should I come on Tuesday?" but then I said, "What about your meeting on 8 October?" I am very ready to attend the Committee on 8 October if that helps you.
Q207 Chair: That is very helpful. So in 14 days, by 23 September, you will have a scoping note. By 8 October you will be able to come before the Committee and you will be able to give us some answers.
Christopher Graham: Further information about how things are going.
Q208 Chair: But you are telling this Committee very, very clearly that you think that if we publish this list, this will impede your investigation and therefore-in answer to what has been put to you by Mr Winnick-that will not be in the interests of justice. Is that what you are telling us?
Christopher Graham: That sums up my position perfectly, Chairman.
Q209 Chair: Finally, what is going to happen about the victims, because we have not heard a lot about the victims? Obviously we have heard about the clients and we have heard about those who have been convicted, but from the start of this whole investigation the Committee has been very concerned about the victims. How are you going to trace these victims and how are you going to inform them and deal with them?
Christopher Graham: Contacting the inquiry subjects is a very important part of this investigation. The testimony of those who were targeted will help us to understand what the various assignments were all about, so it is absolutely what we need to do next to do our investigation.
Q210 Chair: Of course. You will have to contact the victims, so they will then know.
Christopher Graham: Yes.
Chair: Yes. Mr Graham, we are most grateful. Thank you very much for coming in. The Committee is meeting tomorrow again, when the DPP is before us. We will deliberate on these matters on that occasion.