A schoolgirl was murdered

The task of driving invasions of privacy out of press behaviour does not require constant invocation of the death of 13-year-old Milly Dowler a dozen years ago.

David Elstein
14 July 2014

At the end of the long, expensive and sometimes perplexing phone-hacking trial, the judge offered perhaps its most bizarre moment. In sentencing Andy Coulson, the former editor of the now defunct News of the World, to 18 months’ imprisonment, he described as “unforgiveable” the hacking of the voice mail of schoolgirl Milly Dowler, who went missing in March 2002, and the short delay in telling the police that the paper may thereby have uncovered a clue as to her disappearance. Oddly enough, the person who had actually hacked the phone – Glenn Mulcaire – was given a suspended sentence, for this and hundreds, if not thousands, of other hacks, partly because he had pleaded guilty, and partly because he had previously served a six-month sentence for hacking the phone of Prince William’s private secretary. (“You are the lucky one,” said Mr Justice Saunders.)

The judge rejected as a bit rich Mulcaire’s claim that he thought he was helping the police in hacking Milly’s phone. Yet he seemed surprised that a newspaper might pursue a story about a missing child, not out of public-spiritedness, but in order to attract readers. Presumably Rebekah Brooks was lucky not to have been charged for the “offence” of offering a £100,000 reward for information to help find Milly, as she did as editor of The Sun in May 2002; given that her “real” motive in doing so must have been to sell more copies of her paper (though quite why finding Milly would have sold more copies of her paper than anyone else’s is hard to say). Perhaps someone should explain to the judiciary that the main reason why any newspaper publishes any story is to increase circulation, in the short or long run.

The two laws protecting privacy

Like most forms of “blagging” – securing personal information by deceit – interception of voice mail is illegal. Unusually – thanks to the RIPA (Regulation of Investigatory Powers Act 2000), which was designed to prevent illicit telephone eavesdropping – it is also an offence for which there is no public interest defence, for journalists or anyone else. It carries the risk of up to two years of imprisonment: whereas similar offences, such as obtaining private bank statements, health histories or criminal records, typically only carry a maximum sentence of a fine of £5,000 under section 55 of the DPA (Data Protection Act 1998): and even that has rarely been imposed.

The vast extent of blagging and hacking that took place at the News of the World and its sister paper The Sun was by no means unusual. During the last two decades, nearly all tabloids routinely employed private investigators to dig up personal information: so, too, by the way, did lawyers (especially divorce lawyers), insurers (investigating possibly fraudulent claims) and blue chip public companies.

The News of the World used an investigator with a slew of media clients, Steve Whittamore, to find out the telephone numbers of the Dowlers after their daughter disappeared. However, it was Milly’s school friends who gave the paper her mobile number – and its in-house retained investigator Glenn Mulcaire was tasked with finding and listening to her voice mail messages. He interpreted one of them as an invitation to a job interview. A team of News of the World reporters descended on Telford expecting to find the missing girl, but returned empty-handed. Mulcaire had mis-heard the name: and it was a wrong number.

The scale of organised breaches of the DPA was fully exposed by a series of police operations a decade or more ago, of which the most important was codenamed Motorman. The offices of Whittamore had been raided in 2003, the year after Milly Dowler disappeared, and his records showed that in just a few years he had commissioned more than 10,000 searches for private information, most of which were almost certainly illegal under section 55. His clients included 305 journalists, including 58 from the Daily Mail alone: records showed 1,230 transactions with the Mail group, 1,679 with the Mirror group, 103 with The Observer, 65 with the Express group and 258 with News International. Rate cards were discovered listing £200 to conduct an (illegal) vehicle check at DVLA, £500 for an (illegal) criminal records check and £750 to obtain (illegally) a mobile telephone account’s details.

No doubt the transactions with The Observer (part of The Guardian stable) were for such mundane (and legal) activities as tracing addresses from electoral registers. However, the Information Commissioner, Richard Thomas, was convinced that one of the reasons why blagging was so widespread was that section 55 offences carried no option of a custodial sentence. Yet his recommendation that the law be changed so as to provide such sentences was resisted by politicians and media groups (including the BBC, claiming that it might chill investigative reporting, so ignoring the explicit public interest exemption in the Act).

Nothing happened, despite Thomas publishing a hard-hitting account of Motorman in 2006, with a follow-up report later in the year. Despite Leveson, despite the universal condemnation of hacking (which is actually no worse than a great deal of other blagging), despite the impending replacement of the Press Complaints Commission, despite the closure of the News of the World, despite lengthy parliamentary debates (which saw the emergence of the Royal Charter concept) as to how to deal with press regulation, more than a decade has passed since the raid on Whittamore, and we are no further forward.

The phone-hacking trial outcome

The Guardian’s Nick Davies – scourge of the Murdoch press and chief exposer of the phone-hacking scandal – readily acknowledged that, had he been on the jury (and he attended most of the trial) he would have voted to acquit Brooks. Private Eye, however, was much more dismissive of the triumphant claim by some newspapers that Brooks had emerged from the process without a stain on her character. How could she not know what – as one witness put it – even the office cat knew? Was she turning a blind eye? Was she simply indifferent? Or – as the Eye suggested – just incompetent? The truth is more complex.

Whether or not she knew precise details of Mulcaire’s engagement, or that hacking was taking place at all, Rebekah Brooks can have been in no doubt that, as her newspaper spent a great deal of its time, resources and column inches on revealing the private lives of those in the public eye, not all the information used can have been legitimately obtained. Frankly, it strains credulity that both she and Coulson claimed not even to know that hacking was illegal until Mulcaire and the “royal” editor of the News of the World, Clive Goodman, were arrested for listening to the voice mails of Prince William’s private secretary (admittedly, at one point even the Metropolitan Police seemed to believe that it was only “interception” – listening to messages before the intended recipient did so – that was illegal). Astonishingly, such was the dog-eat-dog mentality that prevailed in Fleet Street at the time – and even between titles in the same ownership, like the News of the World and The Sun – the phones of both Brooks and Coulson were also repeatedly hacked: Coulson at least 19 times, and Brooks more than 40 times in 2006 alone, when they were rival editors of those titles.

However, as with captains of industry who employ very expensive investigators to discover everything there is to know about rivals, or top law firms who use cheaper chaps to find out where errant spouses had squirrelled their cash, proving guilty knowledge of the use of illegal techniques would always be hard with the people at the top: deniability is all. So, the obverse side of Leveson’s roaming freely through press misdemeanours without having to launch any legal proceedings was the requirement for the Crown Prosecution Service only to deal with specific criminal acts.

The trouble was that pinning any one of these on Brooks herself was problematic. Despite the Milly Dowler hack having happened on her watch – such that the CPS repeatedly referred to it when announcing her arrest – it transpired that she was on holiday at the time, and that it was not possible to nail down the times of telephone calls between her and her deputy (and occasional lover) Andy Coulson ahead of the presses running (one edition that week even carried a reference to the Milly voice mail), because of confusion over the difference in time zones between London and Dubai.

It did not help the very able prosecutor, Andrew Edis QC (who had put away the equally high profile Chris Huhne and Vicky Pryce for perjury) that some of his evidence, and more than one of his witnesses, fell apart in court, under scrutiny and cross-examination by the very expensive defence legal teams (News International is thought to have spent £50 million on fees). Yet the real problem was that “a culture of invading privacy” (as one CPS lawyer characterised the underlying rationale for the prosecution process) was not itself on trial: against Brooks and her immediate co-defendants, there were specific charges, but only circumstantial evidence and unanimous acquittals.

The rationale for prosecution

Having spent £20 million on this part of an overall £40 million budgeted for investigating alleged crimes by Fleet Street journalists (primarily but not exclusively from News International), the police could scarcely abandon the Brooks case because the direct evidence against her on phone-hacking was so weak. Likewise, the CPS could scarcely refuse to take the case to trial, for fear of provoking accusations of yet another cover-up. And even Mr Justice Saunders must have felt it was better all round for a jury to reach a verdict than for him to throw all the phone-hacking and conspiracy charges out when invited to do so by Brooks’ QC, Jonathan Maitland (though he did dismiss another charge, of corrupting public officials, when it became clear the prosecution did not even know who had supplied the News of the World with a risqué photo of Prince William in a bathing suit at a private party).

What did the prosecution no good was dragging in to the conspiracy charges Rebekah Brooks’ husband, former personal assistant and former head of security. Of course, without someone to conspire with, there could be no conspiracy, only a charge of obstruction of justice: but Charlie Brooks, Cheryl Carter and Mark Hanna presented, respectively, faces of foolishness, scattiness and injured innocence which seemed a step (if not a mile) away from the murky world of blagging and hacking. Moreover, Mr Maitland chipped away at the 550 tasks that Glenn Mulcaire had been set during her editorship of the News of the World, arguing that all but 12 of them could well have been blaggings (for which Brooks faced no charge) rather than hackings (Mulcaire’s own office white-board displayed “elint”, or electronic intelligence, as just one of half a dozen areas of planned activity).

After the trial, the CPS lawyer who defended the hugely expensive process as being “required to explore a culture of invading privacy” was roundly condemned for doing so (wasn’t that the role of Leveson?), and even disowned by his bosses. Yet, even if inadvertently, all he was revealing was that neither Leveson nor these show trials were the answer to the problem: an answer that Richard Thomas had identified in 2006 – namely, much tougher sentences for all blagging offences, and much stronger support for his stand from politicians and the press.

How best to protect privacy

It was symbolic of the battle between the warring parties in the press regulation debate that the name of Milly Dowler was invoked on all sides. Those accused of hacking, whether convicted or acquitted, all apologised profusely to the family. Yet a sensible roster of privacy laws would not only provide custodial sentences for the worst cases of blagging, but also allow a public interest defence for hacking. Of the hundreds – perhaps thousands – of hacks that have cost News International half a billion pounds in compensation and legal costs, the hacking of Milly’s voice mail was almost the only one which could have been justified in the public interest. If she were dead when it happened, it could do her no harm; if alive, it might just provide a clue for her desperately worried family to find her. Our collective hysteria over “dead schoolgirl’s phone hacked” (as if the News of the World knew she were dead when it happened) is surely misplaced.

But the emotive force of that misleading phrase is undeniable. When The Guardian published its false claim that News of the World journalists had not just hacked Milly’s phone but had deliberately deleted messages so as to create room for new ones – thereby giving her parents a “false moment of hope” when they found that there was suddenly room on her voice mail for new messages, implying she had listened to, and deleted, earlier ones – it indelibly imposed an untrue story on top of an important and true one: though probably not so important as to dislodge the News Corp bid for BSkyB, which the false story played a significant part in achieving. (Oddly enough, in his otherwise judicious and lengthy report on the trial, Nick Davies felt unable to resist reviving yet another false Guardian story: that Jeremy Hunt had been on the brink of approving the BSkyB bid when the Milly Dowler revelation scuppered it. The truth was that Hunt had handed over full responsibility for approving the bid, or referring it to the Competition Commission, to Ofcom and the Office of Fair Trading, on the day he took over ministerial oversight of the process from Vince Cable.)

The battle over whether or not the press should “mark its own homework” (in a favourite slogan from Hacked Off) is misconceived. All kinds of professions, who can inflict just as much damage on members of the public as journalists, do the same thing: lawyers and doctors being the most obvious examples. The issue is not whether the state should institute direct regulation (which would raise a whole range of other concerns) but whether the regulation on offer meets the needs of the general public. The Bar Council and the BMA have encountered serious criticisms in their time, but these have mostly fallen short of demands for state intervention.

We should be less fixated on structures, and pay more attention to outcomes. It would serve the press well at long last to support the Richard Thomas call for custodial sentences for section 55 offences. It would serve the planned new press self-regulator – IPSO – even better if it made clear from the outset that every breach (other than those exempt on public interest grounds) of section 55 or the RIPA brought to its attention would attract a fine of at least £10,000, with subsequent breaches by the same newspaper group subject to fines double the level of last fine imposed, all the way up to the £1 million maximum provided for in its membership rules. That would deal far more effectively with protecting privacy than any Royal Charter or other device dreamed up by Hacked Off, without any danger of being denounced as a threat to freedom of the press.

Who are the victims here?

Of all the calamities that befell the Dowler family, the hacking of Milly’s voice mails was surely the least – especially since the false story in The Guardian induced News International and Rupert Murdoch personally to compensate them and their chosen charities to the tune of £2 million. At the time that Mulcaire hacked her phone – which the Surrey police belatedly revealed was after the “moment of hope” – nobody knew that she was dead. Even a month later, when The Sun offered its reward, detectives were still saying she had not been violently abducted. The Surrey force may or may not have done something as obvious in the search for her as to track through her voice mails, but at least the News of the World, having done so, made three separate approaches to the police to ensure that a transcript of what they regarded as a significant call was in official hands. It meant Milly no harm: it did Milly no harm.

All the public outrage that flowed from the revelation in The Guardian made it seem as if the News of the World – not for the first time – had invaded the privacy of a murder victim, rather than trying to help find a possible runaway. Yet for nine years it did not seem to occur to any police force that the hacking was itself a crime that needed investigation, let alone an investigation that used twice as many detectives over three years as had been assigned to the unsuccessful search for Milly for a few weeks.

It was the psychopath, Levi Bellfield, who abducted and murdered the Dowlers’ child. A botched police investigation failed to follow up Bellfield as the likeliest suspect (there had been another attempted abduction of local girl the previous day: a charge for which crime he avoided prosecution thanks to tabloid publicity immediately after his conviction for Milly’s murder). The failure by the Surrey police to keep pursuing Bellfield after he had evaded their initial inquiries had allowed him time to commit two more murders of young females and the attempted murder of a third, and delayed the retrieval of Milly’s body for months, such that the exact cause of death could not be determined.

The English legal system then allowed Bellfield to offer an alternative theory of the crime, suggesting Milly had run away from home. Bob and Sally Dowler were thereby exposed to an excruciating cross-examination, during which he admitted possession of pornography: afterwards, he said “we felt like we were on trial”. Bellfield pleaded not guilty, and refused to give evidence in the witness box: the truth of how Milly died is still denied to her parents. After Milly’s disappearance, a jailed paedophile sent death threats to Milly’s mother, and was sentenced to a further five year term; a woman sent a series of messages to the parents and police claiming to be a still-alive Milly, and received a five-month sentence for harassment; and a mentally disturbed man sent a flow of emails claiming that Milly had been smuggled out of the country. He was sectioned indefinitely.

The Dowlers might not be able to see that they themselves have become victims in two other instances: in acting as spokespersons for the self-styled victims of press misbehaviour, they have installed themselves alongside Christopher Jefferies (wrongly accused – briefly – by Avon and Somerset police of the murder of his neighbour, Joanna Yeates) and Gerry and Kate McCann (wrongly accused by Portuguese police of complicity in the disappearance of their daughter Madeleine). Jefferies and the McCanns have received massive (and tax-free) libel settlements from a range of newspapers which publicized and amplified the police errors: the kind of money only a small minority of UK citizens would be able to accumulate in their working lives.

Are they really victims of a vile press, as much as of police mistakes? Ironically, Rebekah Brooks, in The Sun, led a strong campaign for David Cameron to intervene in the search for Madeleine McCann: as a result, Londoners have seen £6 million of their council tax spent on a Metropolitan Police operation to find a Leicestershire child abducted in Portugal.

The Dowlers have now become willing pawns in the battle for press regulation, having been induced – by a combination of The Guardian and their own lawyer, Mark Lewis, both embattled opponents of the Murdoch press – to believe that the News of the World had indeed deliberately deleted messages on Milly’s voice mail. Mark Lewis called this supposed behaviour “heinous and despicable”. The Guardian claimed that, “according to one source” (no prizes for guessing who) it had had “a devastating effect”.

As we now know, it never happened, so the “source”, or The Guardian, must have made this whole aspect of the story up themselves, so inducing a false hatred of a non-existent act (at the time, in March 2002, the “moment of hope” received no publicity). That these hugely well-compensated non-victims of News International were then promoted to starring roles in the Leveson Inquiry and the Hacked Off campaign reflects the brilliant opportunism of the Hacked Off team. As soon as the Brooks verdict was announced, a video of Gemma Dowler (Milly’s older sister) was made available, and used by all news outlets, calling on David Cameron to fulfil his pledge to “the victims” to deliver Leveson-style press regulation. I do not think she meant regulation by Ofcom (which Leveson recommended and Ofcom promptly rejected); rather regulation through a Royal Charter body (something Leveson never mentioned, let alone recommended): only the puppet-masters pulling her strings could tell us.

So Milly Dowler has ended up being exploited, not by the News of the World, but by all those opponents of the excesses of the tabloid press who wanted to use the most emotive stick they could find with which to beat the miscreants. Shroud waving is an unattractive campaigning tactic at best. To see that even her family are now complicit in the political exploitation of the cruel murder of a pretty 13-year-old schoolgirl fills me with shame. Surely it is now time to let the poor child rest in peace.

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