Daily Archives: February 29, 2012

Leveson Inquiry – Data Protection Act request for information

RE: Urgent – For Kim BrudenellFriday, 24 February, 2012 12:57

From: “Leveson Inquiry Solicitors Team”Add sender to ContactsTo: “‘robert henderson'”, “Leveson Inquiry Solicitors Team”Dear Mr Henderson

Thank you for your email the contents of which are noted.

I appreciate that you have long standing concerns regarding Mr Morgan. The Inquiry’s position was made clear in our emails of 15 and 16 February and I have nothing to add to that.  If, however, the position changes and the Inquiry does require a statement from you, we will let you know.

Yours sincerely

Kim Brudenell

Solicitor to the Leveson Inquiry

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Miss Kim Brudenell

Solicitor to the Inquiry

Leveson Inquiry

Royal Courts of Justice

Strand

London WC1

29 February  2012

Dear Miss Brudenell,

As I pointed out in my last email a failure to answer reasonable questions is evidence against the refuser.   Your blanket refusal  speaks volumes.

I am going to send more  information which is every bit as strong as that which I have supplied. If you refuse to use that evidence and call me as a witness the dishonesty of the Inquiry process will become ever more obvious and extreme.

For the moment I shall content myself with sending some immediately pertinent information . This involves the  failure of the Metropolitan Police to investigate Rebecca  Brooks (then Wade)  after she had admitted to a select committee that the police had been paid for information  while she was a News International  editor.  (I was at the hearing when she made the admission)

My letters of complaint to the police in 2003  urging them to investigate  Brooks/Wade’s admission and  commentary on the  failure of the police to investigate are below.  (see  https://livinginamadhouse.wordpress.com/2011/04/16/the-refusal-of-the-police-to-investigate-rebekah-wade/).  The police refused to even answer the letters – they indubitably received them because they were sent by recorded delivery – so desperate were they not to get involved..

I also include letters to the MP Chris Bryant who asked the question of  Brooks/Wade which elicited her admission of payments to the police (ibid). Bryant did nothing to get a prosecution started. You will also see that my letters to the Metropolitan Police were copied to each member of the DCMS. Neither individually nor as a committee did they act to see an investigation of Brooks/Wade was begun.  All of this speaks to the unhealthy relationship between MPs and the Murdoch press and probably  the relationship between  politicians and the media generally.

Two other things.  I wish to make applications for information under the Data Protection Act (DPA) and the Freedom of Information Act (FOIA).

I make a formal subject access request under the DPA for all information you hold on me.  Under the 1998 Act that means not only the information held in digital form but any other data held in a searchable filing system. That can be as simple as a folder holding documents marked with a name, number or other signifier.  The information you supply to me should include copies of any data I have sent to  the Inquiry. You have 40 calendar days from today to supply the information or give reasons for refusing to do so.

As for the FOIA,  please inform me whether the Inquiry comes within  remit of the Act. If you claim it does not please give your reasons.

Yours sincerely,

Robert Henderson

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RE: Urgent – For Kim Brudenell – new evidenceWednesday, 29 February, 2012 17:08

From: “Leveson Inquiry Solicitors Team” Add sender to ContactsTo: “‘robert henderson'” , “Leveson Inquiry Solicitors Team” Solicitors.Team@levesoninquiry.gsi.gov.uk

Dear Mr Henderson

I acknowledge receipt of your email, the contents of which are noted.

Your applications for information under the Data Protection Act (DPA) and the Freedom of Information Act (FOIA) have been passed to the Secretariat and you will hear from them shortly.  You may wish to consider the FAQ’s on the website, which may assist you.

Kind regards

Sharron Hiles

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Ms Sharron Hiles

Asst solicitor to the Inquiry

Leveson Inquiry

Royal Courts of Justice

Strand, London WC1

4 March   2012

Dear Ms Hiles,

Thank you for your email of 29 Feb.   I see from the  FAQ that the Inquiry  does not come within the remit of the FOIA.  However the Inquiry does promise that  it “will endeavour to conduct proceedings in an open and transparent manner.  As part of this, as much information as possible will be provided on this website.” Taking this commitment to transparency  at face value I ask the Inquiry for the following information:

1.  The number of people who have submitted evidence to the Inquiry.

2. The number of people who have been or will be called to give oral evidence.

3. The number of people who have supplied  the Inquiry with a letter from a Fleet Street editor in which the editor admits to receiving information from the police in circumstances which can only be illegal.

4.  The number of people who supplied the Inquiry with  evidence of the police failing to investigate complaints of police officers supplying information illegally  to the press.

5. The number of people who have supplied the Inquiry with evidence of the PCC failing to adjudicate  on complaints.

I ask for the most up-to-date answers to these questions.

The Inquiry Secretariat has yet to contact me.   I would be grateful if you can remind them to contact me ASAP.  An answer to my subject access request under the Data Protection Act is of course a legal requirement.

Yours sincerely,

Robert Henderson

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156 Levita House, Chalton Street, London NW1 1HR Tel: 0207 387 5018Email: anywhere156@yahoo.co.uk

Ms Sharron Hiles

Asst solicitor to the Inquiry

Leveson Inquiry

Royal Courts of Justice

Strand, London WC1

10 March 2012

Dear Ms Hiles,

I have not had a reply from you to my email of 4 March (copy below) , nor, despite your promise that they would do so,  has the secretariat contacted me.

Please let me  know  ASAP where I stand with regard to both my subject access request and my additional request for information in lieu of  an FOIA request.

Yours sincerely,

Robert Henderson

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Leveson InquiryFriday, 16 March, 2012 15:19

From: “Jeffery, Amanda (DJO-JO)”Add sender to ContactsTo: “‘anywhere156@yahoo.co.uk'”Dear Mr Henderson,

I am sorry for the delay in acknowledging receipt of your request for information under the Data Protection Act 1988.  Under the terms of the Act, we are required to provide you with a response within 40 days.  I will, therefore, write to you with a full response to your request by Monday 9th April 2012.

I have also been passed the other questions you have asked in relation to the Inquiry, in your email of 4th March.  We will provide you with an answer to these questions at the same time, namely by 9th April 2012.

Yours sincerely,

Amanda Jeffery

Amanda Jeffery | Leveson Inquiry:  culture, practices and ethics of the press | Royal Courts of Justice | Strand | London | WC2A 2LL | Telephone 020 7947 7837 or 07759 609835 | http://www.levesoninquiry.org

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The Leveson Inquiry

culture, practices and

ethics of the press

 

R Henderson Esq

3 April 2012

 

Dear Mr Henderson,

 

Subject Access Request

Thank you for your email of 29 February 2O12, in which you made a Subject Access Request (SAR) asking for all information on you held by the Leveson inquiry. Your request has been handled under the Data Protection Act 1998 (DPA).

 

We have now completed a search of our records and can confirm that the inquiry Team does hold personal data within the scope of your request. That personal data is being processed for the purposes of the requests and enquiries you had made of the Leveson inquiry.

 

The attached schedule shows the personal data that you are entitled to under section 7 of the DPA; as you are a recipient or the originator of each of these emails or communications, I do not propose to send you a further copy. However, if you would like to see any particular documents then I will arrange for copies to be sent to you.

 

You can find out more about the right of access to personal data under section 7, by reading the extract from the Act attached at the end of this letter.

 

You can also find more information by reading the full text of the Act, (available at http://www.lesislation.gov.uk/ukpsa/1998/29lsection/7) and further guidance http://www.ico.gov.uk/for organisations/data protection/subject access requests.

 

You have the right to appeal our decision if you think it is incorrect. Details of how to appeal are annexed to this letter.

 

Request for Further information

 

You have also requested certain other information from the Inquiry. As you are aware, the Inquiry is not covered by the Freedom of Information Act, but Lord Justice Leveson has indicated that the Inquiry will be conducted in an open and transparent manner. With that in mind I can answer your questions as follows:

1. The number of people who have submitted evidence to the Inquiry: we do not have an absolute number of submissions that we have received, as the inquiry is still inviting and accepting submissions to the Inquiry and so the number is constantly changing. I can tell you, however, that the Inquiry has heard oral evidence from 258 witnesses, and has published their witness statements on the inquiry website. The evidence of a number of other people has also been read into the inquiry and, again, their submissions have all been published on our website. Finally, we publish monthly updates of the number of emails, submissions and other enquiries that have come in; you will find this information in the “About the Inquiry” section of the website.

2. The number of people who have been or will be called to give oral evidence: by close of play on Wednesday 4th April, the Inquiry will have taken oral evidence from 258 witnesses. It is not possible for us, at this point, to know how many witnesses will be asked to give evidence during the remainder of the inquiry.

3. The number of people who have supplied the Inquiry with a letter from a Fleet Street editor in which the editor admits to receiving information from the police in circumstances which can only be illegal: the inquiry does not specifically record information in this way. It is, of course, open to you to review the statements that have been published on our website.

4. The number of people who supplied the inquiry with evidence of the police failing to investigate complaints of police officers supplying information illegally to the press: the inquiry does not specifically record information in this way.

5.The number of people who have supplied the inquiry with evidence of the PCC failing to adjudicate on complaints: again, the inquiry does not specifically record information in this way.

Amanda Jeffrey

(PP by N Mossally)

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Ms Amanda Jeffrey

Leveson Inquiry

Royal Courts of Justice

Strand, London WC1

11 April 2012

Dear Ms Jeffrey,

Thank you for your letter of 3 April in response to my subject access request under the data Protection Act (DPA).

I shall be making a complaint to the Information Commissioner because it beggars belief that all you hold  is my correspondence with the Inquiry plus one email  sent by Roger Dewhurst relating to my case which was forwarded to the Inquiry by Josephine Norris.  However, before I write to the Commissioner   it would be helpful if you answered this question:  do you hold information about me which you have withheld because you do not believe it falls within the ambit of the DPA? If you are withholding information, which DPA exemption or exemptions are you relying on to deny me copies?

As for copies of   the correspondence between the Inquiry and me, I do require photostatted copies of all of these.

I would also be grateful  if you could send me a copy of  your letter of 3 April (including enclosures) in digital form as I do not have a scanner with OCR.

 

Yours sincerely,

 

Robert Henderson

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Ms Amanda Jeffrey

Leveson Inquiry

Royal Courts of Justice

Strand, London WC1

18 April 2012

 

Dear Ms Jeffrey,

I would appreciate a rapid  reply to my email of 11 April – copy below.

You are obligated to send me the copies of my emails and letters which you hold. As for the question of any  other data you are withholding,  I know from my previous dealings with the Information Commissioner that although a data holder may rely on the exemptions under the DPA,  if they do they need to identify which exemptions there are relying on. So, I will ask again: are you withholding data relating to me because you believe the data is exempted?

If I have not got a full response  from you within the next 7 days I shall refer the matter to the Information Commissioner.

Yours sincerely,

 

Robert Henderson

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FW: Leveson Inquiry – FTAO Amanda Jeffrey – urgent

Monday, 23 April, 2012 15:09

From: “Leveson Inquiry General Enquiries”View contact detailsTo: “anywhere156@yahoo.co.uk”Dear Mr Henderson

Thank you for your email of the 18 April 2012 addressed to Amanda Jeffery.

The Inquiry will forward to you the hard copy of correspondence by the end of the week.  The information and emails that will not be disclosed to you have been withheld under the legal professional privilege exemption.

Kind regards,

The Leveson Inquiry Team

www.levesoninquiry.org.uk

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FW: Leveson Inquiry – FTAO Amanda Jeffrey – urgentMonday, 30 April, 2012 16:18

From: “robert henderson”View contact detailsTo: “Leveson Inquiry General Enquiries”

Leveson Inquiry

Royal Courts of Justice

Strand, London WC1

30 April 2012

Dear Sirs,

The promised documents have not arrived. Please send them ASAP.

Regarding the infomation you are withholding,  saying data is being “withheld under the legal professional privilege exemption is rather vague. ” Which of the following  exemptions are you relying on?

DPA Part IV Exemptions

27. Preliminary.

28. National security.

29. Crime and taxation.

30. Health, education and social work.

31. Regulatory activity.

32. Journalism, literature and art.

33. Research, history and statistics.

33A. Manual data held by public authorities.

34. Information available to the public by or under enactment.

35. Disclosures required by law or made in connection with legal proceedings etc.

35A. Parliamentary privilege.

36. Domestic purposes.

37. Miscellaneous exemptions.

38. Powers to make further exemptions by order.

39. Transitional relief.

Yours sincerely,

Robert Henderson

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Ms Kim Brudenell,

Solicitor to the Inquiry

Leveson Inquiry

Royal Courts of Justice

Strand, London WC1

13 May  2012

 

Dear  Miss Brudenell,

I am still waiting for a reply to the email sent on 30 April which is below.  I would be grateful if you could let me know by return which exemption the Inquiry is attempting to bring into play.  As I have not been granted Copre Participant Status and have not been  called as a witness ,  and consequently  have no formal legal association with the Inquiry,  I fail to see how legal professional privilege  would apply.

You may find this blog post of interest:

https://livinginamadhouse.wordpress.com/2012/05/10/leveson-inquiry-lord-leveson-prepares-the-way-for-the-cancellation-of-part-2/

Yours sincerely,

 

Robert Henderson

 

 

 

Leveson Inquiry – the killer question Robert Jay QC is not asking

The leading counsel to the Leveson Inquiry  Robert  Jay  QC and his fellow barristers are being surprisingly inept in their questioning when it comes to the question of the police illicitly supplying information to the press.  It is noticeable that although some very damaging revelations have come out during the course of the Inquiry, to the best of my knowledge none of them  to date have resulted in fresh opportunities for criminal prosecutions because  all of the revelations at the Inquiry  which might have resulted in prosecutions are already known to the police.

What  are Jay and his colleagues doing wrong?    They are rushing their fences by asking,  without any preamble,  press witnesses the bald question “Have you ever paid the police for information?”   Unsurprisingly the answer they are receiving is no. This may be the truth but there is also a strong possibility that guilty witnesses calculate that it is the safest answer all things considered.

Someone being questioned under oath  who is tempted to lie  has to weigh up the following before deciding whether to lie:

1. Is the question being asked , however seeming innocent,  likely to lead to more damaging questions?

2. What is the likelihood of the lie being exposed as a lie?

3. Is the lie worth telling in the context of the damage telling the truth would do versus the likelihood of the lie being found out and the seriousness of the lie If it is  discovered?

When press  witnesses are being questioned about their dealings with the police there will be a very strong temptation  for any journalist,  from editor to humble reporter,  to lie because to admit the truth that they had paid the police or knew of others who had would have potentially severe consequences.  It would be a very high value admission. Moreover, the press witness would also probably think that such payments would be impossible to prove.  It is also  the question produced without preamble which is most likely to produce a denial out of panic, which can be counter-productive if it happens at too earlier point in the questioning because it cuts off lines of inquiry .

However, the possibility  that those under oath will simply panic  and lie without weighing up the consequences is not as strong  as it might seem,  because someone giving evidence will often have a good deal of time to consider what might be asked when they go into the witness box.  They may also receive expert help to prepare them because, despite the prohibition on rehearsing witnesses in evidence directly relating to a case they are appearing in (http://www.barstandardsboard.org.uk/code-guidance/guidance-on-witness-preparation/), human nature being what it is you can bet it happens.  Moreover, simply engaging in role playing with   mock witness questioning by a lawyer whilst avoiding the subject matter of a particular case (which is permitted) can go some way to preventing panic by giving a witness a taste of what they will face.

When  witnesses  from the press appear at the Leveson Inquiry  they will have a further advantage to prepare themselves for questioning. They will have  made a witness statement so the position they will have to defend   should be  clear in their minds. The decision whether to lie or not  in response to any likely  question will have probably been taken during the preparation of the witness statement.

What Jay and his colleagues be doing?  They should have started  from the point of first establishing whether  crimes have been committed regardless of whether any money or other material inducement has been  given to the police. The passing of information illicitly by the police to the press necessarily breaches the Official Secrets Act and most probably the Data Protection Act. In those instances both giver and receiver commit corresponding offences. Conspiracy charges could also arise.  In addition,  the police officer would be guilty of misconduct in a public office. These possible offences have been  ignored by Jay and his colleagues.

The first thing Jay and co should be doing is  establish  whether  the witness had had any direct  dealings with the police or, if it is clear from their witness statement that they had  such dealings, to ask  how often they had met police officers.   Nothing too frightening there for the witness because it is perfectly legitimate for the police to have dealings with the media.  No need to lie about that.

Then should come a question or two about where the meetings took place.  Nothing necessarily improper there, although if the meetings have involved expensive restaurants for which the press was paying the  witness might find it discomforting to answer.  Still, no need to lie yet and in any case that is the sort of information which will  probably be known to others. Too risky to lie at this point  for that reason as well.

Once regular contacts between the police and the witness  have been admitted,  counsel can begin to ask more demanding questions  about the nature of the meetings and what information was passed from the police to the pressman.  Things are getting a little bit trickier. The pressman could simply deny ever receiving information he should not have received, but there would be a reasonable chance that if he is lying the lie could be exposed.  Yet if  the pressman admits receiving information  he will be drawn into saying what it was, at least in general terms.  Things are getting tricky.  The pressman will probably decide to admit to receiving information but give it a gloss to try to make it seem legitimate. Should the pressman make a  straight denial  and this not be disprovable from information counsel holds,  further investigations should be made.  The third option would be to refuse to answer on the grounds that it would incriminate the witness, but that would point the way for the police to start and investigation of the witness.

If the press witness admits to receiving information relating to police activity  he will put himself into a bind because the only plausibly legitimate circumstances in which the police can release information about police activity or data held by them to the  media is to the media generally.  This does not need to be done publicly, although it is best if it is publicly released except in special circumstances which require temporary public silence such a kidnapping, but it should be given to the media generally.  To supply it only to one person or one media outlet would be prima facie grounds for suspecting that the release of information was illegal.

At this point the press witness has to make a decision whether to lie, refuse to answer on the grounds of self-incrimination or tell the truth.  The pressman who has received information illegally  will  probably have it in his mind that third parties  apart from the police officer will know of the receipt of the information, for example, an editor may  know that one of his journalists has crossed the line into criminality. It may be that, as happened with phone hacking at the News of the World, an illegal practice is widespread within a newspaper.  There is also the possibility that an examination of the  individual’s stories or, in the case of an editor,  the stories printed by his  newspaper could strongly suggest the type of information illegally passed to the pressman by the police, for example, stories which contain information which could only have come from police sources.  If the press witness has serious doubts about whether a lie will remain uncovered he will probably refuse to answer on the grounds of self-incrimination.

Assuming the press witness does not fall back on self-incrimination,  he may try to finesse the  information received so that it appears legitimate, for example, chatting about a case which is already well reported in the media. Alternatively, the press witness may claim that nothing was discussed relating to police activity.  In either case persistent questioning about what was discussed in  the meetings between the police and  the press witness  if the meetings were entirely innocent will probably result in the press witness being unable to give much detail of the claimed meetings.  That is a strong pointer to  a lie having been told because liars normally have not got a detailed story worked out.  Someone  recounting something which has actually happened will have the detail, or what they remember to be the detail, in their heads because they have experienced it rather than having to create a story from scratch.

We are now at the point where the question of paying or rewarding the police in other material ways comes into view.  It may well be that by this point the press witness will have admitted to receiving information which they should not have received but which they do not realise they should not have received.  If so,  counsel is into the home straight,   because even if no admission of  payment to officers is  made there is both sufficient grounds for  starting a criminal investigation and leads to investigate whether payments have been made.  Counsel could try rattling the witness by pointing out the potential criminal offences which can be  committed without making payments. That is the point when the question “Have you ever paid or given any other material benefit to a police officer for  the supply of information?”  should be asked.

If the press witness has gone through the questioning without making any inadvertent admission of receiving information illegally, the question  “Have you ever paid or given any other material benefit to a police officer for  the supply of information?”  should also be put to them at this point. It at least puts down a marker and there is always a sporting chance that the question will elicit a refusal to answer on the grounds of self-incrimination if the questioning has played on the witness’  fears.

Robert Henderson  4 3 2012

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Robert Jay QC

Lead Counsel to the Leveson Inquiry

Leveson Inquiry

Royal Courts of Justice

Strand

London WC1

29 2 2012

Dear Mr Jay,

When questioning press witnesses about payments to the police for information you and your fellow counsel are consistently asking the wrong initial question.

The  question you and your colleagues are putting is  along these very  bald lines:  “Did you pay policemen for information?”  What you should asking as your initial question is  something like this “Did you or your staff ever receive information from the police which only you or  your paper received?”  If they have that is almost certainly a breach of the law. You can then move to a line of questioning which further  illustrates the illicit nature of the receipt of the information to which the person has admitted receiving or knowing has been received. The question about payment should come later.

The reason you should proceed in this manner is simple. By limiting the question to payment you allow the  witness to escape questioning about other offences. Whether or not payment or other material reward is  given to the police for information , the passing of information illicitly by the police to the press necessarily breaches the Official Secrets Act and most probably the Data Protection Act. In those instances both giver and receiver commit corresponding offences. Conspiracy charges could also arise.  In addition,  the police officer would be guilty of misconduct in a public office.

I find it difficult to believe that a barrister of your experience will not realise all that. So why are you and your colleagues not pressing the matter of the receipt of information illicitly regardless of whether money or payment in kind has occurred?

Yours sincerely,

Robert Henderson

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Sent to  robert.jay@39essex.com, josephine.norris@39essex.com, wirwin@tgchambers.com, DavidBarr@tgchambers.com, clerks@tgchambers.com, clerks@landmarkchambers.co.uk, tfisher@landmarkchambers.co.uk, clerksd@4-5.co.uk, hemmerson@4-5.co.uk

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