Operation Motorman was an investigation begun in 2002 that included raids on the offices of private investigators including those of Steve Whittamore, who kept records detailing customers of 'blagging' services and their requirements. When the ICO looked at the files of Whittamore, an investigator who operated a network of contacts skilled in accessing private information, they found that almost every newspaper group had used his services. No journalist was ever prosecuted on the evidence uncovered during Operation Motorman.
In 2003 legal advisors to the ICO told the watchdog that information uncovered during Operation Motorman showed journalists had committed offences under the Data Protection Act but that "informal cautioning" of journalists and editors was the way the watchdog should tackle the problem. The ICO's legal advice was disclosed during the Leveson inquiry into press standards on Monday.
"Having regard to the sustained and serious nature of the journalistic involvement in the overall picture, there can be little doubt that many, perhaps all, of the journalists involved have committed offences," the ICO's legal advisers told it.
"The inference, overwhelming, it seems to me, is that several editors must have been well aware of what their staff were up to and therefore party to it. I understand that policy considerations [it should say] have led to their view [it should be 'the view'] that enforcement of some sort rather than prosecution is the way forward in respect of the journalists/newspapers," the disclosed advice, including Leveson amendments, said.
"I understand and sympathise with that approach. This is, I believe, the first occasion upon which the scale of the problem has come to light and it may not be unreasonable to give the Press Complaints Commission the chance to put their house in order," it said. "However, the evidence of involvement [it should read 'is significant'] and often unpleasant offending is, in my opinion, clear enough in very many cases. You would be appropriate to caution identified journalists and their editors. I doubt whether a formal caution would be accepted as such but informal cautioning by letter with a suitable selection of (heavily edited) evidence attached should achieve the aim."
"Those defending in the prosecution might seek to make capital from the fact that the journalists are not being prosecuted. The judge might also comment on the basis that the journalists are the ones (it seems) who created the demand for this offending," the ICO was advised. "With this in mind, it is a sensible precaution to equip me at some point before trial with the detail of the reasoning not to prosecute. I may need to explain or even defend the decision to the judge."
Under the Data Protection Act a person is generally guilty of an offence if they "knowingly or recklessly ... obtain or disclose personal data or the information contained in personal data, or procure the disclosure to another person of the information contained in personal data" without consent from the 'data controller'.
A person is not guilty of an offence if they can show that unlawfully obtaining, disclosing or procuring of the personal data was justified as being in the public interest. The Data Protection Act provides an exemption from certain of its provisions where personal data is being processed for journalistic purposes, recognising the special importance of the public interest in freedom of information.
Former ICO deputy commissioner Francis Aldhouse told the Leveson inquiry that he had not been personally involved in decisions about whether to prosecute journalists for offences uncovered during Operation Motorman. Aldhouse rejected claims made by former ICO senior investigator Alex Owens that he had personally told Owens that newspapers were "too big" to take on. Owens made the claims as part of his evidence to Leveson last week.
In his evidence Owens had said that the ICO had "grossly understated" the number of requests for personal information made to Whittamore by journalists when it had reported the evidence it had uncovered. Owens said that no one from the ICO's investigations unit "ever spoke to a journalist" about findings made during Operation Motorman. The ICO typically had its "heads buried in the sand," Owens said. "Their policy was basically: if you ignore a problem long enough, it will go away".
However Aldhouse said that pursuing prosecutions against reporters could have had a "chilling effect" on press freedom.
"The Commissioner has strong powers which should be used in relation to the media with particular discretion," Aldhouse said in a witness statement submitted to the inquiry.
"The Office although originally established to protect the rights of individuals to the proper processing of their personal data ... was and has to be also aware of the importance of the right to freedom of expression and consequently of the freedom of the press. The pursuit of journalists could have a chilling effect on those rights," he said.
"The criminal offences now found in section 55 of the Data Protection Act 1998 give the Commissioner the opportunity to seek criminal sanction for the knowing or reckless obtaining or disclosing of personal data. There are practical challenges in the investigation of the involvement of individual journalists in such cases in demonstrating first the degree of knowledge on the part of the individual journalist, secondly in addressing the public interest defence available to the media and thirdly, in the absence of a power of arrest, securing any co-operation from a journalist who would undoubtedly say that he does not reveal anything about his sources," Aldhouse said.
"However, none of those considerations of principle and practicality should stand in the way of proper enforcement of the criminal law against the media particularly in relation to section 55 of the 1998 Act, the predecessor of which was enacted largely as a reaction to the intrusive behaviour of the press and the market in personal information," Aldhouse said.
"I am unable to comment on the detailed history of the Operation Motorman inquiry in the direction of which I was not involved," he said. "I believe that the investigators conducted the matter together with the Commissioner's lawyers. Mr Owens states that he and Roy Pollitt were informed that they were not to make contact with newspapers or journalists identified in the investigation and that this was the decision of the Commissioner. I am not aware of such a decision; I took no part in the decisions on this prosecution. I regret that because of my limited role in the Operation I am unable to help the inquiry further."
Aldhouse told the Leveson inquiry that, because of a court ruling on privacy and free speech and how privacy was viewed in 2002 and 2003, the ICO would have been discouraged from prosecuting journalists.
The ruling had established that "there was a public interest in having economically viable newspapers, and for that they had to sell – they had to print things that the public were interested in, even if it was tittle-tattle," Aldhouse said.
"[This] did rather discourage people like ourselves, senior staff in the Commissioner's office, from thinking ... there's a possibility of prosecutions in this sort of case because we thought: well, the journalists have got a fairly easy route to establishing a public interest defence. The world has moved on, of course, and maybe the courts won't see it that way," he said.
Alex Owens also gave further evidence to the inquiry on Monday, in which he was asked to explain elements of the personal copy of evidence he said he had kept following Operation Motorman.
