Members of Parliament and the Serious Organised Crime Agency (SOCA) are at present embroiled in a row over the potential publication of a list containing the names of 102 firms and individuals who used rogue private investigators to obtain information illegally. The list is thought to be made up of prominent law firms, insurance companies, accountants, and celebrities.
SOCA has been accused of withholding information regarding companies’ use of rogue private detectives from as far back as 2006. In 2012 four private detectives were convicted of fraud as a consequence of Operation Millipede however the companies that employed them were never named and faced no sanctions.
So how has the current ‘Blue Chip Hacking’ row developed?
22nd June 2013: it emerged that SOCA had, for many years, suppressed information that leading companies had hired rogue private detectives to “hack, blag and steal sensitive information” from members of the public.
2nd July: the Director-General of SOCA, Trevor Pearce, refused to hand over to the Home Affairs Select Committee the names of the companies who employed the private investigators convicted of fraud.
18th July: former SOCA Chairman Sir Ian Andrews, tells MPs that to reveal the names of the companies would damage their financial interests and be against their human rights.
22nd July: it emerged that Sir Ian Andrews failed to inform the Select Committee that his wife worked for a private investigations firm.
24th July: SOCA passed the list to the Home Affairs Select Committee on the condition that it remains confidential, as to publish the list would undermine the “financial viability of major organisations by tainting them with public association with criminality.”
1st August: Sir Ian Andrews resigns, and Deputy Prime Minister Nick Clegg supports publication of the list.
31st August: information on the historic cases involving 98 ‘Blue Chip’ companies is handed to the Information Commissioner (ICO) to be investigated.
3rd September: MPs inform SOCA that if the list is not published by them, then they will publish the list using Parliamentary Privilege on the 9th September. SOCA refused.
7th September: the Prime Minister David Cameron came out in support of publication stating: “We have in our country an open system of justice. That’s the way it should be. And that applies, as far as I’m concerned, unless there are specific exemptions. The open system of justice should be just that.”
On the 9th September the Home Affairs Select Committee delayed publication of the list until it had heard evidence from the Information Commissioner. Subsequent to the ultimatum nine names have been removed from the list to protect on-going investigations by the police.
There appears to be three arguments involved in the debate. In favour of publication is that of transparency. On the opposing side are two arguments: that it would financially damage the companies concerned; and that it would prejudice further investigations.
Transparency is a crucial element of a modern justice system, and arguably made more important in recent years following the scandal over MPs’ expenses and more recently the Leveson Inquiry into media ethics. The latter having some notable correlation with the current scandal, may provide an indication as to why MPs are so adamant that the list be made public.
Therefore in the name of transparency the list should be published, unless there is a sufficient reason that would mean publication would not be in the public interest. But are the arguments made by SOCA strong enough to make that suggestion?
The argument that publication would damage the financial interests of the companies involved is one which can be quite easily dismissed. In no other circumstance is it appropriate to avoid criminal censure because it may cause financial loss, nor should it be the case here.
The only conceivable defence available to the companies involves is that they were unaware that the private investigators they had hired were using illegal means to obtain their information. However one suspects, given the likely nature of the information gathered, there would have been little doubt that this would have been able to be obtained legally. The very notion that these companies should not be tainted with the “association with criminality” is absurd because they are more than associated; they are arguably the indirect instigators of criminality in this case.
The more convincing argument is that publishing the list would jeopardise on-going investigations. If these investigations are on-going then the greater public interest lies in the execution of due process and the operation of the justice system to work effectively and prosecute those deemed to have committed an offence. Transparency which inhibits this aim is not in the public interest.
However if confidentiality is maintained on these grounds by making assertions of on-going inquiries, which are untrue, then we are a step removed from an open and transparent justice system, which is of benefit only to those who have committed potentially criminal acts, or are at least associated with them.
A Sky News report stated that “Scotland Yard said it has intelligence to suggest 118 companies or individuals were clients of private investigators suspected of breaking the law. Of these, 59 have been investigated and 21 prosecuted. Another 25 are under current investigation, and there is insufficient evidence to justify action against 13.”
A criminal prosecution for unlawfully obtaining or accessing personal data is a possibility for those involved; however more likely is a civil action for breaching the Data Protection Act which is punishable with a fine up to £500,000.
James Arbuthnot, Chairman of the Defence Select Committee has also come out in favour
of keeping the list confidential; for fear that it may make it more difficult for Parliament to obtain information in confidence in the future. The question remains whether Parliament should keep information from the public against their interest, solely on the grounds that the information was handed over on the condition of confidentiality. Parliament arguably made a mistake in guaranteeing confidentiality but this is an insufficient reason not to publish the list.
Parliament is clearly unimpressed with both arguments put forward by SOCA, the second of which is made much harder to believe by the recent removal of nine names from the list to protect on-going criminal investigations at the request of the Metropolitan Police. It would therefore appear to be that on-going investigations have been protected, and surely one cannot suggest that the remaining names remain confidential in case an investigation is brought in future. The only situation in which confidentiality should be maintained on that ground is if there is sufficient evidence to suggest that an investigation is likely to commence.
The battle appears to have been won by Parliament with the publication of the list due imminently. Aside from a couple of exceptions noted above, it is surely in the public interest to publish the names of the companies and individuals involved, if only to bring about public censure of their actions and provide an active deterrent against similar conduct in future. In an age in which personal information is increasing in value and availability (for those who know how and are willing to break the law to obtain it) a strong message needs to be sent, that such actions will not be tolerated, and regardless of the commercial value of the business they will not be protected from public scrutiny.