Focus: Media law: Privacy on parade

In 2002, in an attempt to escape intense media ­scrutiny, the former ­Metropolitan Police deputy assistant commissioner Brian Paddick flew to ­Sydney for a three-week holiday.

While there he bought himself a watch. The expense of the purchase alerted his credit card company, which put a bar on his card. Paddick called the company, explained what he had bought and how much it was, and the bar was lifted. The only other person he told was his partner. As far as he was concerned that was the end of the matter.

Not long after his return to the UK The Sun published a story about ­Paddick’s purchase. Now that ­transaction, which seemed like a ­simple treat back in 2002, is at the heart of a judicial review claim against the Metropolitan Police.

Paddick, along with MP Chris Bryant and freelance journalist Brendan Montague, have instructed Bindmans partner Tamsin Allen to pursue the claim. In this, the ­Administrative Court will examine ­decision-making at the ­Metropolitan Police in relation to the current phone-hacking allegations.

“It’s very important that a public body is open to public scrutiny,” Allen says. “It seems now that this is an unfolding story, which appears to be revealing widespread unlawful behaviour.”

The phone-hacking allegations first came to light in 2006 when the News of the World (NoW) published word-for-word a private voicemail message left by Prince William for Prince Harry. The incident was reported to the police and, on 8 August that year, the NoW offices and the home of private investigator Glenn Mulcaire were raided. Back then the paper’s editor was Andy Coulson, himself currently at the ­centre of a media storm relating to phone-­hacking allegations.

In 2006 police seized files ­containing 4,332 names, 2,978 mobile phone numbers and 91 PIN numbers used to access mobiles when they raided Mulcaire’s home.

The tabloid’s royal correspondent Clive Goodman was found to have paid Mulcaire for information ­gathered from the phone-hacking. The day after the raid the pair were charged. In January 2007 they both pleaded guilty to illegally intercepting phone messages and were jailed for their conduct.

Sentencing the pair Mr Justice Gross described their actions as “low conduct, reprehensible in the extreme”.

Given the fact that the police found 91 PIN numbers, rumours persisted that the phone-hacking tactics were used much more widely than the police had uncovered.

Police, MPs, celebrities and sports stars were all targets, it was alleged, and in July 2009 the director of ­public prosecutions Keir Starmer QC issued a statement promising that that police would inform any ­potential victims of the situation.

Protective custody

And that is the way it would have stayed if the police had informed the victims, but something went awry. Allen’s clients want to know what.

“We’re interested in the News of the World and News International,” says Allen. “They appear to have been, either knowingly or unknowingly, protected.”

The claim issued against the ­Metropolitan Police alleges that since 2006 it has been in possession of information about potential phone-hacking victims.

However, it is claimed that the police breached Article 8 of the Human Rights Act by failing to ­notify potential victims. Article 8 provides that “everyone has the right to respect for his private and family life, his home and correspondence”, and ­public authorities have a legal ­obligation to uphold that right.

According to the claimants, ­however, this obligation was ­unfulfilled.

“The defendant has consistently refused to provide information about the total number of people [who] were or might have been targeted by Goodman, Mulcaire or others,” the claim states. “It can be inferred that the defendant does not wish to reveal this number because it would ­demonstrate that only a small ­proportion of those whose names or numbers had been found in Mr ­Mulcaire’s possession had been warned.”

Allen says this has caused a ­problem with deciphering who the claimants are. In addition, it is alleged that the police failed to respond adequately to the claimants’ requests for information about their cases and that they failed to carry out an adequate investigation into the activities of the accused.

“It’s a fascinating case and it sits squarely within Bindmans’ remit,” Allen says. “There’s no direct ­comparator in the UK.”

Bindmans has a history of taking up novel public law causes. In 2009, for instance, partner John Halford ­represented the father of a 12-year-old boy, known as M, in his attempt to have his son admitted to the Brent-based faith school JFS.

The case went to the Supreme Court and Halford, who instructed Blackstone Chambers’ Dinah Rose QC, successfully challenged the school’s policy, with the court holding that the school had directly ­discriminated on racial grounds against M and ­others like him.

A different approach

Allen’s practice is a mix of media, human rights and public ­sector law. She says both Paddick and Bryant are long-term clients who had raised their concerns after the phone-hacking allegations emerged.

The decision to attempt to bring a judicial review claim, she says, is an effort to make the details of the police investigation public.

Allen has instructed Matrix ­Chambers’ Hugh Tomlinson QC and Alison Macdonald to help prepare the case.

“We decided we’d take a different approach,” Allen says. “We thought this would be an interesting way to do it, and the clients wanted to know what happened.”

Last Friday (17 September) the ­former deputy prime minister John Prescott announced his intention to join the action. This came after the Met had failed to provide him with details it had uncovered about alleged tapping of his phone.

Prescott has instructed Collyer Bristow partner Dominic Crossley to represent him. Crossley says all four claimants have a mutual aim.

“The judicial review offers [Allen’s] three clients and my one a possible remedy that is ­different from that of private law claims against the News of the World,” states Crossley. “It’s designed to challenge the conduct of the Metropolitan Police. It’s much more public-­spirited. They [the claimants] want to find out why this wholesale invasion of ­privacy wasn’t revealed.”

A statement released by the former deputy prime minister stated: “It has always been my intention to discover the truth behind this case and whether the Metropolitan Police ­fulfilled its duty to follow all the lines of evidence.

“It is my belief they didn’t and I hope the judicial review will finally reveal why justice not only wasn’t done, but wasn’t seen to be done.”

Time for actions

Actress Sienna Miller, who is ­represented by Mark Thomson of media boutique Atkins Thomson, is also believed to be joining the action.

Meanwhile, lawyers have clients queuing up to launch claims against the NoW, according to several sources.

Lawyer Charlotte Harris of ­Manchester-based JMW Solicitors is acting for more than 20 MPs, ­journalists and celebrities who believe their phones have been hacked.

PR guru Max Clifford instructed Harris to represent him in his breach of privacy action against the paper. That case settled behind closed doors in March, with Clifford reportedly receiving a package worth £1m, including legal fees.

The tabloid also settled a privacy claim brought against it by ­Professional Footballers’ ­Association chief executive Gordon Taylor, who was represented by Taylor ­Hampton consultant Mark Lewis, for a ­reported £700,000. Lewis is also representing Who Wants To Be A Millionaire? host Chris Tarrant in his action against the paper.

Schillings partner John Kelly, who says he is watching the judicial review closely, has been instructed by ­football pundit Andy Gray and ­comedian Steve Coogan, and he has more clients in the pipeline.

Yet it is widely anticipated that many of the privacy cases will settle with confidentiality clauses in place.

“The public will only find out about half of the privacy cases because clients want to settle them,” one media partner comments. “They’re in a very difficult position. The ­concern is that, if celebrities or films stars run these cases, there’ll be an opportunity for the newspaper group to seek revenge some time in the future.

“The judicial review is very helpful for those with more political desires to find out what happened.”

Private strife

News International group legal head Tom Crone has instructed Farrer & Co partner Julian Pyke to defend the privacy cases. The newspaper has consistently and publicly denied the allegations, both before the court and throughout parliamentary select committee grillings.

The issue will be the subject of ­further political scrutiny after the House of Commons’ standards and privileges committee decided it needed to consult lawyers on whether the phone-hacking of MPs could be considered contempt of ­Parliament.

For the moment the allegations are confined to the NoW, but lawyers say the scandal spreads much further along Fleet Street and that more cases are anticipated. In the ­meantime the Administrative Court will examine the judicial review application and decide whether it should be allowed.

In a world where information spreads freely, privacy is a precious commodity, and the law plays a key role in protecting it. The judicial review application, if successful, will lay bare the inner workings of the tabloid press and reveal precisely what tactics are being used to remove the right to privacy.