The CPS incorporates RCPO

PRIVATE AND CONFIDENTIAL

Mr. Alexander Hanff

Also by email

8th April 2011

Our ref: AH/lcl

Dear Mr. Hanff

Re: Consent to Prosecute Alleged Offences under Section 1 of the Regulation of

Investigatory Powers Act 2000

I write further to earlier correspondence about this matter. I last wrote to you on 9th
December 2010 when I explained that the matter was under consideration at a senior
level. I am now in a position to inform you of the Crown Prosecution Service’s charging
decision. Before I do so it may assist you if I briefly explain once more the decision
making process noting that a colleague wrote to you back in October 2008, setting out
this position in greater detail.

Our decision follows earlier correspondence in which you sought consent for a private
prosecution for alleged offences contrary to Section 1 of RIPA 2000 which requires the
consent of the Director of Public Prosecutions. When the Director’s consent is sought,
such consent will only be granted if both stages of the Full Code Test, set out under the
Code for Crown Prosecutors, are satisfied. It is only if both stages of the Test are
satisfied that the Director will grant consent.

Where consent is necessary for a private prosecution and the Director gives his consent
to prosecute it is the CPS’s policy to take over the conduct of the prosecution (in
accordance with Section 6(2) of the Prosecution of Offences Act 1985) or in a case such
as this to commence the prosecution.

The evidence has been very carefully considered in this case. A number of reviews have
taken place and as a result, the City of London Police has conducted further enquiries
and has obtained relevant expert evidence. The evidence submitted by you together
with the additional material, including the expert evidence, and material submitted by
other bodies has been carefully considered.

We have considered this matter fully and in accordance with both stages of the Full Code
Test under the Code for Crown Prosecutors. We have decided that this is not an
Crown Prosecution Service, Complex Casework Centre, Special Casework Team,
2nd Floor, The Cooperage, 8 Gainsford Street, London SE1 2NE, DX: 80712 Bermondsey
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appropriate case for the Director of Public Prosecutions to grant his consent to a
prosecution.

I know this will come as a disappointment to you and I do not anticipate that you will
agree with our decision. It may however assist you if I explain how this decision has
been reached.

In September 2008 you wrote to the DPP seeking consent for a private prosecution of BT
and/or Phorm for an alleged breach of Section 1 of RIPA.

The matter had originally been investigated by the City of London Police who had taken
no further action.

The matter was passed to CPS London for a decision. Expert evidence was obtained.
Further enquiries were carried out by the police, Counsel’s advice sought and obtained,
and conferences held.

Further enquiries were carried out by the police at the request of the CPS and responses
have been received from BT, Phorm, OFCOM, OFT and the Information Commissioner’s
Office in response to further police enquiries.

The results of these enquiries have been carefully considered and there is still insufficient
evidence to commence a prosecution against BT or Phorm. The position is:

(i) There is insufficient evidence currently available to satisfy the evidential stage of
the Full Code Test.

(ii) The broad extent of the alleged criminality can be determined.

(iii) A fully formed assessment of public interest is possible at this stage.

It is apparent that very considerable further work of investigation would be necessary if

further consideration of the evidential stage were to take place. If the material obtained
was admissible in evidence and was sufficient to satisfy the evidential stage, the question
would ordinarily then arise whether or not a prosecution was required in the public
interest.

In the vast majority of cases prosecutors should only decide whether to prosecute after
the investigation has been completed and after all the available evidence has been
reviewed.

However the Code provides at paragraph 4.2 that there may be cases where it is clear
prior to collection and consideration of all the likely evidence the public interest does not
require a prosecution. In these rare instances Prosecutors may decide that the case
should not proceed further. I consider this to be such a case.

Even if the evidential stage was satisfied, it would also be necessary to satisfy the public
interest stage.
Even if the case proceeded and a conviction obtained, this would not be likely to result in
a significant sentence.

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(i) The suspects took a considerable amount of legal advice prior to commencing the
trial.

(ii) The trial was planned; there is insufficient evidence to suggest that there was pre-
meditation to commit an offence (Code 4.16). Legal advice was obtained both by
BT and Phorm.

The suspects were in possession of authority or trust (Code paragraph 4.16n). The
evidence does not suggest that they were seeking to specifically take advantage of that
position.

Code 4.16(r) – Some members of the community may consider a prosecution as important
to maintain community confidence. However there has been regulatory intervention and
the ICO concluded that there was “no evidence to suggest significant detriment to the
individuals involved”. BT and Phorm have cooperated with the police in the investigation.

Code paragraph 4.16(s) – there are no grounds for believing the offence is likely to be
continued or repeated.

As to the common public interest factors tending against prosecution:

Code 4.17(h) – is not a factor against prosecution. If the evidential test was passed it
could not be said that BT or Phorm played only a minor role. They are the principal
suspects.

Code e.17 (a) and (c) – Taking into account all the circumstances a court would be likely
to impose a nominal penalty and not a substantial one. There has been appropriate
regulatory intervention. The regulatory body did not take any proceedings.

Code 4.17(d) and (e) – Given the amount of legal advice sought by BT and Phorm, if an
offence was committed it could be reasonably argued to have been committed as the
basis of a genuine mistake or misunderstanding or a misjudgement.

Code 4.17(i) – both BT and Phorm received considerable legal advice. BT decided
because of doubts to adopt the most conservative legal advice received and in
accordance with that conducted a third and public trial in 2008. There is uncertainty
whether or not any loss or harm was caused. BT took a cautious approach which is
indicative of their desire to act in a proper and responsible manner in the face of legal
uncertainty.

ECHR considerations – whilst is provable there may have been a breach of Article 8 the
limited scope of such a possible breach does not in itself demand (if the Evidential Test
were passed) that a prosecution be brought. The ICO enquiry looking into the issue of
privacy concluded that there was no evidence to suggest significant detriment to
individuals involved nor did it take any legal proceedings.

Your views and also the views of others have been taken into account in my Review.
Your views, genuinely held and important as they are, are not alone a determining factor
into whether or not a prosecution should be brought, even if the evidential test were
satisfied. We have, though, fully considered them.

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Legal Certainty (and legal uncertainty) – this in itself would not be a defence to charges
but the Act is extremely complex and is open to a variety of interpretations. The fact that
legal advice was sought and that there were divergent views would be a powerful
mitigating factor in the event of a prosecution going directly to the question of the
likelihood that a significant penalty would be imposed.

Conclusions

On the material currently available there is insufficient evidence to give rise to a realistic
prospect of a conviction.

We cannot therefore recommend the Director give his consent to a private prosecution.

In applying the Code for Crown Prosecutors there is sufficient material available to make a
fully informed assessment of the public interest at this time.

The public interest factors tending against prosecution outweigh those tending in favour,
and even if the considerable evidential hurdles could be overcome and addressed by
further investigation, it is clear that at this stage that a prosecution is not required in the
public interest.

Therefore in accordance with the Code for Crown Prosecutors the Director does not give
his consent to a private prosecution in this case.

Yours sincerely,

Andrew Hadik
Special Casework Lawyer