Latest revelations on the News of the World’s phone-hacking scandal puts the police under the spotlight, says Brian Cathcart. The Met should be taken off the case and the investigation reopened

We like to think that a good detective leaves no stone unturned in the pursuit of truth. In the Met’s phone-hacking investigation of 2006 it now seems that, on the contrary, almost every stone was left unturned, no matter how suspicious it looked. Miller has now turned one over all on her own, and what it reveals looks very bad for Scotland Yard.

Her claim document states that when the Met arrested the NoW hacker Glen Mulcaire in 2006, among the documents they seized were the following:

— the number, account number, pin number and password for not just one but three successive mobile telephones she used

— the times and dates of a number of mobile phone calls she made

— the contents of two voicemail messages left on her mobile phone

— the mobile phone number, pin number and password of her friend Archie Keswick

— the confidential mobile phone numbers of Jude Law and of his personal assistant

— the confidential mobile phone numbers of Miller’s publicist and the address and home telephone number of Miller’s mother

Just a reminder: voicemail hacking is illegal and all these materials were in the hands of a man employed full time by a national newspaper.

This impressive file should surely have been enough, you might think, to arouse the suspicions of even the least inquisitive of detectives. But no. No detective saw fit to phone or visit Miller either to alert her that she might have been a victim of a campaign of illegal intrusion or to inquire whether she had anything to say.

On the evidence of the claim document, if detectives had contacted her they would immediately have been presented with another impressive bundle of evidence. She could have told them about new messages that mysteriously appeared in her voicemail queue as messages already accessed, about messages that disappeared altogether, about her concerns in 2005-06 that her phone was being hacked, and about stories that appeared in the News of the World which she could not account for.

If detectives had then examined some back numbers of the News of the World, they would have found at least 11 articles relating to Miller whose origins they might have investigated in a phone-hacking inquiry.

But there was no investigation of Miller’s case at all. The Met contented themselves with a prosecution which implicated only one reporter at the News of the World — Clive Goodman — and left the rest of the organisation untouched. The offices of the paper for which Mulcaire did his hacking were never raided. No journalist other than Goodman was even questioned.

Worse, the Met sat on the Miller information. The claim document hints at the effect of hacking on Miller — her personal distress, her suspicions of close friends, her repeated changes of phone, her sense of being exposed. But the Met did not tell her what it knew.

She has had to go to court to secure documents giving her that information, and the Met released it with the greatest possible reluctance — just as it is currently employing every legal means to prevent many others from finding out whether they were hacked.

When the Commons select committee on the media looked at all this last year (and, to declare an interest, I was an adviser) it criticised in blunt terms the Met’s failure to even question three News of the World journalists — Neville Thurlbeck, Greg Miskiw and Ross Hindley aka Hall — in connection with a very simple paper trail of phone hacking evidence.

At that time, the Met’s position in this scandal appeared to be a secondary one, though very serious — it had conducted a bad investigation and failed to get to the bottom of the affair. The picture is now much darker than that.

Much fuller disclosure of the Mulcaire documents is now required, so that everyone who was targeted knows about it. And the Met needs to answer a lot of questions about why it failed to investigate the News of the World in a proper and timely fashion. At the very least, the force should be removed from all contact with the case and with the evidence, and a reinvestigation should be undertaken by outsiders.

Finally, it is worth noting that Miller’s claim document contains the strong suggestion that at least three more people associated with her have a case to sue the News of the World. About 20 people are already suing or are about to sue. For the newspaper too, it’s definitely not over.

Read more Brian Cathcart on Metgate here, here and here

Brian Cathcart teaches journalism at Kingston University London. Follow him on twitter at @BrianCathcart

The right to privacy, Article 8 of the European Convention on Human Rights, was initially designed to prevent state interference in our private lives. So how has it become a tool for celebrities to limit press freedom?

The answer lies in the state’s ‘positive obligation’ to protect human rights. Strasbourg has long held that Article 8 can impose a duty on courts to protect privacy. Now it says this means protection against unjustifiable media intrusion into people’s lives.

In 2004, it ruled that the German Courts should have protected Caroline Von Hannover against publication of photos of her in public. It sympathised with her complaints of harassment by the paparazzi and the lack of public interest in the shots. Whether she was ‘in’ or ‘out of’ the public eye when photographed was secondary. Private life included a zone of interaction with others, even in public. Recent Strasbourg cases have emphasised that this zone is even larger for an ordinary person and that Article 8 gives a right to one’s own image and its publication. The latter has to be justified.

Our media fretted that our courts would interpret the ‘positive obligation’ in a similar way under the Human Rights Act 1998. This was because judges had to decide cases ‘compatibly’ with Strasbourg principles.

Section 12 of the Act requires them to have ‘particular regard to…freedom of expression’ for journalists in this sort of situation. But it has not curbed the predicted judicial enthusiasm for ‘Von Hannover’s law’ in England.

In fact our judges did not even wait for the landmark Strasbourg ruling.

In 2001, the Mirror pictured Naomi Campbell in the street leaving Narcotics Anonymous to illustrate its attack on her for denying drug use. A month before Von Hannover, the House of Lords ruled the picture an unlawful invasion of Campbell’s privacy. It was akin to revealing details of medical treatment. So even though she was in the street, the backdrop meant that she was still in her ‘private zone’. The same law would not, said Baroness Hale, have prevented publication of a celebrity ‘popping out’ for a pint of milk.

In Campbell, the Law Lords adapted our long-standing law of ‘breach of confidence’. They said that it was no longer necessary to show a relationship of confidence in order to have a ‘privacy’ claim (always an unlikely prospect between a celebrity and a tabloid). Instead a remedy was possible if there was a ‘reasonable expectation of privacy’ in the material published. If so, cases had to be decided by balancing the conflicting rights to privacy and freedom of expression under Article 10.

But this is an uncertain task. Judges have to ‘value’ the two rights at stake so that the more valuable wins in the end. Here are some recent, notable examples of how this has worked.

In 2007, the son of an African president claimed against Global Witness. The NGO had published details of his credit cards showing public money being used to fund his lifestyle. The claim failed because of the public interest in exposing the impropriety of the officials involved.

Similarly, Associated Newspapers were allowed to publish the account given by Lord Browne’s gay lover’s account of how BP resources were used to establish a business for him. Either Browne had no reasonable expectation that this could be kept secret or the public interest in the story won.

Earlier this year, however, the Court of Appeal found a case to answer when JK Rowling’s 18-month-old son was photographed in the street by an agency. The child, though not the mother, was in his privacy zone and the pictures of him were of questionable public interest.

And then, in July, the High Court found no public interest in the News of the World’s surreptitious visit to Max Mosley’s downstairs party. He got £60,000 in damages, though the ‘irresponsible’ journalism did not attract a penal award.

Section 12 of the Human Rights Act at least specifies that prior publication of the private information can deny the claimant a remedy. So Mosley failed when, earlier, he applied for an injunction to remove a film clip of the S&M session from the paper’s website. In the first 24 hours, there had been over a million viewers. Reluctantly the court held that there was no longer any reasonable expectation of privacy.

These developments have encouraged celebrity lawyers to be more creative.

Max Mosley is applying to Strasbourg for a ruling that the positive obligation necessitates a law forcing our media to notify its victims in advance. This would enable them to apply for a pre-publication privacy injunction. Strasbourg has always styled these as censorship that should only rarely be countenanced. So Mosley’s lawyers may be on a bridge too far. But in the current climate, who knows?

And after a series of ‘one-off’ triumphs against prying photo agencies and publishers, Sienna Miller’s lawyers are now using the Protection Against Harassment Act to sue Big Pictures. They allege a ‘course of conduct’ which the agency ought to have known was harassment of her by its photographers.

The more chances a claimant’s lawyers give the judges, the more likely it is that some really bad law will be made at some stage. Perhaps even worse than Campbell v MGN.

As in Editions Plon v France, where Strasbourg upheld an injunction preventing publication of a book telling the French how the late President Mitterand had misled them about his ill-health. Or Hachette v France, where a court forced a newspaper to tell its readers that a photo of the Prefect of Corsica, murdered in the street, was being published without the consent of his family who considered it an intrusion into their private lives.

The worrying thing is that when it comes to privacy, we still have not caught up with the rest of Europe.

Gavin Millar QC is a leading barrister in media law