The Route to Verdict: Justice Saunders’ Directions to the Hacking Trial Jury

In a slight departure from custom, Justice Saunders began to summarise the legal issues facing the jury at Court 12 at the Old Bailey today. This is not his entire summing up, which will follow the closing arguments of the defence and the prosecution. It also excludes any directions on Count 2 and 3 which involve Clive Goodman, because he is still unfit to stand trial (he was hospitalised today because of his continuing pneumonia).

However, the following highlights from the judge’s directions are a useful guide to what questions the jury have to decide

Conspiracy in General

Now that count 7 against Rebekah Brooks, Charlie Brooks and Mark Hanna has been changed to a substantive charge of perverting the course of public justice (there is an arcane technical reason for this to do with the “one mind” still attributed to husband and wife) the remaining six are all conspiracy charges. Justice Saunders summarised like this.

Mere knowledge that others intend to commit an offence is not enough to prove a conspiracy. An agreement to commit an offence must be proved. It is not necessary that each conspirator should enter into the agreement with all the other conspirators nor is it necessary that each conspirator should know all of the other conspirators. What has to be proved is that the Defendant whose case you are considering agreed with at least one other person to commit a criminal offence intending that it should be carried out. A conspirator can join a criminal conspiracy after it has started and can leave it while it is still continuing.

Count 1

Rebekah Brooks, Andy Coulson and Stuart Kuttner are charged with conspiracy to unlawfully intercept communications in the course of transmission by means of a public telecommunications system

• Each defendant must be considered separately
• Just because one defendant is guilty or not guilty doesn’t mean the others are
• Voicemails can only lawfully be accessed with consent or a court order
• None of the victims in the hacking trial gave consent – though police did have a court order for Milly Dowler’s phone
• Ignorance of the law is no defence

Rebekah Brooks, Andy Coulson and Stuart Kuttner all told you that they did not realise it was a criminal offence to access people’s voicemails. That is not a defence. Ignorance of the law, however understandable and however widespread, is not a defence. No Defendant has or could seek to rely on ignorance of the law as a defence

• There is no public interest defence, unless decided by the CPS when considering charges

Mrs. Brooks was of the view that phone hacking could only have been justified if there was an overwhelming public interest. She said that no such overwhelming public interest justification existed in relation to any of the hacking activity with which this case is concerned. Mr. Coulson decided that it was in the public interest to publish details of David Blunkett’s affair once it had been discovered; he did not claim that Neville Thurlbeck was justified in accessing Kimberley Quinn’s voicemail on the basis of a tip. Stuart Kuttner did not believe that it could ever be justified.

• Various guilty please cover varying times of the conspiracy. Mulcaire throughout its duration. Goodman and Dan Evans from 2005

In Summary

 In order to reach your verdict you have to ask yourselves this question in relation to each of the three Defendants, Rebekah Brooks; Andrew Coulson; and Stuart Kuttner:
Are you sure* that the Defendant whose case you are considering agreed with at least one other person at some time during the period covered by the count to pursue a course of conduct which, if carried out in accordance with their intentions, would involve unlawfully accessing another person’s mobile phone’s voicemail.
If you are sure your verdict is ‘guilty’; if you are not sure then your verdict is ‘not guilty’.

*Notice the language has been updated according to ‘sure’ rather than ‘beyond reasonable doubt’. 

Count 5

Brooks also faces a charge of misconduct in a public office with an MOD official:

To prove the offence of misconduct in a public office against Bettina Jordan Barber, the prosecution would have to prove that she, a public officer acting as such, wilfully misconducted herself without reasonable excuse or justification in such a way as to amount to an abuse of the public’s trust in the office holder. Bettina Jordan Barber was a medium ranking official in the Ministry of Defence. She was in law a public official. She had a duty not to disclose information that she held in confidence by virtue of her position as a public official. If Bettina Jordan Barber did disclose information that she held in confidence by virtue of her duty as a public official then that would amount to misconduct

So there’s an extra hurdle here. Not only do the jury have to believe Brooks entered into an agreement with a Sun journalist to pay a public official, they have to believe that both Brooks and her journalist knew this, and the official herself was acting in a way to abuse public trust.

Under questioning by her barrister, Jonathan Laidlaw QC, Brooks also underwent a “hypothetical, retrospective” exercise over the Sun stories produced through Jordan Barber, arguing that some of them (had she known the source) would still have been justified in the public interest. But Saunders made it clear that (beyond the CPS threshold) this decision was not Brooks’ to make

The fact that an editor takes the view that disclosure of a story is in the public interest is not a defence to this charge… The public interest is a consideration only when you are deciding whether the public official had a reasonable excuse for disclosing the confidential material and whether the conduct of the public official was so serious as to amount to abuse of the public’s trust in her.

In Summary

There are four different stages to this verdict

1. Are you sure that Rebekah Brooks agreed with SUN JOURNALIST to purchase information from a person who she knew held a public office? (An employee of the Ministry of Defence or a person serving in the armed forces holds a public office.)
If you are sure go on to question 2; if you are not sure your verdict is ‘not guilty’.
2. Are you sure that the information that Rebekah Brooks agreed SUN JOURNALIST could purchase included information that the public official held in confidence by virtue of her employment?
If you are sure go on to question 3; if you are not sure your verdict is ‘not guilty’.
3. Are you sure that the public official had no reasonable excuse for selling the information to a newspaper?
If you are sure go on to question 4; if you are not sure your verdict is ‘not guilty’.
4. Are you sure that the misconduct of the holder of the public office in agreeing to sell information was sufficiently serious to amount to an abuse of the public’s trust in the office holder? In deciding this you judge the misconduct on what was known to Rebekah Brooks.
If you are sure your verdict is ‘guilty’; if you are not sure your verdict is ‘not guilty’.

Count 6

The charges against Brooks and her former PA Cheryl Carter about disposing of 7 archive boxes on the day Andy Coulson was arrested and the News of the World closed is the only conspiracy charge with only two people on it. And for this reason:

As the essence of an offence of conspiracy is an agreement; where only two people are alleged to be criminally involved, you could not find one of them guilty and the other not guilty. Either they must both be guilty or neither of them.

Saunders summed up the prosecution case as alleging Brooks and Carter concealed her notebooks during a police investigation because they could ‘assist the police’. These notebooks didn’t have to contain anything incriminating on Brooks, only material “relevant” to police inquiries.

It would be sufficient if they contained material which would be relevant to the inquiry into criminal conduct of one or more persons at the News of the World or the Sun.

But the prosecution would have to prove

• The removing the boxes was done with intent to pervert the course of justice
• There was agreement between Carter and Brooks

In Summary

There are three different stages to this verdict

1. Are you sure that the Defendants agreed with each other that the seven boxes should be removed from the archive?
If you are sure go on to question 2; if you are not sure your verdict is ‘not guilty’.
2. Are you sure that the removal of the boxes and what happened to the contents afterwards had a tendency to pervert the course of justice?
If you are sure go on to question 3; if you are not sure your verdict for both Defendants is ‘not guilty’.
3. Are you sure that both Defendants intended that the removal of the boxes and the disposal of at least some of the contents should pervert the course of justice?
If you are sure your verdict on both Defendants is ‘guilty’; if you are not sure your verdict on both Defendants is ‘not guilty’.
NB it is not possible on this count to find one of the Defendants guilty. They are either both guilty or both not guilty.

 

Count 7

This has now been changed from a conspiracy charge to a substantive: that Rebekah Brooks, Charles Brooks and Mark Hanna together with others named on the count perverted the course of public justice over the weekend in July 2011 when Brooks was arrested. Saunder summarised

• The Prosecution material relevant to the police enquires called Operations Weeting and Elveden was removed from Jubilee Barn either on 15th ,16th or 17th July  and from their flat in Chelsea
• The defence say there was no incriminating material
• The police found the only missing items on the 18th
• There was no intention to pervert the course of justice

While Mr. Hanna accepts removing items from Chelsea Harbour at the request of Mr. Brooks in the knowledge that Mr. Brooks was seeking to keep them away from the police, he had no intention of perverting the course of justice. The reason he agreed to take the brown bag and the items coming from the flat from the underground car park was that he believed they contained legal pornography.

• Brooks’ case is that she had no clue what Charlie was doing and only found out about it afterwards

In Summary

The jury’s route to verdict in Count 7 is

Charlie Brooks

1. Are you sure that Charles Brooks carried out a course of conduct involving moving property from Jubilee Barn on 15th 16th or 17th July 2011 and/or moving property from the flat at Chelsea Harbour on 17th July so that the police would not find it during searches?
If you are sure go to question 2; if you are not sure your verdict is ‘not guilty’.
Mr. Brooks accepts that he moved property from the flat in order that the police would not find it in a search.
2. Are you sure that the movement of the property had a tendency to pervert the course of public justice? It will have done so if material relevant to the police investigations known as Operations Weeting and/ Elveden has been kept away from the police.
If your answer is ‘yes’ then go on to question 3. If you are not sure then your verdict is ‘not guilty’.
3. Are you sure that Charles Brooks intended by the movement of the property to pervert the course of public justice, that is to keep material relevant to the police investigations known as Operations Weeting and/ Elveden away from the police?
If your answer is ‘yes’ then your verdict is guilty; if your answer is ‘no’ your verdict is ‘not guilty’.
If you find Charles Brooks not guilty then Mark Hanna and Rebekah Brooks must also be found not guilty and you do not need to consider the evidence in their cases.
Mark Hanna:
1. Are you sure that Mark Hanna played a part in moving property on 17th July 2011 which came from Jubilee Barn and/or the flat at Chelsea Harbour so as to prevent the police inspecting it? Mr. Hanna accepts that he moved material from the underground car park at Chelsea Harbour to prevent the police finding it.
If you are sure go to question 2; if you are not sure your verdict is ‘not guilty’.
2. Are you sure that the movement of the property had a tendency to pervert the course of public justice? It will have done so if material relevant to the police investigations known as Operations Weeting and/or Elveden has been kept away from the police.
If you are sure go on to question 3. If you are not sure your verdict is ‘not guilty’.
3. Are you sure that Mark Hanna intended by the movement of the property to pervert the course of public justice, that is to keep material relevant to the police investigations known as Operations Weeting and/or Elveden away from the police?
4. If your answer is ‘yes’ then your verdict is guilty; if your answer is ‘no’ your verdict is ‘not guilty’.
Rebekah Brooks:

Only consider her case if you have found Charles Brooks guilty. If your verdict in his case is ‘not guilty’ your verdict in her case will also be ‘not guilty’. If you are sure that Charles Brooks is guilty, ask yourselves in her case whether you are sure that Charles Brooks committed the offence at her instigation in order to keep incriminating material relating to the police investigations known as Operations Weeting and/or Elveden away from the police.

So there you go. Though it seems convoluted at times, the route to verdict has been laid out to the jury