While News UK withdrew, at the last minute, their £10-20 million application for costs for Brooks and other corporately defended clients, the claim by Charlie Brooks and Stuart for their private expenses has also been rejected my Mr Justice Saunders today: his full decision is below. Charlie had claimed half a million for his defence, while Stuart Kuttner £130,000 for his individual costs.
Meanwhile, Private Eye has added more detail to the reason News UK withdrew it’s cost application ten days ago,
R –v- Brooks and Kuttner
Ruling on Costs Applications
Summary: I have refused both applications for costs as I am satisfied that the Defendants’ conduct brought suspicion on themselves and misled the prosecution into thinking that the case against them was stronger than it was. They have been acquitted by the jury and are innocent of the charges that they faced and I have considered their applications on that basis. I set out below my detailed reasons below.
- In the trial, which became known as the phone hacking trial, Stuart Kuttner was acquitted of a charge of conspiracy to intercept voicemails and Charlie Brooks was acquitted of conspiring to pervert the course of public justice. These were the only charges that they faced.
- They have applied for their defence costs out of central funds under s. 16 of the Prosecution of Offences Act 1985. In the case of Charlie Brooks, they are the total cost of his representation which amounts to £500,000 plus VAT. In the case of Stuart Kuttner, the sum claimed is £130,000 which is the amount that he had to pay his lawyers before he received an indemnity for any further costs from News International.
- The relevant part of s. 16 provides that: ‘where any person who is tried on indictment for an offence is acquitted, the Crown Court may make a defendant’s costs order in his/her favour.’ It follows that under the statute the Judge, has an unfettered discretion whether or not to make the order. That discretion has to be exercised judicially and guidance has been provided by the European Court and the High Court as to some of the matters that can be taken into account. The guidance does not claim to be exhaustive as the statute provides for an unfettered discretion. It is however clear that the Judge cannot deal with the case on any basis that seeks in any way to go behind the jury’s verdicts and I shall not do so. As I have already made clear in previous rulings, I deal with these applications on the basis that the applicants are innocent of the charges that they faced. The presumption of innocence applies to them as it does to any unconvicted person who is or has been accused of a crime.
- The Criminal Procedure Rules set out how such applications are to be made and processed. The relevant part of Rule 76.4 (5) provides that the ‘general rule is that the court must make an order but may decline to make an order if, for example, the defendant’s conduct led the prosecutor reasonably to think the prosecution case stronger than it was.’
- The guidance set out in the cases is summarised in the Practice Direction issued to supplement the Criminal Procedures Rules. The relevant part of the Practice Direction at 2.2.1 says ‘Whether to make (a costs order) is a matter for the discretion of the court in the light of the circumstances of the particular case. A defendant’s costs order should normally be made whether or not an order for costs between the parties is made, unless there are positive reasons for not doing so, for example, where the defendant’s own conduct has brought suspicion on himself and has misled the prosecution into thinking that the case against him was stronger than it was .’
- The Practice Direction does not purport to give an exhaustive list of positive reasons for not making an order. The one example given is the one which is most often applied in practice and is the relevant consideration in these applications. Had the other applications in this case been continued, it is possible that other positive reasons might have been considered. Mr. Saunders on behalf of Charlie Brooks submits at para. 6 of his skeleton argument that ‘the award of costs is a matter of discretion for the court within the very narrow compass as set below.’ His argument assumes that the example given in the practice direction is the only basis on which the discretion can be exercised to refuse an order for costs. He relies as support for his proposition on the judgment of Ld. Bingham in R (Wayne James) –v- SW Surrey Magistrates Court  Crim LR 690. With respect Ld. Bingham is not there saying that the discretion to refuse costs set out in the act is within a very narrow compass. He is referring only to the example for the exercise of the discretion referred to in the Practice Direction and pointing out that that is within a narrow compass. The Practice Direction had been amended at that time to limit its range which is the reason why Lord Bingham made the observation that he did.
- Merely for a Defendant to bring suspicion on himself by his conduct is not sufficient to justify a refusal to award costs out of central funds. The case of R (Spiteri) –v- Basildon Crown Court 2009 5 Costs LR 772 is a good example of that. Mr. Spiteri was arrested for drink driving and there seems to have been no doubt on the evidence that he had been drinking and driving. He was acquitted on appeal to the Crown Court because the correct procedure for the breathalyser was not carried out as a mandatory question was not asked. Mr. Spiteri applied for his costs which were refused; the reason for refusal that the Court gave was that the Defendant had brought the prosecution on himself.
- On appeal to the Divisional Court, the decision of the Crown Court was quashed because it was wrong in principle to deal with the case on the basis that the Claimant was guilty, which the Court seemed to have done. Richards LJ went on to say that there was ample material for the Court to conclude that the Claimant had brought the prosecution on himself but there was no suggestion that the Claimant’s conduct misled the prosecution into thinking that the case against him was stronger than it was. A more surprising example of this rule is the case of Dowler –v- Merseyrail  EWHC 558 (Admin) in which a Defendant accepted a caution for putting his feet on the stantion of the seats on a train. As a consequence of the Defendant accepting a caution, the prosecution was dropped. A caution involves the acceptance of the commission of an offence. The lower court refused to order costs. One of the reasons given by the Divisional Court for quashing the decision not to award costs was that the Defendant had done nothing to make the prosecution think that their case was stronger than it was. Another reason for quashing the decision was that the Justices in considering costs, should have considered whether the prosecutor had acted reasonably in bringing the proceedings rather than offering a caution at the outset.
- In considering the example of a reason for refusing costs set out in the Practice Direction, I am not convinced that it always needs to be considered as a two stage process. It may be in certain circumstances one action or series of actions could satisfy both limbs, but again, I do not believe that that particular point arises on the facts of these cases.
- The ECHR has considered whether there was a breach of Article 6 when Courts in this jurisdiction have refused to make costs orders. There have been a number of cases but the latest are reported as Ashendon and Jones –v- UK  ECHR 1323. The court emphasised in its judgment that decisions in costs applications must be consistent with the presumption of innocence. They also ruled that courts were entitled to take into account, when considering the test set out in the practice direction, that the Defendant had exercised the right to silence in interview with the police. There have been a series of cases where the European Court upheld decisions of Judges in the Crown Court who had refused costs applications relying at least in part on the failure of the Defendant to answer questions in interview even when they had been advised not to answer by their lawyers.
- There are a limited number of Issues of fact that I have to resolve in considering my decisions as to costs. The charges brought against the Defendants included a number of elements which the prosecution had to prove before the jury could bring in a guilty verdict. Some of the elements that the prosecution had to prove were admitted. Others were in dispute. In relation to the Defendants charged on count 1, the conspiracy to phone hack, it was not sufficient for the prosecution to prove that any Defendant working at the News of the World knew about the phone hacking going on there, they had to prove more than that before the jury could find any Defendant guilty of conspiracy. The relevant legal directions were set out in a document entitled ‘the Charges’ which the jury were given which should be referred to for further details of what the prosecution had to prove on each charge. The fact that a jury brought in a ‘not guilty’ verdict does not mean that they resolved all issues of fact in the Defendants’ favour. It follows that there may be issues of fact that I have to resolve in order to reach my conclusions as to an award of costs.
- The question arises as to the burden and standard of proof that I have to apply in deciding any relevant issue of fact which is not implicit in the jury’s verdict. In most cases where a Judge has to exercise discretion, it is inappropriate to speak of burdens of proof; but where a Judge has to make decisions of fact which can affect the exercise of discretion then, in my judgment, it is necessary to consider both. As the practice direction provides that an order should normally be made to an acquitted Defendant, I would only decide an issue of fact against the applicant if I was satisfied that it had been proved against him. As the costs application is a claim for money, the normal standard of proof would be on the balance of probability, but I have decided in this case that I should only decide a fact against a Defendant if I am sure of it, i.e. that I am satisfied to the criminal standard. That accords with what was said by Simon J in R(Rees) –v- Snaresbrook Crown Court  EWHC 3879(Admin ). Rees was an appeal against the refusal of a Judge to make a costs order after allowing an appeal from the Magistrates. Simon J said in the course of his judgment quashing the refusal ‘the reasons for depriving the defendant of his costs were not clearly articulated and, in so far as they were they did not meet the test set out in the (practice direction). The positive reason is not set out and the matter is not made any clearer by the reference to the court not being ‘certain that the defendant told the truth.’ If credibility was a reason for depriving a party of costs, one would expect the court to be sure of the matter, although without expressing a view which might be taken as suggesting that the defendant was guilty of the offence.’ It is clear in that case that the Judge who refused the order for costs adopted the wrong burden of proof and it is doubtful that the court heard argument as to the standard. It may be that Simon J’s reasoning is that to adopt any lesser standard that the criminal standard ran the risk of ignoring the presumption of innocence. This submission was put forward by Mr. Saunders.
- While I have reached no concluded view on the issue as to the appropriate standard of proof, it seems to me to be both safer and fairer to the Defendants to require proof to the criminal standard. In reality, as will be seen when I come to deal with the facts, the question as to the correct standard of proof is of limited significance in this case.
- While I have a discretion, I consider that, if the exception set out in the practice direction is established, in normal circumstances the application for costs should be refused. If a Defendant brings suspicion on himself and misleads the prosecution into thinking that the case against him was stronger than it was, then there is no good reason, in normal circumstances, why he should recover his costs.
- I have dealt with the history of these costs applications in a previous judgment which should be referred to for further detail. I explained in that judgment that, following the withdrawal of the Ministry of Justice from these proceedings and the expressed neutrality of the CPS, I set out in a document those issues on which I wished to hear submissions. Following that I have received skeleton arguments and heard oral submissions on behalf of Mr. Brooks and Mr. Kuttner and the CPS.
- Charlie Brooks: In the issues document I raised the following matters in the case of Mr. Brooks:
- Part of the prosecution case was that he deliberately kept items away from the flat in Chelsea so that the police would not find them. He knew that the police were likely to conduct a search looking for material relevant to illegal activity at the News of the World, the Sun and News International. The items included material coming from Enstone which he kept away from the flat with the assistance of Hanna; a black computer bag which went from Enstone to London and was not returned to the block of flats until after the police search and material taken from the flat by Mr. Brooks. The material taken from the flat was first hidden behind a refuse bin in the underground car park until at Mr. Brooks’ request it was removed by Hanna plus a brown briefcase which had been in the Range Rover. After the police had searched the flat, Mr. Brooks arranged for the property to be returned to the flat. It was returned by one of the security men, Jorsling, who collected most of it from the premises of NI where it had been left by Hanna. Did Mr. Brooks realise that if the police discovered what he had done it would raise suspicions in their minds? Are these matters capable of being relevant to the question of costs?
- Instructed McBride to send an e mail to the police saying that there was no intention to hide the material which had now been discovered in the underground car park. Is this capable of being relevant to the question of costs? Does it matter whether he was deliberately untruthful or just expressed the e mail badly?
- Refused to answer any questions in interview.
- Saunders conceded in his skeleton argument on behalf of Mr. Brooks that the court could properly conclude that Mr. Brooks did bring suspicion upon himself. That concession is properly made. On the evidence for reasons which I will set out, he did. Mr. Saunders further submitted that there is no evidential basis for a finding that his actions misled the prosecution into thinking that the case against him was stronger than it was. That is the issue on which I have to focus my considerations.
Among the legal directions that I gave the jury was a charges document which set out the legal constituents of the charges; the cases of the parties and the questions that the jury needed to answer to reach their verdict. That provided the framework for the jury’s deliberation. The relevant parts in Mr. Brooks’ case are:
‘Count 7 is a count alleging that Rebekah Brooks, Charles Brooks and Mark Hanna together with others named on the count perverted the course of public justice. This offence is committed where a person or persons carry out a course of conduct which has a tendency to, and is intended to, pervert the course of public justice. The course of conduct alleged by the prosecution is that these Defendants together with others have successfully kept away from the police searches on 17th July 2011 an item or items containing material relevant to the on-going police enquiries called Operations Weeting and Elveden. Those enquiries were concerned with Mrs. Brooks and other people who worked at the News of the World and the Sun and people who worked for News International. The prosecution say material relevant to the police enquires was removed from Jubilee Barn either on 15th ,16th or 17th July and the reason for removing it was so that the police would not find it when they searched Jubilee Barn after Mrs. Brooks’ arrest on the 17th July. The prosecution say that property has not been recovered. Alternatively or additionally the prosecution say that material relevant to the police enquiry was removed from the flat in Chelsea by Mr. Brooks before the police search which has not been recovered by the police. The reason for removing it the prosecution say was to prevent the police finding it on a police search. The prosecution say that the only sensible explanation for the activity on the 17th July involving not only Mr. Brooks and Mr. Hanna but also a number of security men employed by News International is that incriminating property relevant to the on- going police investigation was being kept away from the police. The Defence case is that there was no incriminating material and nothing has gone missing. Everything brought from Oxfordshire by the Brooks’ and everything taken from the flat at Chelsea Harbour before the police search was found by the police on 18th July. All the items coming from Oxfordshire and those which were removed from the flat have been taken and examined by the police. Where the recovered items were computers or I pads nothing had been deleted from them. Both Mr. Brooks and Mr Hanna accept that at some stage on 17th July they were deliberately moving material to keep it away from the police but say that did not have a tendency to pervert the course of justice because none of that material related in any way to Operations Weeting or Elveden. Further they say that they had no intention of perverting the course of public justice. Mr. Brooks’ case is that the material kept away from the police was legal pornography. He removed it from the flat because he believed that if the police found it a police officer would leak that information to the Guardian which would cause considerable embarrassment. Also on the Sony Vaio which he removed from the flat were book ideas which he was concerned might be lost. He arranged that other material which travelled up from Oxfordshire did not go into the flat because it was material relating to his work which he needed to retain in his possession. None of it related to the matters being investigated by the police.
The questions which you will have to ask yourselves in relation to Charlie Brooks (each Defendant) on Count 7 are:
- 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.
- 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’.
- 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’.’
- The questions that I have to answer require me to focus on some of the evidence in the trial. Much of the evidence in Mr. Brooks’ case was uncontroversial. The jury were not sure that the reason for the movement of the property was to keep away from the police material relevant to the police enquiries known as Weeting and Elveden. They accordingly found him not guilty. I make it clear that I deal with the case on the basis that that was not the purpose of keeping material away from the flat. I will briefly summarise the facts.
- On 17.7.2011 Mr. and Mrs. Brooks left Oxfordshire to travel to London. Mrs Brooks was going to attend a police interview and Mr. Brooks was going to go to their London Mr. Brooks knew that Mrs. Brooks might be arrested while at the police station and a consequence of that was that the London flat and their property in Oxfordshire would be searched. Mr Brooks was aware of this and arrangements were made for solicitors to be present at both properties if and when a search occurred.
- Before leaving Enstone, Mr. Brooks gave Mark Hanna, head of security at News International, a brown briefcase. He did this so that it would not be found by the police in any search. Mark Hanna brought the bag back in the Brooks’ Range Rover which he drove to London via his home which he visited on route. A black computer case was also transported to London in a vehicle travelling from Enstone. In addition to Hanna’s vehicle and the car in which the Brooks were travelling, there were two vehicles belonging to a private security firm which was providing protection for Mrs. Brooks. The evidence was not conclusive as to which vehicle the computer bag went in but Mr. Brooks’ intention was that it would not be at the flat in London if and when the police carried out a search.
- Having gone first to their solicitors’ offices in London, Mrs Brooks went to Lewisham police station for the interview at 12 pm and Mr. Brooks went to his flat. At his flat he met up with Mr. McBride a solicitor who was there to attend any police search. Mr. Brooks removed from the flat a jiffy bag and a Sony Vaio computer which he took down to the underground car park where his movements were picked up on CCTV. He hid them by the rubbish bins.
- Brooks texted a man called Geddes who ran the company which was employed to provide Mrs. Brooks’ security to say that he needed his car keys because they had attached to them a fob which opened the underground car park. He wanted the police to be let in that way to avoid the prying eyes and cameras of the press. Mr. Hanna arrived at the underground car park at the Brooks’ flat at about 2 pm which was before the police had carried out any search. He was accompanied by another security officer to take him away. He parked the Range Rover in the presence of Mr. Brooks and got out carrying the brown bag. Mr. Brooks said in evidence that he was surprised to see that Hanna had brought the bag to the flat as he had intended him to keep hold of it for the day until after the search. He gave Hanna the jiffy bag and the Vaio computer to take away in addition to the brown bag and Hanna left. All these movements were recorded on the CCTV which was later seen by the police.
- Hanna took the property to the headquarters of News International where it was put in a double bin liner and put in lost property where it remained until after the police search had been completed.
- In the afternoon, the police searched the London flat which took several hours. They took away material to inspect. They also searched Jubilee Barn but took nothing away from there.
- At about 5.30 pm, after the search had been completed and the police had gone, Mr. Brooks rang Hanna to ask for the return of his property. Hanna had by now gone home and he contacted the security team and asked them to pick up the bin bags from New International and return them to Mr. Brooks. Due to difficulties that one driver had, the property was not returned to the underground car park until 9.27 pm. It was returned by an employee of the security firm called Darryl Jorsling. No evidence was given by Jorsling at the trial but when the double bin liner was retrieved from News International, it was joined to another bin liner which contained the black computer case with a computer and an iPad in it. The black computer bag had come up from Enstone in one of the cars but there was no evidence as to which car or what had happened to it in the meantime.
- Jorsling took the 3 bags to the underground car park. On the way he picked up a pizza which Brooks had asked for. When Jorsling got into the car park he took the bin liners out and put them by the rubbish bins in the car park. He must have been instructed by someone to put the bags there. The prosecution case was that it must have been Mr. Brooks who he spoke to on the phone when he arrived in the underground car park. Mr. Brooks accepts that he talked to him but he said that they only talked about collecting the pizza and not about where to leave the rubbish bag. If Mr. Brooks’ evidence is correct then someone else must have told Mr. Jorsling to put the bag by the rubbish bin.
- As I do not think it is material to the issue I have to decide, I do not consider it necessary to decide who told Mr. Jorsling to put the bag by the rubbish bin.
- The pizza was collected from Jorsling by a man called Palmer, who was not called at the trial, but can be seen on the CCTV coming down and taking the pizza from Jorsling and then letting him out of the underground car park.
- Palmer and Mr. Brooks had been drinking a large amount of wine in the flat which Mr. Brooks says is why he omitted to collect the bags from Jorsling. He believed Palmer was going to and didn’t realise that he hadn’t.
- The next day the bags were found by a cleaner who gave them to people who managed the flats. They called the police and handed the material over to them. Mr. Brooks was annoyed that they had done that.
- When the police examined the contents of the bags there was nothing relevant to the Weeting and/or Elveden police enquiries. There were in the jiffy bag some DVDs containing legal pornography. There was nothing of relevance to the enquiry on the computers or the IPad or in the various documents recovered from the brown bag.
- The police saw on the CCTV the comings and goings of the property and the involvement of Mr. Brooks, Mr. Hanna the head of security at News International and Mr. Jorsling the employee of the security company. They had no idea at that stage of where the items had been since they left the underground car park or whether everything that left had been returned.
- It was obvious to the police that Mr. Brooks was deliberately keeping property away from the flat so that they would not find it in a search. It was an operation that involved not only Mr. Brooks but News International security and an independent security firm hired by News International to protect Mrs. Brooks.
- Brooks obviously thought that he would get away with it. He didn’t and when the police were able to recover the material and see the comings and goings on the CCTV, the police were suspicious. In my judgment the police had reasonable grounds to suspect that what Mr. Brooks was doing was removing incriminating material so that the police would not find it.
- Brooks’s explanation to the jury was that he did it because he did not want the police to find the pornographic DVDs because it was apparent to him and to others that there was a police source on the Weeting team who was giving information about the enquiry to a Guardian reporter. He feared that the fact that legal pornography at the flat would be leaked and reported in the press would reflect badly on Rebekah Brooks. He was quite clear in evidence that it was his pornography. In relation to the Sony Vaio removed from the flat, he said that contained material which he needed for his work as well as some more legal pornography. The police did find this material on the computer as well as his work. He had taken steps to make sure that the brown bag and the computer bag containing the computer and the IPad did not get to the flat because he did not want the police to find them. They contained material that he needed for his work and he feared that the police would take them away if they found them which would interfere with his work, much of which was urgent.
- I accept, in the light of the verdicts, that Mr. Brooks did not get rid of anything material to the Weeting or Elveden enquiry. I accept that he did what he did for the reasons that he has given. It was however incredibly stupid, as he himself has accepted, and gave rise to justifiable suspicions as to his conduct and the conduct of a number of others who assisted in keeping material away from the police on his instructions.
- I am quite satisfied that Mr. Brooks brought suspicion on himself and on others.
- What did Mr. Brooks do after the police had discovered the bags?
- At 5.40 pm on 18th July which was the same day, Mr. Brooks instructed Mr. McBride to send an e mail to the police on his behalf. I am urged by Mr. Saunders correctly to consider the whole of the e mail rather than just a part. I therefore set out its full terms here: ‘Dear DC Roycroft, Further to our conversation earlier I write in relation to the notice of seizure served upon Mr. Brooks this afternoon. I understand certain items may have been found in an underground car park at Thames Quay which were handed to the police this morning. We understand this is personal property belonging to Mr. Brooks. None of these items contain any information relevant to your investigation into illegal phone interception or corruption and have no connection whatsoever with Mrs. Brooks. There is an explanation as to how the items came to be there that is not consistent with any attempt to conceal them (but we suggest the explanation is irrelevant in the light of the nature of the material.) We submit that it is demonstrable that the material did not fall under the terms of the s. 38 search. A review of the material would make that clear and we submit this should be done now and before any other action is taken and the material returned in the light of that. It is submitted that no offence has been committed here and there are therefore no grounds for arrest based upon the nature of the material. Should you wish for further information or wish to speak to Mr. Brooks to clarify the above please contact me on ……… ‘
- I raised in the trial the issue of whether the phrase ‘There is an explanation as to how the items came to be there that is not consistent with any attempt to conceal them (but we suggest the explanation is irrelevant in the light of the nature of the material.)’ was an accurate reflection of the true situation. The bags were in the underground car park precisely because they had been hidden. What Mr. Brooks meant, he told the jury, was that they had been left in the car park by Jorsling by mistake when he brought the bin liners back. They should have been returned to the flat but Mr. Palmer had not followed or had misunderstood his instructions.
- What the e mail failed to explain was why the property was in the underground car park and why it was being kept away from the police. To the police the e mail must have raised more questions than it answered. It did contain a phone number for the police to ring if they wished to get further information. They did not ring Mr. McBride. It is a matter for the police how they carry out their investigations and no doubt they wished to make further enquiries before interviewing Mr. Brooks.
- There was communication between the police and Mr. Brooks’ solicitors in that Mr. Brooks supplied to the police the passwords to his computers which the police needed to examine the contents of the computers and he also supplied a list of what was in the bags so far as he could remember.
- Brooks was arrested on the 13.3.2012 at Jubilee Barn. The police arrived at about 4.45 am. The Brooks’ young baby Scarlett who was a premature baby and only 6 weeks old was there as well as her maternity nurse and Rebekah Brooks. The police searched the premises, including looking in Scarlett’s Moses basket. Nothing of any significance was found. The police also searched Castle Barn which was next door where Mr. Brooks’ 80 year old mother lived.
- Having been taken to the police station, Mr. Brooks answered no questions during interview. He said that he did that on the advice of his solicitor but understood that it was his decision.
- Brooks was angry with the police conduct. It was very early when the search was conducted. His very young daughter was in the house and the police also disturbed his elderly mother. It was suggested to the police that they should have made an appointment to come or at least arrived later.
- While I accept that Mr. Brooks was annoyed, I take the view that objectively his annoyance was not justified. On the previous occasion that the police gave advance notice of the interview of Rebekah Brooks which Mr. Brooks knew might result in arrest and searches, he had taken advantage of getting that information to remove property from the flat so that the police would not find it. The police, when they went to arrest Mr. Brooks on 13.3.2012, had reasonable grounds to suspect that the property that he had removed on the first occasion related to their enquiries. To give advance notice of arrests on 13.3.2012 would have given rise to an unacceptable risk of any incriminating material being spirited away. The police said they did the search at that hour of the morning because the visit was one of a number of co-ordinated visits and arrests. At least one of the other people who was to be arrested always left his house early and it was important that none of the suspects should be able to warn any of the others.
- I heard from the officer who planned the arrests. He clearly considered all relevant matters before devising his strategy including the age of the child in the house. He was justified in carrying out the arrests in the way that he did and Mr. Brooks’ anger was not objectively justified. I don’t suggest that he wasn’t angry, he clearly was, but anger often isn’t logical.
- In any event being cross with the police cannot be a proper excuse for not answering police questions. I accept that Mr. Brooks was advised by his solicitor not to answer questions. Solicitors frequently do advise their clients not to answer questions. They also warn their clients, as the police do, that it may strengthen the case against them if they don’t answer. Solicitors normally give that advice because they do not know what the police have discovered or will discover. They are concerned that their client may reveal something to the police which may assist the case against him which the police might not otherwise discover. It is not surprising therefore that the advice they give is cautious. They do not know the truth. The client, in this case Mr. Brooks, is in an entirely different position. Mr. Brooks knew that he was entirely innocent but he also knew that he had been extremely stupid in moving the property. Even if he hadn’t realised that, he had been told how stupid he had been by Rebekah Brooks. As a result of his actions, his wife had been arrested for conspiracy to pervert the course of justice as had Mr. Hanna. Mr. Brooks knew that there was no risk to him or anyone else in answering all of the police questions entirely honestly because he had done nothing wrong and telling the truth might have had the result of clearing the matter up completely.
- Brooks is a very intelligent man. He was not intimidated by being interviewed by the police. It might be thought that what he had done in moving the property around cried out for an explanation and there wouldn’t have seemed any good reason to the police why he should not give it, despite the advice given by his solicitor. Mr. Brooks would undoubtedly have given the impression to the police, as he would have done to anyone, that he was not the sort of person who would blindly follow advice unless satisfied that it was a sensible thing to do. He would need to know the reason for it and decide for himself what to do. For whatever reason, he did not do what the police would have thought any sensible innocent man would have done in this situation which was to answer any questions which were asked.
- As a matter of law a failure to answer questions to the police is something which is capable of strengthening the case against a Defendant. In the circumstances of this case the police would undoubtedly have concluded that it strengthened their case against Mr. Brooks and they were objectively justified in forming that view.
- Saunders suggests that a failure to answer questions to the police cannot always be conduct which ‘misleads the police into thinking that the case against a Defendant is stronger than it is.’ I agree that it doesn’t in every case. Each case is fact specific but, in answer to his specific point, solicitors would be well advised, in a case in which it is relevant, to advise their clients that exercising their right to silence may affect their ability to recover costs from central funds if acquitted. That is the effect of the European cases.
- Saunders argues that, even if Mr. Brooks’ failure to answer questions in interview did mislead the police into believing the case against him was stronger than it was, that impression was dispelled by a detailed letter sent to the CPS by Mr. Brooks’ solicitor dated 18.4.2012. The purpose of the letter was to make representations as to why Mr. Brooks should not be charged. It therefore deals with the evidence the police have. It does not fill in the gaps in the evidence as Mr. Brooks could have done in interview. The police would not consider a letter written by a solicitor sometime later as the same as an explanation given in interview, where they would be entitled to seek further clarification by asking questions. The letter would not be admissible in evidence except in certain limited circumstances. The information set out in it was already known by the police. The police were aware by the time of the letter that there was nothing in the property which had returned to the underground car park which was relevant to the Weeting or Elveden inquiry. What they did not know was what had happened to the property between Hanna taking it from the underground car park and Jorsling returning it to the car park plus the computer bag with the computer and I pad in it. We still do not know even after a trial what happened to the computer bag after it left Enstone.
- That letter and its contents did nothing to explain Mr. Brooks’ failure to answer questions in interview.
- I am in no doubt that not only did Mr. Brooks bring suspicion on himself and indeed others but his conduct also misled the prosecution into thinking that the case against him was stronger than it was. I have set out my reasoning at considerable length to avoid giving any impression that any suspicion that Mr. Brooks was guilty has affected my decision. He is innocent of the charge he faced. It does not automatically follow that he must recover his costs and this is one of those case where, for the reasons I have given, it is not appropriate that he should.
- Stuart Kuttner: Kuttner was managing editor of the News of the World and held that job for a long time. He was a well respected journalist who had considerable dealings with the Press Council and advised on the ethics of the profession. He was charged with one offence of conspiracy to phone hack and was acquitted. In relation to Mr. Kuttner I asked the following questions on which I invited submissions:
- The prosecution asserted and the evidence supporting the assertion was not challenged that Mr. Kuttner did not inform the police as to the content of the Milly Dowler as soon as he was told of them as he agreed in evidence that he should have done. He delayed telling the police while he contacted one of the owners of the Recruitment Agency to try and get information for a story in the newspaper.
- The prosecution asserted that Mr. Kuttner must have been aware that reporters had illegally obtained details of a voicemail on the day that he reported the matter to the police. He took no steps to investigate whether it was a common practice at the newspaper nor issued instructions that it should not happen. Are these matters relevant to the issue of costs?
- The prosecution asserted that after the arrest of Goodman he assisted the proposed damage limitation exercise being conducted by NI by getting information from Goodman of what he had told the police and what the police appeared to know. Is this capable of being relevant to the issue of costs?
The relevant directions in relation to the charge he faced were set out in the charges document given to the jury. The directions were: Count 1 : 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’.
The case of each Defendant must be considered separately.
Many of the same considerations apply to Stuart Kuttner as to Rebekah Brooks and Andy Coulson. The prosecution say, and Stuart Kuttner does not dispute, that he approved many but not all of the payments made to Mulcaire. While Stuart Kuttner’s responsibilities in running the paper were not on the editorial side, it is said by the prosecution that he must have known that Mulcaire was being paid, at least in part, to phone hack and, as he authorised the payments to Mulcaire, he must have agreed with at least one other conspirator that the phone hacking should continue. He says that he did not know about the phone hacking. Again it would not be sufficient to show that he ought to have known, the prosecution have to prove that he knew that phone hacking was going on. If you are sure that he knew one or more journalist was accessing voicemails or employing Mulcaire to do it to obtain stories then go on and consider whether he agreed with one or more of the conspirators that it could continue. So the question that you must ask yourself in relation to Stuart Kuttner and Count 1 is: are you sure that Stuart Kuttner agreed with one or more of the conspirators at some time within the dates of the conspiracy, that phone hacking could be used to obtain stories?
- The evidence disclosed that Stuart Kuttner had been involved with the enquiries into the investigation of where Milly Dowler was after the News of the World had a voicemail left on her phone. The relevant facts so far as Stuart Kuttner are concerned are these. Milly Dowler was a 13 year old school girl who disappeared from her home in March 2002. It was a big story in the press including the News of the World. Stuart Kuttner was involved at a reasonably early stage after her disappearance in contacting the police to offer a reward, which was a role which he frequently carried out. On 10th April 2002 Mulcaire was instructed by Neville Thurlbeck to phone hack Milly Dowler’s phone. It is implicit in the jury’s verdict that Stuart Kuttner knew nothing about the decision to hack her phone before it happened. Sometime between the 10th and 12th April Mulcaire accessed her messages and found one from an employment agency in Telford inviting the recipient of the message to an interview in Telford. The message was not in fact intended for Milly Dowler but for another girl with a similar mobile number. Monday’s had misdialled the number and left the message on the wrong phone. Neville Thurlbeck, a senior reporter at the News of the World , believed that it was a message for Milly and that she was in Telford, and on Friday the 12th the News of the World contacted Mondays and a number of reporters were sent up to Telford to find her. Had they done so it would have been a very big story and a coup for the News of the World. At this time the News of the World did not inform the police of what they knew of the phone message.
- On the Saturday morning reporters visited Valerie and Mark Hancox, a mother and son who jointly ran Mondays. Valerie allowed a reporter into her house and talked to him. There is no doubt that the reporters who were visiting various places in Telford in search of Milly were aggressive in their approach. One reporter said he was working with the police; another that they were acting on behalf of Milly’s mother. Neither the police nor Milly’s family had any idea what was going on. Mark, the son, refused to let the reporter into his house but the reporter continued to remain outside. While the reporter was outside Mark Hancox received a call from Stuart Kuttner trying to persuade him to talk to the newspaper. Mark Hancox was able to identify Stuart Kuttner as the caller by listening to a tape much later. That visit took place on the Saturday morning. That evidence was unchallenged by Stuart Kuttner and was read to the jury. Stuart Kuttner rang the police to tell them that the News of the World had intercepted and downloaded the voice mail at 3.11pm on the Saturday.
- The accessing of the voicemail was a criminal offence and should not have happened. The News of the World should have told the police immediately what they had discovered and not waited to see if they could find Milly Dowler before they contacted the police. Their purpose was to get a good The agreed prosecution evidence was that Stuart Kuttner assisted in contacting Mondays as a result of the accessing of the voicemail and did not report the matter to the police immediately. In my judgment Mr. Kuttner must have known that the voicemail message was the source of the information when he rang Mark Hancox. He needed to know in order to be sure enough of his ground when talking to Mark Hancox.
- Kuttner said in his evidence that it would be appalling to delay ringing the police to tell them of the content of the voicemail in the light of what the parents were going through. He said the police should have been told immediately. On the unchallenged evidence in the case Mr. Kuttner did not do that. He waited for several hours before telling the police of the content of the voicemail. Mr. Caplan submitted to me that the important thing was not that Stuart Kuttner delayed but that he did tell the police what the News of the World had found on the voicemail later. In my judgment the News of the World had no option but to tell to the police what they knew when they did. It coincided with the reporters in Telford concluding that they were not going to find Milly so they called off the search. The newspaper intended to run the story in the News of the World that Sunday so they could not but tell the police. Also they wanted some comment from the police on the information that they had found.
- The part that Mr. Kuttner played in following up the story with Mark Hancox and the fact that he was able to tell the police about the interception of the voicemail that afternoon inevitably brought suspicion on Mr. Kuttner as being involved in the agreement to hack Milly Dowler’s phone.
- He was interviewed by the police in August and September 2011. By this time he was not a well man. He had suffered a heart attack and a brain stem stroke which had affected his memory. He said that he had no memory of the interception of Milly Dowler’s voicemail but did say that if it happened he regarded it as appalling. It was against everything that he stood for as a newspaper man.
- I am satisfied so that I am sure that Mr. Kuttner knew of the hacking of the voicemail when he rang Mark Hancox on the morning of the 12th April 2002. I am also sure that he did not report it to the police until a couple of hours later at the least.
- The post of Managing Editor was an important post at the News of the World. Mr. Kuttner had strong connections with the PCC. He was aware of the ethics of the profession and he was concerned with ensuring that they were complied with at the News of the World. On the evidence, after he knew of the hacking of Milly Dowler’s messages, he did nothing to ensure that it did not happen again. I accept that he was not a party to the on going conspiracy after the Milly Dowler interception to hack other people’s phones but he made no investigation to find out the extent of phone hacking at the News of the World after he knew about the Milly phone hack nor did he issue instructions that it should not happen again.
- I also raised the issue in my note of Stuart Kuttner’s involvement in de- briefing Clive Goodman after he had been seen by the police and whether that is something that I should take into account in the exercise of my discretion. While I have no doubt there was considerable interest from management in what the police had asked Goodman, what he had told them and the extent of the police’s knowledge, I do not think that it has been proved that Kuttner’s involvement went beyond what any executive might wish to know when an employee is arrested for offences committed during the course of his employment. I am not sure that he played an active part in an attempt to limit what Goodman told the police.
- I am sure on the evidence that I have heard that Stuart Kuttner did bring suspicion on himself by his conduct in relation to the Milly Dowler investigation. His conduct thereafter was such as to make the prosecution believe that their case was stronger than it really was. In those circumstances it is appropriate that I exercise my discretion to refuse to make a defence costs order in his case as well.