The PCC released a statement this week saying that it was concerned about the new allegations of phone hacking and announcing the formation of a phone hacking working group ‘to consider the new information that becomes available, and make recommendations to the Commission’.

But even if the Commission is concerned about the practice, what could it actually do and, if it can’t do anything, why is phone hacking (and other forms of subterfuge) in its code of practice?The editors code of practice clearly states that the press must not engage in phone hacking:

Clause 10 * Clandestine devices and subterfuge

The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents, or photographs; or by accessing digitally-held private information without consent.

Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

The code is clear and consistent with the law of the land. But, as the PCC frequently states, it is the Press Complaints Commission’s job to uphold the code of practice not the law of the land (that is for the police).

However, in practice, the PCC cannot uphold the code in relation to phone hacking. It does not have the power or resources to conduct an investigation, it lacks the authority to conduct work which overlaps with that of the police, and it has no effective powers of sanction. When it has sought to uphold the code, it has caused the PCC greater problems.

The major instance of phone hacking relates to the prosecution of Clive Goodman, the News of the World reporter who listened to the voicemail of the Princes. The PCC did not have a role in this until after the court case, when it said it had put in place measures to ensure that other newspapers did not engage in phone hacking.

Since 2004, the PCC’s published statistics about breaches of its clause on phone hacking reveal just one complaint that has been considered (a further three have insufficient explanation to know what happened*).  In that case, Merlyn Brown v Ballymoney Chronicle, the Commission found that:

“there was a sharp conflict of evidence in relation to the circumstances in which the newspaper had obtained the leaflet in question. In light of this – and taking into account the fact that the Commission does not have legal powers of sub poena or cross examination – the Commission could not make a finding under Clause 10.”

The PCC did, however, say that it had conducted an investigation after Nick Davies’ articles in the Guardian alleged new evidence of phone hacking at the News of the World. During that investigation it was told by the editor of the News of the World that after a thorough search of its computer systems, the News of the World could find no evidence that any News of the World staff (other than Goodman and Mulcaire) knew of phone hacking. The commission concluded:

“the Guardian’s stories did not quite live up to the dramatic billing they were initially given . . . there did not seem to be anything concrete to support the implication that there had been a hitherto concealed criminal conspiracy . . . there is no evidence that the practice of phone message tapping is ongoing. The Commission is satisfied that – so far as it is possible to tell – its work aimed at improving the integrity of undercover journalism has played its part in raising standards in this area.”

In this investigation it also had no legal power of sub poena or cross examination but said it was sufficiently satisfied by the evidence it was given that The Guardian was at fault. The Guardian’s editor, Alan Rusbridger resigned from the editors code committee following publication of the PCC’s report.

However, chairman Baroness Buscombe reassured the public that:

“If there was a whiff of any continuing activity in this regard, or anything like it, then we would be on it like a ton of bricks”

Buscombe later told the industry conference, the Society of Editors, that allegations that the number of people that had been hacked numbered in the thousands were misleading, criticising lawyer Mark Lewis who made the allegation.  The PCC later had to make a libel payment to Lewis for her remarks.

The following year, it emerged that the News of the World informed the PCC that it suspended a reporter (understood to be Dan Evans) after a new instance of phone hacking. The PCC did nothing because the case was subject to a police investigation.

In the last fortnight, we discovered that Ian Edmondson, news editor of the News of the World has been sacked over his role in phone hacking. The PCC does not appear to have played any role in this case either; not in revealing the phone hacking or the disciplinary action or even just recording the breach of the code.

It is illegal for newspapers to engage in phone hacking. If someone believes their phone has been hacked they should go to the police (whether the police take action is a different question).

If they went to the PCC, the Commission would tell them to report it to the police. If the police found no evidence, then the case would not be pursued. If it found evidence then they would take action (and / or the individual concerned would take the offender to court).

So why is the clause included in the editors code? Including it gives the impression that the PCC has responsibility for it and can do something about it should it find has happened. Since they do not and cannot then it seems misleading to include it.

* See also
http://complaints.pccwatch.co.uk/case/1294/
http://complaints.pccwatch.co.uk/case/2450/
http://complaints.pccwatch.co.uk/case/2466/