back to article CPS: We won't prosecute over BT/Phorm secret trials

The Crown Prosecution Service confirmed today that it would not be prosecuting anyone in BT's secret trials of Phorm's web monitoring system. "We have decided not to consent to a request from an individual to begin a prosecution of BT Group Plc and Phorm Inc in relation to alleged unlawful interception of internet browsing …


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  1. Anonymous Coward
    Anonymous Coward

    You don't need a title.


    We obtained expert evidence to enable us to understand how the technology worked, how many people were affected and how they were affected.


    I don't suppose the experts were from BT and/or Phorm... that's be too obvious... wouldn't it?

  2. Anonymous Coward
    Anonymous Coward

    is this really a surprise?

    Justice may wear a blindfold but she seems to sneak a look at how much money they pop on her scales

  3. Alexander Hanff 1

    Thanks for the support

    Thanks to everyone for their support on this issue. I am going to try and get this issue raised in the House of Commons in the near future and i am considering several other options such as:

    1. Complaint to the SRA against the solicitors who advised Phorm/BT this was legal (ondue dilligence grounds)

    2. Court Action against the CPS under the Human Rights Act

    3. Judicial Review of the CPS process on the grounds that DS Barry Murray managed the investigation (the same officer who refused to investigate when i handed the complaiunt to the City of London Police).

    So I m not done with this yet. The CPS decision today is an incredibly dangerous one as it clears the way for big business to break the law so long as they first obtain a legal opinion which supports their goals

    Aain, my thanks for all the support over the past 3 years and I hope it continues for as long as there are options available.


    Alexander Hanff

    1. Anonymous Coward
      Anonymous Coward

      Acting on professional advice is not a defence.

      >The CPS decision today is an incredibly dangerous one as it clears the way for big business to break the law so long as they first obtain a legal opinion which supports their goals

      Surely there is already some precedence against this. I can take advice from a qualified accountant however when push comes to shove it would be my company which would be liable if it acted illegally based on their advice. I believe this is already well established.

      1. Vic

        There is no defence...

        > Surely there is already some precedence against this.


        But what the CPS have said is that they currently deem the act of obtaining advice as a defence against anything that takes their fancy, Whether such advice needs to be accompanied by a sufficient number of stuffed brown envelopes sent to the CPS is left as an exercise for the reader.

        So BT apparently took some advice. It can't have been very good advice - allow me to quote from the top of the very first page of RIPA2000 :-


        1 Unlawful interception

        (1)It shall be an offence for a person intentionally and without lawful authority to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of—

        (a)a public postal service; or

        (b)a public telecommunication system.


        That pretty much wraps it up...

        The next time I'm in trouble, I shall merely tell Mr. Plod that I took some advice from SomeBloke, to be found in his general haunt of ThePub, and he categorically told me it was fine and dandy to help myself to this 'ere Aston. According to the CPS, this is now valid :-(


        1. Anonymous Coward
          Anonymous Coward

          Home Office

          I suspect it was the Home Office advice saying it was OK that weighs more heavily here than any legal advice. Any court case would turn into an argument between two arms of government while BT and Phorm stood by and watched.

          1. Vic

            Re: Home Office

            > I suspect it was the Home Office advice saying it was OK

            But the Home Office *didn't* say it was OK. They said it *would* be OK if they sought and received permission from those subjected to their spyware.

            BT did not seek permission. Thus, the HO advice does not apply because it was completely conditional on something that did not happen.


    2. Anonymous Coward

      Legal opinion

      "So I m not done with this yet. The CPS decision today is an incredibly dangerous one as it clears the way for big business to break the law so long as they first obtain a legal opinion which supports their goals"

      Well it worked for Tony Blair over the Iraq war

  4. Tom 38


    But how does one go about starting a private prosecution?

    Presumably, anyone caught with a spliff can now claim that they took advice from their dealer, and cannabis has now been ruled legal in the UK - a genuine misunderstanding guv, no criminality meant, probably won't do it again.

    The ICO is always complaining he doesn't have powers to go after or punish data losses - well here is a clear case for him to prosecute to clearly lay down a marker - content transmitted or received by an ISP on a customers behalf is both private and sacrosanct. You must not look at the content, other than to maintain the efficient running of your network. Trying to profit from your customers data is wrong and immoral, and when caught you will be seriously punished.

    I think a massive fine is in order in this case, with directors going to jail if it happens again. Proper jail too, not Ford Country Club.

    The whole thing is incredulous. From BT and their lawyers thinking it was legal in the first place, to CPS thinking there is no merit in prosecuting, or that they won't get a conviction when BT have admitted to doing it. I can imagine how the conversation went at CPS:

    Lawyer A: So they admitted to it?

    Lawyer B: Yep, no chance of a conviction now.

    Lawyer A: Well, they didn't mean to, ignorance of the law is a valid defence, right?

    Lawyer B: Well, I'm ignorant of the law, so yeah, guess so.

  5. amanfromMars 1 Silver badge

    A cynical ploy to try and avoid top executive prosecution and jail time .... at HM pleasure?

    "It said there was insufficient evidence to begin a prosecution .... "

    Meanwhile, in another part of town ......

    Remind again, who was/is Cameron's right hand man? Coulson/Murdoch? No wonder Dave and Sam fcuked off foreign, for the weekend ...... with his bag man outed as nothing more than a dodgy plonker, caught bang to rights in cahoots with the polis, which has sunk to new lows.

    Or have I got the wrong end of the stick and that is not the way it is?

  6. Alexander Hanff 1


    apologies for all the typos, as you can probably guess I am getting hit from all sides today.

  7. Anonymous Coward
    Anonymous Coward

    Right so....

    "As there was no evidence to suggest either company acted in bad faith, it could be reasonably argued that any offending was the result of an honest mistake or genuine misunderstanding of the law,"

    - that annoys the life out of me. What about all the other victimless "crimes" and the fact that every member of public is expected to have full knowledge of the laws of the land ? Back-hander somewhere here. Judges with BT shares... Who knows.... A/C, for once.

  8. John Smith 19 Gold badge
    Big Brother

    Interesting precident

    "I genuinely" thought it was not a crime -> no further action.

    I do hope a *lot* of defense lawyers read that one.

    The CPS may just have made itself the biggest clue stick imaginable.

    I do hope defense lawyers in the UK enjoy beating them with it.

  9. MinionZero
    Big Brother

    What BT and Phorm did was effectively the same as News of the World

    So in one part of the news today, we have very serious and on going investigation and charges against the News of the World for wire tapping and spying. Yet in this news, BT and Phorm get away with effectively wire tapping style spying on many more people!

    Looks like Phorm and BT have rich and powerful friends, whereas the News of the World was pissing off the rich and powerful, by spying on them.

    I guess us little people don't deserve legal protection. Thanks CPS and government for showing you really protect the rich and powerful but don't protect us little people.

    Congratulations also must go to the CPS, because today you crooked corrupt bunch of two faced bastards have today shown without any doubt, that you are now in direct violation of Article 1 of the Declaration of Human Rights, in that you have completely and wilfully failed to uphold the primary principle that "All human beings are born free and equal in dignity and rights.". That’s the most fundamental aspect of Human Rights law. Legally CPS you cannot treat the News of the World differently than you do to BT and Phorm, yet that is exactly what you have done here today. Checkmate CPS, you've just shot yourselves in the foot big time. By law we the little people deserve as much legal protection as the rich and powerful who are pissed off with the News of the World spying. We little people are just as pissed off by BT and Phorm spying on us.

    What we need now is for the European Commission to step up moves to sue, punish and humiliate the UK government and CPS into backing down due to their now total failure to abide by the most fundamental principles of international Human Rights law. Also government department heads now need to be thrown out and prosecuted for Human Rights violations against the people of the UK, over their depth of corruption in this Phorm/BR ruling today.

    These corrupt two faced bastards need to be punished and thrown out.

    1. Anonymous Coward
      Anonymous Coward


      I think the difference here is the bit where it says BT got advice from the Home Office who said they weren't breaking the law. I doubt NOTW did that as regards phone hacking. I think that's the key part of this - the Home Office said it was all right.

      1. Alexander Hanff 1

        No they didn't

        The Home Office said it might be legal if they obtained consent; no consent was sought or obtained. Home Office never committed and in fact explicitly stated on the record that their opinion did NOT constitute legal advice or a qualified legal opinion.

        ICO never cleared Phorm either, they admitted (again on the record) that Phorm probably breached PECR and re-iterated the Home Office on consent requirement.


  10. Anonymous Coward
    Anonymous Coward

    Phorm: Still doing what they do best.

    "Informal advice" on the same matter was also provided by the Home Office, said the CPS

    Several people at phorm used to openly chortle that they were the ones giving the Home Office advice. Home office were by several accounts utterly clueless about their own legislation. Bless.

    1. Anonymous Coward

      There is something rotten at the heart of the UK "democracy"

      I suspect you may be onto the main reason here. Clearly, if a government department was advising a private company on the finer aspects of the law, then assuming said private company complied with that advice, it would be very embaressing, if that company were to be later successfully prosecuted for it's actions.

      Especially if it kept the paper trail to show it had been advised, and acted accordingly.

      The problem here, is ultimately, it's one pair of hands washing another. The CPS is an arm of government, as is the Home Office. Incestously so.

      No doubt the UK press will ignore this story anyway - I would be amazed it it got past page 10 in any paper that prints it.

      The real problem will be when firms start asking the government for advice on employment law, or nuclear safety ....

  11. Maty

    'not in the public interest'?

    Oh, it was very much in the public interest to prosecute - if we define 'public' as the ordinary people who live in the UK.

    If we define 'public' as those public institutions that are very interested in intercepting the communications of ordinary citizens, and for whom a prosecution would have a pronounced chilling effect, then yes, the prosecution is definitely not in their interest.

    Given that the CPS is naturally aligned with such institutions, their definition of 'public' comes as no surprise.

  12. Anonymous Coward
    Anonymous Coward


    Funny (strange) isn't it how powerful companies seem to be able to do anything and it turns out it was ok after all, and yet if an individual does something, the book is thrown at them. What causes that, do you reckon ? It's a good job we have the same laws covering everyone and not one set for the powerful and another for the rest of us.

  13. Anonymous Coward
    Anonymous Coward

    This is not int eh public interest...

    ...yet it is interesting to see what sort of thing the CPS thinks ARE in the public interest.

    One case that springs to mind is one I heard about from a friend of mine, who happened to be the defence barrister in question. The story goes a little something like this:

    A gentleman (lets call him Mr A) receives bills from a large utilities company (lets call them Company B) despite not being a customer. He repeatedly phones them and writes to them and receives assurances that teh mistake will be rectified, but continues to receive threatening letters demanding payment from Company B.

    Eventually Mr A gets fed up with this, and takes matters into his own hands. He takes the reply-paid envelope and staples it to a bag of rubbish from his kitchen (the reply-paid envelope covering an item of any size or weight, to be paid for by the receipient).

    When it reaches the local Royal Mail sorting office, the bag of rubbish splits open, the local constabulary decide to arrest Mr A on terrorist charges. The reason for this? The bag of rubbish contains a large number of banana skins (Mr A quite likes bananas). bananas contain potassium. potassium can be used to make bombs, ergo Mr A is a terrorist. You couldn't make this stuff up.

    Despite the sheer farce of this case, the CPS decide to push for these terrorism charges to be prosecuted. Needless to say, when it gets to court, the judge takes one look at the case and throws it out. Thank goodness for some common sense in the judiciary.

    The fact remains that the case should never have been brought. My barrister friend (who had the job of representing Mr A) assures me, however, that technically, by the defionitions under the law, as passed by our beloved previous government, Mr A did actually commit a terrorist act.

    Not in the public interest? My arse...

    AC, to protect the innocent...

    1. Anonymous Coward
      Anonymous Coward


      --"One case that springs to mind is one I heard about from a friend of mine, who happened to be the defence barrister in question. The story goes a little something like this:"

      I guess the case can't be 'secret' if there actually was a trial, so why all the 'Mr A' stuff - didn't your mate tell you the actual names?

      Why 'a little something like this' when there must be some reports online?

      --"You couldn't make this stuff up."

      Oh, I'm sure some people could.

      1. Anonymous Coward
        Anonymous Coward

        To be honest,

        I didn't ask the name of the person, having due respect for the privacy of others, and my barrister friend didn't offer that information, having a certain amount of respect for the privacy of her client.

        I the end, as I understand it, there wasn't a trial, since the judge took one look at the case and threw it out. I'm sure if you were really interested, you could get the relevant details from Bristol Crown Court.

        1. Anonymous Coward
          Anonymous Coward


          Getting to court rather makes a thing public as opposed to private.

          --"I'm sure if you were really interested, you could get the relevant details from Bristol Crown Court."

          I'd have thought various other people and news organisations would have been *way* ahead of me in doing that, if the case is essentially as you describe.

          It's just that so far, I can't seem to find anyone who's reported on it, which does seem odd.

  14. EvilJason

    Three little words

    CLASS ACTION SUIT or what ever its uk equivalent is.

    Get the names of people who have been phormed and see if they would be interested in a class action suit or similar against BT and Phorm and if you get enough people involved show that there is enough public interest to warrant a prosecution.

    The cps does not decide that ignorance of the law is an excuse. its not up to them to decide the law there to do there job which in this case they have failed to do.

    Go above and beyond the UK and go to the European courts with this one.

    1. Alexander Hanff 1

      No such process

      There is no such thing as a class action in the UK and I suspect a "group action" would be seen as unsuitable for this situation, but am no expert on group actions.

      1. Robert E A Harvey

        unfortunately true

        And, frankly, I think their introduction would help cases like this but otherwise be a Bad Thing (TM)

        In theory the law is supposed to stand in for all the victims and prosecute the offender. In this case, hands have probably been shaken with infolded fingers.

  15. Mike Shepherd
    Thumb Down

    Legal advice

    "BT and Phorm had received considerable legal advice...and were advised it was unlikely to be contrary to..."

    There seems to be some confusion here. Lawyers are paid to say that black is white (and, if paid even more, to argue this before a judge).

    What matters is the decision of a court (and only that). If "legal advice" carries weight, we could all "get our mitigation in first" by paying for a legal opinion in case our crookery came to light.

    1. Robert E A Harvey


      For years people have paid for an 'opinion' from a QC, and filed the resultant letters. They are taken very seriously by the courts as evidence of best efforts.

      Doesn;t mean I approve of phorm, who all need to f*k off and die of something horrid [1], but lawer's opinions are routinely sought before going to court.

      [1] Twice. At least.

  16. amanfromMars 1 Silver badge

    In a banana republic, what do you expect from monkeys.....miracles?

    Mr Hanff,

    There are sensitive and valuable national security interests and special techniques which any investigation is easily bound to uncover and/or highlight. It is therefore most unlikely that justice and the law will play any further part in the case. It is always the case in such cases which have fools and tools unmasked in the act of doing something they were incapable of doing well and unnoticed. History is full of such national follies and international blunders.

    One does look forward to finding out whether Chilcot has balls enough to share the truth in their deliberations or whether they'll cop thirty pieces of silver to deliver Blighty to the knackers yard ..... with a less than forthright and unambiguous verdict.

  17. nsld


    The Criminal Protection Service strikes again!

    That is all

  18. oldredlion

    You can't handle the title!

    "it may become clear prior to the collection and consideration of all the likely evidence that a prosecution would not be in the public interest."

    That's because the Home Office told you in advance that there was to be no trial or prosecution or more importantly to set a precedent regarding interception by private companies. So not only have you pissed off a lot of people you've also wasted a lot of money on this phoney review.

    Stupid bastards.

  19. Andy Watt

    Keep us posted Alexander H

    This is a pisspoor sham of a mockery of a sham, CPI. Hang your heads in shame. Circular arguments don't win awards...

    You can count me in as another willing MOP who would contribute some green to crushing Phorm under the heel of an outraged public (eventually, barristers willing).

    It's them I want, rather than BT per se (although they need a good kicking for this debacle) as their CEO is (was?) such a donkey bollock.

  20. groovyf

    Something's rotten...

    @A Hanff...

    ***3. Judicial Review of the CPS process on the grounds that DS Barry Murray managed the investigation (the same officer who refused to investigate when i handed the complaiunt to the City of London Police).***

    Wasn't going to be an ubiased investigation if he'd already refused in the first instance. Think you have every right to complain there (amongst other reasons!)

  21. David 45

    I must have mis-heard

    I see. So if I do something illegal and then claim to have "misunderstood" the law that makes it so, that lets me off the hook does it? Where's me shotgun, mister?

    1. Anonymous Coward
      Anonymous Coward


      Sure, just pay a Queen's Counsel to give you their informed opinion on the matter and keep that in writing. You could even lodge it with the courts before you start shooting. I doubt the legal advice described here is someone ringing Injury Lawyers Direct and asking them what they reckon. A QC won't tell you what you want to hear, they'll give you a detailed and informed opinion on the law as written, as interpreted through case precedents. Put another way - if a QC says "fill your boots", you'll almost certainly win if you do end up in court. Probably the CPS are unwilling to proceed because they'll lose. That loss could then render RIPA unworkable and we're left with no usable legislation in place.

      1. Robert E A Harvey

        there is the rub

        >Probably the CPS are unwilling to proceed because they'll lose.

        >That loss could then render RIPA unworkable

        Someone very senior has decided that. I suspect this is what is meant by "not in the public interest".

        personally I'd like to see RIPA torn up and go back to whatever we had in the 1960s.

      2. Vic

        Re: Advice

        > Probably the CPS are unwilling to proceed because they'll lose.

        Why so?

        BT do *not* have advice from a QC saying that their actions were permissible; they have one saying that consent is required (which consent they did not even try to obtain).

        So the CPS would appear to have a case against BT for a clear breach of RIPA2000, and all BT have in defence is some advice saying that the way to make it legal is to obtain consent first, but they didn't do so.

        Sounds like an easy win to me...

        > That loss could then render RIPA unworkable and we're left with no usable legislation in place.

        Aside from that really not being the end of the world, I think you over-estimate what advice BT were actually given...


  22. Anonymous Coward

    Another interesting point

    Is that the CPS have effectively said that legal advice writes the law. If I receive legal advice that tells me something is legal, I can do that thing even if it subsequently turns out to be illegal, because that would just be a misunderstanding, and the act of seeking legal advice proves you have no intent. I can believe that defence for intent based offences. But this is not an intent based offence. It was a clear violation of RIPA, by a body (BT) that is in a position to massively abuse RIPA through the fact that it still runs most telephone exchanges. The same company that has stolen information to use for an advertising campaign, could equally well be stealing credit card numbers when we type them into our phone. Utter, utter fail.

    The interesting thing is that, for low profile cases, the CPS just assume the police were right, and deal with issues when they first turn up for trial. It is very rare that the CPS have even read the case file until they arrive for the first trial. But for high profile cases they are very reluctant to prosecute.

  23. SilverWave

    Useless Bastards, sold out the general public to big business again eh?

    Absolutely infuriating.

  24. Martin Nelson

    The "Public Interest"

    I just want to make a point here.

    The key phrase used here is "Public Interest".

    The CPS on a day-to-day basis make descisions about how cases are prosectued. If any of you have watched proceedings at even magistrates courts you'd see how underprepared the CPS solicitors often are. Their case loads are often huge and they have precious little prep time.

    Often, it can occur that the CPS will alter a charge based on the likelihood of a successful outcome.

    I'm not saying that it's right, but the CPS's resources are finite, and as such they must prioritise. In this case if it is true that the goverment at the time agreed that Phorm was legal, then the companies involved do have pretty strong defences. I'd take a guess that as that government no longer exists there's no-one left to prosecute other than the legal minds who provided parliament with the advice.

  25. Adrian 4

    There's a name for this

    As with the Met and the NOTW : regulatory capture.

  26. Dick Emery

    There's no justice...

    ...there's just us.

    1. Robert E A Harvey


      Out with the pitchforks, then!

  27. Henry Wertz 1 Gold badge

    Time for a civil suit right?

    I assume you have civil suits in the UK. And probably class action suits as well? I'm just saying, the CPS refusing to doesn't mean Phorm must get away with this crap scott free. You sign up for the class action suit, the lawyer sues on behalf of thousands of people and gets hopefully a massive settlement against Phorm, and you get your fraction of the take. They won't get jail time like they should, but at least they'll probably be bankrupted.

    1. Alexander Hanff 1


      There is no such thing as a class action in the UK and RIPA cannot be used in a Civil Action as far as I am aware. For a Civil Action we would have to go for something under PECR (Privacy and Electronic Communications Regulations) and then we have to prove "damage".

      Civil Actions are incredibly difficult in the UK especially around privacy issues.

  28. Peter Snow

    Who made the CPS, Judge and Jury!

    Who made the CPS, Judge and Jury!

    They have no right to decide, if it is debatable (and it obviously is), then it should be debated in court..

    I think it should be escalated to the European Court on Human rights. We might as well get something for all the millions of pounds we pay to be a membership of the wretched EU!

  29. RW

    Bringing the justice system into disrepute

    Between important government offices being in the pockets of Big Business and the cops clearly pursuing an agenda contrary to the citizenry's best interests, I'd say British system of justice has utterly broken down.

    The only solution, it appears to me, is to fire all the bureaucrats responsible for these insane decisions, and to purge the country's police forces of the bad apples. Sadly, the bad apples among the cops appear to outnumber the sound ones, and have an undue proportion of the higher level positions.

    Is it any wonder that protests in the UK often turn into riots whipped into a frenzy by anarchists?

    Some politicians need to read about the famous Gordon Riots for an example of what Britons can get up to if you push them hard enough.

  30. Anonymous Coward
    Anonymous Coward

    It is my belief they're still at it.

    If you have the infinity service, try typing in a url in the a browser with an imaginary name, such as...

    You should be a 404 not found back, but BT somehow manage to recognise that it doesn't exist, and send you back their own 404 handler. This makes it difficult to write webservice handler software. How can they do this if they aren't reading the data no the way back?

    This is why I sent Kate Barrow in Executive Level Complaints, an email, explicitly forbidding them from using any kind of intercept or analysis software on my traffic, be they call it Phorm, Webwise, etc.

    Naturally I asked her to specifically confirm they weren't doing this, and she's not replied. This is a sign of guilt in my book if ever there was one.

    Since I've explicitly forbidden them from doing it, all I have to do is to sit here now and wait for a big expose, and they're wide open for a law suit. I suggest everyone writes to them and explicitly forbids them from doing it. They have then to ensure they aren't. They can't say they "thought it might be legal because noone hadn't objected."

    I'm currently in the process of testing whether they are, by visiting websites for odd products, I disable cookies by default, and Javascript, to see whether I have adverts come up for the same products elsewhere.

    I couldn't give a shit about the government doing mass surveillance. They protect my friends from nutters. But I object to private companies doing it for profit.

    1. Vic

      Probably not the same thing.

      > You should be a 404 not found back

      Actually, you should get a "domain not found" error.

      They're almost certainly intercepting your DNS lookups, and substituting their own spam page for stuff that's not found. Virgin do the same. They also provide somewhat fragile DNS systems, so you can sometimes get this even when the domain is live and working.

      My advice would be to get yourself a different DNS service. I run my own, but if you don't want to do that, there are plenty of servers available at zero cost. But if you choose OpenDNS, they default to exactly the same behaviour, and you'll have to turn it off manually.


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