CPS to consider private prosecution over stealth Phorm trials

The Crown Prosecution Service will examine evidence that BT and Phorm's stealth advertising targeting trials broke wiretapping laws, despite a recent police refusal to pass the case to prosecutors. The office of the Director of Public Prosecutions told campaigner Alex Hanff that a private prosecution under section one of the …

[Eddie Edwards]

CPS guidance

The PDF say:

g there is evidence that the offence was premeditated;

h there is evidence that the offence was carried out by a

group;

Well it was certainly premeditated and it was certainly carried out by a group.

Sounds like it is in the public interest to prosecute FTW.

Where's the evil BT logo? Gates will have to do.

[Jim Coleman]

OK.....

How can it NOT be in the public interest if 10,000 people were affected? That's pretty bloody public if you ask me, not to mention rather interesting.

If the CPS drop this, I hope the EU pick it up and give it a thorough rogering.

If the CPS go ahead with a prosecution, that calls into question the Police's refusal to bring charges.

[Tom Chiverton]

Bang to rights

Yup, I've just read the sections too. Clear-cut, given the EU findings, one would think.

[Gulfie]

Plods or Plonkers

If the CPS take this up, and given the quotes above I see no reason why they would not, then the plods are going to be left looking like plonkers...

...unless somebody from the government has a word with them too... remember the Al Yamama investigation that was dropped because it wasn't in the Government's interest to pursue it. Even though they appear to have an international obligation to do so...

[Anonymous Coward]

The law isn't an ass, but..

How can they decide whether or not to bring a prosecution based on whether a jury will find the defendant guilty?

What exactly is the point in having a jury if the CPS can predict what a jury will decide? If the CPS decide a jury is unlikely to deliver a guilty verdict, how do we test whether they are right or not?

Clever isn't it? Whenever they decide the jury is unlikely to find the defendant guilty they will never be proved wrong because there will never be a trial to test that decision? As far as the CPS are concerned trial by jury is, at best, inconvenient.

Could it be that if the CPS think there is a danger of an inconvenient guilty verdict then they don't prosecute? And if an inconvenient not guilty verdict comes along then press for a retrial until they get the verdict they wanted?

Or maybe it's just more evidence that the CPS, like the rest of the public sector, are target driven and are therefore looking at ways of making the results match the predictions?

A choice of two cynical viewpoints. Lovely.

[Neil Greatorex]

Got to tip my hat

To Alexander Hanff, he's really taken the ball and run with it.

Come on you chap(esse)s, some of us have signed the petition, some of us have written to our MP, some both. Unfortunately the vast majority have done neither, leaving it to upstanding citizens like Mr. Hanff to carry them.

If you don't want Phorm illegally intercepting your data, do your bit. It's not good enough just changing ISP, this has to be stopped!

Phuck off Phorm.

[Bobby]

We may get justice after all...

The way I see it is BT maintain they had a right to do what they did assuming users implied consent and this may be arguable however BT fell very foul of the law when they involved 3rd parties of such dubious backgrounds to access all our private data/communications without explicit consent.

That's the way the CPS will see it as will the judge at the end of the day and BT/Phorm should both go down for it.

Any investigations should also focus on 121media's previous illegal activities before they hooked up with BT and we may eventually see a bit of justice done for that as well.

[Anonymous Coward]

Can't we...

... just chuck the BT and Phorm execs in jail for 42 days?

Oh...

[Bobby]

A little extra comment here;

If the CPS ever allows prosecution after scrutinising the evidence it will no doubt be entirely taken over by the police to pursue. No one does a private criminal prosecution in this country as this would only make a mockery out of the British juridical system that we pay to serve us.

[anonymous sms]

and pigs will fly

For 'Public interest' read National interest

National interest read commercial/economic interest.

For commercial/economic interest read the interest of the Mass Marketing industry that is lobbying the Government.

[Anonymous Coward]

WOOT YAY

Where is the beer icon, Mr Hanff where do I send beer tokens.

Mines the one with the public intrest test in the pocket.

[James Pickett]

Premeditated

"no criminal intent"

Killing someone accidentally is still manslaughter!

[Neil Barnes]

"...as the aim was to enhance their products"

I admit it, I'm baffled. In what way does not delivering the internet content I asked for enhance the experience?

[Anonymous Coward]

Fat chance, but...

While I won't be holding my breath (given every bit of uk.gov so far has made it up as it goes along), the opportunities for proceeding on the grounds of public interest look promising, at least to this layman. From the guidelines 5.9, the following look like they fit:

-e the defendant was in a position of authority or trust

-f the evidence shows that the defendant was a ringleader or an organiser of the offence

-g there is evidence that the offence was premeditated

-h there is evidence that the offence was carried out by a group

-o there are grounds for believing that the offence is likely to be continued or repeated , for example, by a history of recurring conduct

This would certainly be true:

-q a prosecution would have a significant positive impact on maintaining community confidence.

I wonder if BT's IP ranges count as an "area":

-p the offence, although not serious in itself, is widespread in the area where it was committed

Less seriously, there's the Daily Mail clause:

-j the offence was committed in the presence of, or in close proximity to, a child

BT execs must have a mental age of 3 to have done this, but I'm not sure that's whats meant by:

-l there is a marked difference between the actual or mental ages of the defendant and the victim, or if there is any element of corruption

Sadly, 5.10 would appear to offer plenty of wriggle room for the DPP to engage in the now customary handwashing, and they certainy have a track record.

[Anonymous Coward]

@ Norman Andrews

Or Phailing that we could all turn up at a certain address in Regents Street on the 5th of November wearing fawkesian styled apparel.

Viva la Revolution!

Mines the one with the Molotov Cocktail in!

[Watashi]

Terrorists

The only way I can see this being against the interests of the British public is if terrorism is involved in some way. I doubt this will happen, though - using anti-terror legislation to derail a legal case that's not in the government's interest would be like declaring an innocent country a terrorist state in order to seize their assets.

Nah... a country prepared to go to war to protect the principles of democracy wouldn't do that to another democratic state! Sorry, bad comparison.

Mine's the one with the Bjork CD in the pocket.

[Mark]

Could Greg Meyer of Phorm please comment?

My feelings are that it's another wishy washy from the UK authorities, but it does get things a bit closer to a judge, so well done Mr Hanff.

Rumours are that a senior bod from Phorm will permanently be unavailable for comment. Did he jump or was he pushed?

[Frederick Karno]

In the Public Interest ???

With no legal expertise at all i could prosecute this case and win on behalf of the people , so whats the problem ?????

A hefty donation to the Nu/old Labour coffers will put an end to this shenanigans.....but at the end of the day the right greased palms will find a way to get round it.

[I. Aproveofitspendingonspecificprojects]

48 daze

Unbelievable that the gubunt can round up anyone in the UK and give them full bed and bored for more than 6 weeks and no proof of guilt but with all the evidence in the world including admission of guilt, the scum can be allowed to get away with it.

When and if the computers are searched there could be information that might not favour either the police or the cluberment. Someone in the know had given them the go ahead.

And what is this about stocks given to a new mismanager of B...ahem... a person of alternative employment.

[Wayland Sothcott]

defendant was in a position of authority or trust;

Too right they are in a position of authority or trust. The Internet is very important to people and you have to trust the people supplying you are not messing with your data.

"there are grounds for believing that the offence is likely to

be continued or repeated , for example, by a history of

recurring conduct;" Well that is the whole point of the tests but they may change the nature of the offence so it's not breaking the law in future.

Unfortunately the court is only likely to impose a nominal penalty:

Don't prosecute if "the court is likely to impose a nominal penalty;"

Since a huge fine would only be nominal to BT then it means the law does not apply to huge companies, only smaller ones.

[Why]

A show for the europeans?

The goverment might just be putting on a show for the european commission to head off any possible investigations or fines from brussels. I dont expect anything more than a clip around the ears for BT or a minor fine if the CPS decide to pursue (Which is likely).

[Anonymous Coward]

Decommissioned.

Just wondering if this sudden muscle flexing by the CPS is in any way connected to the forced resignation of NuLabour's favourite copper, Sir Ian Blair, Metropolitan Police Commissioner, and late of this parish.

[Alexander Hanff]

Criminal Breaches

From my research of the relevant laws, the penalties should this go to trial and BT/Phorm are found guilty are custodial and a fine; if each count is penalised according to the legislation then we are looking at literally millions of years in jail with unlimited fines.

Of course it would be naive to believe that the court would impose maximum penalties for all counts, but I would expect at least the fine to be substantial and there would be no justification for not issuing a custodial sentence for the 5 years in accordance to the same legislation.

I made complaints under Computer Misuse Act (custodial and fines), RIPA (custodial and fines) and criminal Copyright violations under Copyright, Designs and Patents Act. So really the only acceptable outcome is for who ever was responsible for letting this happen either goes to jail or at least gets a suspended sentence. The fines should this be tried at the Crown Court or higher, is unlimited according to the law.

Alexander Hanff