Not long ago, an independent inquiry panel set up to review the notoriously unsettling murder of private investigator, Daniel Morgan, published a report releasing a barrage of potent criticisms towards the Metropolitan Police in what is perhaps the most shocking indictment yet of British policing. The report – detailing the failings of the Met thoroughly – accused it of being ‘institutionally corrupt’ and showing incompetence by protecting its reputation, rather than solving the murder. The danger of covering things up is that the cover up becomes even more embarrassing than the original offence.
So, where did this all start?
10th March 1987, a 37-year-old man by the name of Daniel Morgan, founder of a Private Investigation firm – Southern Investigations, father of two, was found brutally murdered in the car park of the Golden Lion, Sydenham, South-East London, an axe embedded in his head, an axe which swiftly struck his skull four times, leading to direct brain damage and eventually death. While the motive remains unknown, the nature of the attack proves that it wasn’t a random execution, but a premeditated attack. In an effort to conceal fingerprints, the handle of the nondescript axe was deftly wrapped with the weapon sourced from an overseas supplier.
But, out of all the other 600-something murders in the country that year, why did the murder of Daniel Morgan hold significance? Why did this homicide case pop up again some twenty-five years later? Why is this case being hotly debated in the United Kingdom today?
The murder of Daniel Morgan and its aftermath is quite discombobulating, and the passage of thirty-four years cannot attenuate the horror. The events that followed his death involved no less than five prosecutions and investigations, costing an estimated £30 million – all of which seemingly disintegrated. Investigations may fail due to various unexceptional reasons and may just be rather mundane ‘systemic failures’. However, the sequence of failed investigations and prosecutions in the Daniel Morgan case hint at self-protective, wrongful, and concerted acts, and compromised processes. Irrespective of the events following his death, this case has never – to this day – been properly explained or investigated and, the efforts of the Met and the courts have collectively failed to provide justice to the Morgan family.
While many have been arrested, released, re-arrested and again released with relation to the murder, the case was somehow always prevented from going to full trial. It was alleged by many that the Met itself was tainted with malice. One perplexing and underlying problem was the alleged personal and commercial relationship between the Met (local police) and the suspects, whether it involved the exchange of cash in return for information – which would eventually be misused on a sizeable scale – or favours from specific contacts. However, this wasn’t the only alleged ‘dodgy’ business brewing in the Metropolitan-pot. The aftermath of Daniel Morgan’s murder saw the case’s precinct shift from South-East London to infect ‘Fleet Street’. Tabloid media became another commercial entity to enter this alleged ‘supply-chain’ by merrily buying/obtaining information regarding the death of Daniel Morgan from suspects in the murder case. These suspects still had connections to Southern Investigations, extending the entity’s influence as the money started pouring in. Editors of National Newspapers allegedly prepared contracts to lure in central figures in the murder case to supply information.
Regardless of whether the death of Daniel Morgan was somehow related to his knowledge of high-level corruption within Scotland Yard, the circumstances of his death – after almost three decades – hang over everyone. While a conspiracy may be the first notion to pop up in anyone’s mind to explain any odd predicament, I am not a conspiracy theorist, and neither is this post proposing any. I am unaware – genuinely – of who killed Daniel Morgan, why he was killed, and offer no theory. I am instead looking to analyse the legal issues and processes involved in the run up to the release of the report and those flagged within it.
Following the collapse of another attempted prosecution due to ‘serious disclosure failures’, the then Home Secretary, Theresa May, announced the Daniel Morgan Independent Panel (DMIP) on 10th May 2013 to ‘review the circumstances and background of the murder, and the handling of the case since 1987’. The panel comprised former law enforcement professionals and experienced criminal justice experts. It sought to address questions relating to:
- Police involvement in the murder;
- The role played by police corruption in protecting those responsible for the murder from being brought to justice and the failure to confront that corruption; and
- The incidence of connections between private investigators, police officers and journalists at the former News of the World and other parts of the media, and alleged corruption involved in the linkages between them.
A ‘thing’ – out of the ordinary course of events – happens, and that ‘thing’ may require or demand a special explanation of how certain people made it happen and intended it to happen. In such circumstances, it is always wise to assume incompetence over malice. The actions of the Home Office, though, make us think otherwise. While the Independent Panel were free from any obstruction over the eight years it took to compile the report, it was held back from publishing the report due to the alleged pretext of a ‘review’ by the Home Office. Independent Panels follow the principle of – as it says on the tin – being independent of government – or any other branch’s – interference, governments or branches which – time and again – are targets or subjects involved in these investigations. So, the Home Secretary’s last-minute intervention into the report’s publication – a report which could very well contain evidence about the Home Office – ruins the exercise. To begin with, the Home Office attempted to shift the publication date and delay it for a week. Later, the Home Secretary held back the report’s publication until the Home Office ‘reviewed’ the report’s long-awaited content and possibly carried out redaction. It is alleged that there may be cynical reasons as to why the report had been held back. While the Home Office had asserted that it ‘needed time’ to review the report, the reasons provided for this perhaps alleged ‘intervention’ were because of the Home Secretary’s responsibilities concerning national security under the Human Rights Act 1998.
Bearing in mind that a review of this nature has ‘not been raised previously in the last eight years since the panel was established in 2013’, there were certain reasons alleged by legal commentators which give us the impression that these were not serious grounds, but were artificial excuses, improvised to rationalise delay. First, when the ‘intervention’ was declared and the reasons for doing so provided, the Home Office did not hold a copy of the report. So, by logic, the Home Office would be unaware of the circumstances mentioned in the report and whether it raises any national security concerns or Human Rights Act issues. Second, any such issues – if existing – would have already been scrutinised – subject to strict non-disclosure agreements – by the Scotland Yard Legal Department, with the Home Secretary presumably having to rely on the Met for the review, bearing in mind how the report intrinsically deals with police/law enforcement operational issues. Third, in its rather spirited and robust response to the Home Office, the independent panel asserted how this ‘last-minute requirement is unnecessary and is not consistent with the panel’s independence’. In the statement released by the panel, it was mentioned that the report ‘complies with all the relevant legal obligations including the Human Rights Act 1998’ by ‘working closely with its QC and its solicitors throughout’. The panel had itself ensured the legal soundness of the report through the usual process of ‘Maxwellisation’. Under paragraph 5(b) of the panel’s terms of reference, it is unambiguously mentioned that the findings which emerge from the inquiry and the report could be freely released to the Morgan family under the ‘family first’ principle. This, however, would make no sense if the Home Office holds a review beforehand.
While watching a short debate in Parliament on the 24th of May on the Daniel Morgan murder inquiry and report, I noticed how rare it was to see a junior minister so conspicuously unconvinced by her/his own brief. The differences between their demeanour and the content they read out were stark. There was perhaps an impression that nobody, inside or outside the government, was genuinely convinced and sincerely believed the reasons provided as justification by the Home Office for the intervention.
There was a consensus that these references (National Security and the Human Rights Act 1998) seemed to indicate that they would be relying on Section 25 of the Inquiries Act of 2005 and the Michael Stone case. The panel report, however, was not under the Inquiries Act of 2005 – so the exceptions under Section 25 were inapplicable. The most rational reason one could conceive for the reliance on Section 25 would be to avoid setting a precedent for other reports/inquiries – outside the scope of the Inquiries Act of 2005 – to be free from such exceptions, although many less hard-headed explanations are present.
Relying on national security and the Human Rights Act 1998 could also assist in providing cover for or circumventing litigation risks. It is invariably true that when a ‘national security issue’ pops up, the court defers/delegates it to the Home Office. Likewise, the Human Rights Act 1998 mention has been made in conjunction with Article 2 of the European Convention on Human Rights, which provides the ‘right to life’ – although I fail to conceive of any circumstance, no matter how contrived, where the release of the report may have the effect of intentionally depriving a person of her/his right to life. If this is invoked, it would perhaps be a rarity for the courts to carry out any balancing act. If the panel hypothetically threatened the Home Office, a mere mention of the two grounds would help obtain an injunction against the publication of the report. This would work the other way round: a mention of these grounds by government lawyers and it would be unlikely for the court to intervene, making it possible for the Home Office to block any judicial review of its delay. Thus, such tactics – although not an abuse of the law to the hilt – would render the delay litigation-proof.
Regardless of whether there was something cynical about the intervention, it positively led to improved interest in the panel’s report. Were it not for the intervention – however clumsy people might want to label it – the report would have generated little interest beyond those who had personal interest in it. If – and only if – the objective of the Home Office was to conceal the content of the report from the public, their objective may have failed, and the intervention may have proved to be counterproductive. This is clearly the ‘Streisand Effect’ or, in simple words – the backfiring of censorship.
The consensus among the public was to leak the report to an ‘offshore’ publisher – without going through the Home Secretary and Parliament – who would eventually publish it on the internet, eliciting a pandemonic response, making it widely read to the extent that the courts wouldn’t consent to the government’s position on continued withholding. For instance, the Spycatcher case was a quintessential circumvention of the government’s publication ban. Peter Wright’s book – initially published overseas – became so popular that the court eventually quashed the publication ban. However, as exciting as this would seem, it would not be legally prudent. There was a reason why the report was being presented ‘to Parliament’. While it is difficult to find many reports ritualistically published to Parliament by the Home Secretary, the legal importance and constitutional appropriateness of this move was perhaps a fitting way of dealing with such a report. The ‘Absolute privilege’ status provided to the report when published to the public, would make it impossible for anyone to be sued for defamation, with respect to the content of the report. It would make even more sense for it to be ‘published by the book’ – rather than an all-out leak – as it is intrinsically about the rule of law by and of itself.
Why so much of a hullabaloo over a simple report? Irrespective of what it contains and reveals, the report would hold utmost significance. Why? It would provide us with a long awaited, accurate account of the circumstances of Daniel Morgan’s death. Delving into the relationships – if any – (corrupt or otherwise), between Scotland Yard, Fleet Street and the Private Investigators, the report, in essence, would bring us fundamentally closer to ‘Leveson 2’ (now dismissed by the Conservatives, as promised in their 2017 manifesto) in practice. It would also probe why and how prosecutions and investigations kept failing and whether the interlinkages between the three have any relevance with such ‘systemic failures.’ While the reportage of the Leveson Inquiry has led to light being shed on the ‘culture, ethics, and practices of the press’, the Daniel Morgan case was – and still is – being viewed lopsidedly because of such coverage. Likewise, the role of the Private Investigators and the Met remains equivocal in nature. So, the fact that the Panel spent almost eight years compiling the report shouldn’t come as a surprise.
While there did exist a stand-off between the Panel and the Home Office, it was rather transient. Following the intervention made by the Home Office, it was announced in a statement that the publication of the report would take place and a fixed date was provided. One of the underlying concerns with respect to the intervention was the issue of Home Office redactions. The statement – while laying the guidelines on redactions – asserted that redactions – if any – would be identifiable and contestable in court if its reasonableness and relevance prove to be unsatisfactory. So, any silent redactions would be a prelude to litigation. It seems as if the Home Office could have intervened perhaps to be forewarned of the content of the report.
So, on the 15th of June 2021, the 1256-page report of the Independent Panel into the death of Daniel Morgan was published alleging ‘institutional corruption’ – not just in the historical sense, but also in the present sense – against the Metropolitan Police, while revealing no shortage of disturbing material about key elements involved. It did so after scrutinising 110,000 documents which amounted to more than 1 million pages, as well as a substantial amount of secret and sensitive material held by the police. The panel couldn’t conclude whether there was police involvement in the murder, but the subsequent investigation suffered from deliberate Police corruption from the outset.
Bearing in mind how the Independent Panel was explicitly required to probe into the question of corruption in the Metropolitan Police, it indicates that such issues may have existed in the past. Problems in the institutional aspect of the Metropolitan Police are not new. Robert Mark (Commissioner of the Metropolitan Police, 1972-1977) wrote in 1978 that the CID of the Met was the “most routinely corrupt organisation in London.” Again, in 1999, prompted by the racially motivated death of Stephen Lawrence, the Macpherson report found the Metropolitan Police to be ‘institutionally racist’. The report alleged that the “investigation was marred by a combination of professional incompetence, institutional racism and failure of leadership by senior officers.” It defined institutional racism as consisting of “collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture of ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people.” So, hearing the term ‘institutional corruption’ associated with the Metropolitan Police wasn’t a surprise to some.
How did the Panel interpret and define the terms ‘corruption’ and ‘institutional corruption’? Like the Macpherson Report, the Daniel Morgan Independent Panel adopted a broad definition of corruption for the purposes of its work. The definition is based on the key elements of dishonesty and benefit. It included in this definition, some “instances of failure on the part of senior officers or managers in failing to identify corruption, failing to confront corruption, failing to manage investigations, and failing to take a fresh look at past mistakes and failures.” The report explained how all these failings may not fall within the definition of corruption; “some may arise from professional incompetence or poor management.” Nonetheless, the report asserted how an indication of dishonesty for the benefit of the organisation and an inability to reasonably explain such failures as ‘genuine errors’ would amount to institutional corruption. It also emphasised how such failings – when combined with unjustified reassurances rather than candour on the part of the Met – may constitute institutional corruption. The panel has unambiguously shown what comes and does not come within the definition and has scrupulously defined the terms.
Does the report substantiate this serious charge? While asserting that there exists ‘institutional corruption’ and demonstrating it are two different things, the panel has applied the defined terms consistently and has provided numerous sourced examples illustrating the same. The panel accused the Metropolitan Police of failing to properly investigate the case and covering up repeated mistakes thereafter. Britain’s largest police force, while providing ‘unwarranted assurances’ to the family of Daniel Morgan and putting misinformation into the public domain, “repeatedly failed to take a fresh, thorough and critical look at past failings.” The panel concluded how “concealing or denying failings, for the sake of the organisation’s public image, is dishonesty on the part of the organisation for reputational benefit and constitutes a form of institutional corruption.” A conclusion which echoes William Macpherson’s ‘institutional racism’ finding.
The report established that this corruption obstructed the work of the panel itself. The Panel and its report explained how Cressida Dick, the then Assistant Commissioner, now Met Commissioner, “initially refused” to provide access to the HOLMES police database and “limited access to the most sensitive information”, indispensable in reviewing previous failed inquiries. The panel complained that the Met – which was supposed to make its final documents available in 2013 – gave access to a HOLMES encrypted laptop in September 2020, whereas, according to the terms of reference agreed by Theresa May, the panel was supposed to complete the report within a year. The Met was blamed for foot-dragging the inquiry for 8 years. The report also described the relationship between the panel and the Metropolitan police as resembling “police contact with litigants” rather than that of a “body established by the Home Secretary to inquire into a case.”
The report went on to underline multiple significant failings during the initial investigations which took place in 1987 and 1988. It criticised the Met for “totally inadequate” crime scene management, left unguarded and unsearched. The culprit/s – who could have been prosecuted successfully back then – “may have been alerted” by a media leak and “many of the opportunities which were lost were not retrievable.” Subsequent investigations proved to be inconclusive. While arrests were made, alibis were not sought for all, “lines of enquiry were not followed through properly” and search warrants were considered “seriously inadequate.” Evidence suggested how stories were being sold to Rupert Murdoch’s News of the World and Mirror Group, and concerns were raised about police officers “passing on information directly or indirectly to the tabloids.”
The panel provided substantiation of how police corruption hampered both the initial inquiry and subsequent investigation, formally acknowledged and properly investigated in 2011 and then 2017. There was also extensive evidence of “officers meeting suspects in various public houses”. The Met was criticised for not seriously trying to get to the bottom of the rumours hovering around, which alleged that “local officers were involved in lucrative corrupt practices” due to the fear of their pensions and careers being under threat.
On top of the potent criticisms, the report was scattered with recommendations made by the panel. The report advocated for the continuation of forensic investigation, which included obtaining and comparing DNA samples with the recovered axe. It also included recommendations of setting up a statutory duty of candour that all law enforcement agencies would owe, subject to the protection of national security and relevant data protection legislation. In the interest of transparency and public accountability, the panel called for all public institutions to be under a duty to fully cooperate with independent scrutiny bodies created by the Government, such as the panel. In view of the role of the private investigation industry, the panel encouraged for introducing legislation to ensure the creation and use of standards , which included the introduction of the long-awaited licensing measures, which the government suggested in 2013. Bearing in mind the instances of conflict of interest in the case, the panel ordered the Met to ensure that the role of the family-liaison officer should never be carried out by a senior investigating officer of an investigation. The panel similarly ordered all police officers to be under a duty to disclose membership of any organisation, which might call their impartiality into question and give rise to the perception of a conflict of loyalties.
Irrespective of the outcome of the inquiry, most public inquiries and/or demands for public inquiries, are also implicit admissions/confessions of failure, the admission/confession being that the other elements of the state – primarily the Legislature, Executive and Judiciary –have been unsuccessful in their roles. This is suggested by insufficient control and transparency within the government, insufficient scrutiny by or accountability to Parliament and/or a sense of general injustice prevailing after attempts to litigate certain matters in the courts. Of course, there are certain distinct issues where inquiries are fitting, applicable and do work which could not have been done otherwise – The Cullen Inquiry being a good example. But if such elements of the state had executed their individual constitutional functions, the fundamental concerns of transparency and accountability – most of which are an object of such inquiries, or demands for them – could be addressed more unswervingly, effectively and instantaneously.
In view of how frail non-statutory inquiries are, the report was way better than what the public expected. It made out a compelling case of corruption throughout and across different branches/departments and proved how the Met was motivated by reputational imperatives. The well detailed and evaluated evidence makes it difficult to dislodge that the actions of the Met fulfil the criteria of the definition. If such a finding is to be debunked – to whatever extent it may be – one has to challenge the facts which base the finding or question the definition itself – which is perhaps impossible and out of the question given how comprehensively sourced the report is. Despite Sir Ian Blair’s (former Metropolitan Police Commissioner) denial of the alleged ‘institutional corruption’ and the Metropolitan Police statement – which had no mention of ‘institutional corruption’ –following the release of the report which claimed that the “Met of today is not the Met of 34 years ago”, a far more precise response is required to this substantially made-out charge, otherwise there will be a risk of institutional denial. However, despite the evidence and explanations of successive investigations and prosecutions failing, we are no nearer to knowing who murdered Daniel Morgan, and why. The case remains open.
A Fortiori 