‘A Most Extraordinary Case’
Malcolm Kennedy says his telephones, post and e-mail are being interfered with. His attempts to seek answers have left him in a bureaucratic maze.
Background
‘A most extraordinary case’ said Michael Mansfield QC, describing the events at Hammersmith Police Station on the night of December 23/24 1990. Two men – Patrick Quinn, and, later, Malcolm Kennedy – were arrested and put in the same police cell for drunkenness, and Quinn was later found dead with severe injuries. Kennedy, Kennedy, described in court as having no previous convictions, maintained that Quinn had been killed by the police, and that he was framed for the killing.
In September 1991, Malcolm Kennedy was sentenced at the Old Bailey to life imprisonment for Quinn’s murder, despite evidence that crucial police logs had gone missing, and conflicting accounts from police officers of events on the night.
A Police Complaints Authority investigation in 1992 ‘was hampered by missing prosecution papers, police notebooks, and officers declining to be interviewed…’.(1) In April 1992 a World in Action programme on the case produced new documentary evidence and witnesses which appeared to contradict the police version of events on the night. This new evidence was heard at an appeal, in February 1993, at which Kennedy’s conviction was overturned and a retrial ordered. In June 1993, Kennedy was granted bail pending the retrial.
The first retrial in September 1993 was abandoned after further new documentary evidence was produced by the police. This was a computer-aided dispatch print-out which logged timings of police messages on the night of December 23/24 1990, and seemed to confirm the police version of movements and timings; it had apparently been missing since December 1990. After a second retrial in May 1994 Kennedy was convicted of manslaughter and sentenced to nine years imprisonment. During this trial, Kennedy’s barrister, Michael Mansfield QC, said there had been a police cover up:
‘every category of police document in the case had, since 1990, been suppressed, gone missing, or been forged’ [and police officers at Hammersmith had] ‘closed ranks, closed doors, closed files’.(2) .
A key police officer in the case, who was on duty at Hammersmith Police Station on the night in question, and was alleged in court to have had a history of violence was unable to testify at the retrial because he had been diagnosed as mentally ill and unable to give evidence.
Alarm bells
Serious concerns were immediately expressed about the safety of Kennedy’s conviction, and within a few days an Early Day Motion (EDM) was tabled by Chris Mullin MP (May 10 1994, No. 1207)
‘This House notes with concern the conviction of Malcolm Kennedy for the manslaughter of Patrick Quinn…….believes that the conviction of Mr Kennedy is unsafe and invites the Appeal Court to rule accordingly.’
The EDM was signed by 65 MPs.
Later that month Chris Mullin in a Parliamentary Question to the Attorney General, Sir Nicholas Lyell, about the failure of the CPS to call the key police officer as a witness at Kennedy’s trial, asked ‘Is the Attorney General aware that there is a widespread feeling…….that a serious miscarriage of justice has occurred in this case?’
And in December 1994 the Hackney Community Defence Association produced a booklet entitled Who Killed Patrick Quinn? The Framing of Malcolm Kennedy.
Kennedy was released on parole in June 1996. A further appeal was dismissed. Previously a restaurant owner, he was left with nothing and initially found accommodation with a housing association for ex-prisoners.
In August 1998, Granada TV paid out a reported £2 million in compensation and legal costs in a libel settlement, and apologised in the High Court to the three police officers which the April 1992 World in Action programme had claimed were involved in the cover-up of Quinn’s death.
What Kennedy says is happening
Today Malcolm Kennedy, now 53, has his own business in Hackney, North London, doing small moves and van hire. Except he says he is prevented from doing so because of constant interference with his communications. His main complaint is that incoming business calls from his local area – on which his business is totally reliant – are being blocked to a greater or lesser extent. The degree to which this happens varies, Kennedy says, and until last year he had enough work getting through to get by. But in 1999, he noticed a decrease in his incoming calls, and reckoned 75% were being cut; more recently things have deteriorated further, and, he says, only perhaps 5% are getting through, few of these being genuine enquiries, leading to around one job a day, despite an increase in advertising and competitive prices. He also reports difficulties making out-going calls, saying he is frequently told the number has not been recognised.
How does Kennedy know this? When he first set up a similar business in the same area in 1997 he was getting plenty of work from just one small advertisement, for a ‘man with a van’. He later became aware that calls were not coming in, and now, with five advertisements in various local directories, two web-sites and three different phone numbers, (two land lines – BT and Cable London – and a mobile) and a buoyant economy Kennedy says he gets virtually no serious enquiries, (during the last month (April-May 2000) he reports only one or two genuine enquiries per day) the majority of calls being what he describes as ‘spoof’ calls – mainly false enquiries.
For example, Kennedy reports getting veiled threats, particularly concerning health care and health insurance; and many calls messing him around in connection with van hire (eg cancelled at short notice), and the phone being hung up on him. On one occasion, two years ago, he says part of a previous conversation was played back to him when he answered the phone.
Kennedy’s main complaint of call barring is difficult to prove. He says people trying to phone him report getting a variety of signals including a fax tone; engaged tone; an electronic tone; messages saying the number is no longer available, has not been recognised, check and redial, or there is a fault and try again later. He has himself tested his line recently by calling his number from various other places, and reports getting all the above signals. Customers have told him they have had difficulty getting through to his number.
Last year Kennedy says he worked from a mobile phone registered under a different name, and put an advertisement in the Islington Gazette. He says that this new phone number and small ad brought him consistent work – one or two jobs a day – for a couple of weeks – then the calls dried up completely. He has also used Talking Pages, which gives out the details of local businesses to inquirers. Kennedy says he knows that between December 1999 and March 2000 his details were given out at least 130 times by Talking Pages; but, despite having a dedicated phone line for TP, he only received four jobs and some spoof calls over a four month period. Kennedy’s flat and van have both, he says, been entered, with no sign of a break-in; his flat several times when he was out, when things have been disturbed but nothing of value taken. On one occasion he says three £20 notes were exchanged for £10 notes. His van was also entered, and a large ashtray removed from the dashboard, the van left locked up again. He says e-mails that he knows have been sent are not getting through, and both outgoing and incoming post are frequently delayed in such a way as to cause much inconvenience, arrives with two frankings for different days, or doesn’t arrive at all.
Why?
Kennedy is convinced that there is a connection with his high-profile criminal case, during which his defence said Kennedy was framed by the police and that the police on duty that night in Hammersmith police station were involved with Quinn’s death; or, at least, knew what happened and covered up. Kennedy speculates that Special Branch and/or MI5 may be involved, and suspects that an interception warrant, established during his case, is being constantly renewed. He believes the intention is to damage his business and keep him impoverished.
There is no hard evidence for Kennedy’s claims. Why do calls from myself and others get through? Kennedy reckons that these are not barred because they are from outside the area, or from cleared numbers. Enquiries suggest that the type of interference said to be occurring is probably technically feasible – but pretty much impossible to prove.
Attempts to get an explanation
In his attempts to seek a cessation of the interference and disruption to his communications, Kennedy has written to, in his words, ‘everyone I can’. He has approached all the relevant authorities including his telephone service provider, Cable London, the telecommunications regulatory body Oftel, his Member of Parliament Brian Sedgemore, the Home Secretary Jack Straw, the Metropolitan Police and the Interception of Communications Tribunal. His enquiries have taken him into a bureaucratic wilderness, and provided no satisfactory answers.
Cable London say they have carried out numerous investigations and found no technical fault with the service. A letter from Cable London to Kennedy in June 1999 says:
‘Over the last two months Cable London has carried out 8 separate investigations into the reported problems with your telephone service. On each occasion we have been unable to find any fault within our network, or from any interconnected network, relating to the service problems reported’.
By August 1999, Cable London were suggesting Kennedy ‘subscribe to another operator such as British Telecom’!
After sending details of his complaints to Oftel, they replied in July 1999, saying ‘We have considered all the papers related to your case, and are unable to assist you further.’
Kennedy wrote to the Home Secretary, Jack Straw, three times in June/July 1999. The replies, from the Intelligence and Security Liaison Unit of the Home Office Organised and International Crime Directorate (12 August 1999) and from the Home Secretary’s Advisory Board, Metropolitan Police Committee (30 September 1999) referred him either to the Police Complaints Authority, which supervises complaints against the police, or to the Interception of Communications Tribunal, which can investigate questions relating to interception authorised by a Secretary of State.
Kennedy had previously taken his complaints to both the police and the ICT, receiving a letter from a Detective Inspector of the Organised Crime Group of the Metropolitan Police (9 July 1999) which stated that after making extensive enquiries into the matter: ‘it transpires that there is no evidence of any illegal activity to Mr Kennedy’s detriment, neither is there any evidence of physical or technical malfunction of his telephone system’; and from the Interception of Communications Tribunal (2 November 1998) stating that they were satisfied ‘that there has been no contravention of Sections 2 to 5 of the Interception of Communications Act 1985 in relation to a relevant warrant or relevant certificate’. [Sections 2 to 5 of the IOCA 1985 deal with the issuing, renewal and duration of interception warrants]
A further letter from the Tribunal (6 April 1999) states that ‘The Interception of Communications Act 1985 does not allow for the barring of calls as you describe [Kennedy’s main complaint] nor indeed the diverting or discontinuation of any call(s). Similarly it does not allow the prevention or re-directing of postal communications.’
Kennedy expressed concern to his MP, Brian Sedgemore, about the inability of the ICT to deal with his complaint, and Sedgemore wrote to the Home Secretary on December 1 1998 expressing these concerns about the Tribunal and that, depending on the basis on which they formed their decision either ‘clearly changes in their procedures are needed’ (if they have been unable to find out what has been going on) or ‘changes in the law may be needed for the sake of transparency and justice’ (if there was a warrant, but they never say whether or not such a warrant exists) .
Straw’s reply to Sedgemore, (18 December 1998) states:
‘it is a clear principle of law and practice that people are never told whether or not their communications have been intercepted under warrant…the purpose is to safeguard operational practices and techniques from disclosures which might undermine their effectiveness. Of course, it is possible to intercept a telephone without the authority of a warrant. As I have explained this will generally be unlawful and anyone who suspects that his or her telephone calls are being unlawfully intercepted, as Mr Kennedy maintains is the case, should report the matter to the police.’
Interception of Communications – scrutiny inadequate
The Interception of Communications Act 1985 establishes the grounds for lawful interception of communications and sets up the Interception of Communications Tribunal. Under the Act, the interception of a person’s mail or telephone calls must be authorised by the issue of a warrant by a Secretary of State. Interception can only be authorised if considered necessary in the interests of national security, for the prevention or detection of serious crime, or to safeguard the economic well-being of the United Kingdom.
This process should be kept under review by the Interception of the Communications Commissioner, currently Lord Justice Swinton Thomas, previously Lord Nolan. The problem of properly scrutinising so many warrants (1646 phone tapping warrants in 1998) has been raised by Francis Wheen: ‘This is no mean feat for a part-timer, especially since each warrant may cover any number of phone-taps on “associates” of the subject.'(3)
The Tribunal can only investigate questions relating to interception authorised by a Secretary of State; specifically, whether there was a warrant and, if so, whether it was properly issued. If it finds a warrant to have been improperly issued, the Tribunal can quash it, order destruction of intercepted material, and direct the minister to pay compensation. These powers have not been used as the Tribunal has never found a breach of the Act.
If the Tribunal finds a warrant to have been properly authorised, or that no interception warrant exists, the complainant will be told only that there has been no breach of the Act; it is established policy neither to confirm nor deny whether the Secretary of State has granted an interception warrant in any particular case.
Unauthorised interception is excluded altogether from the Tribunal’s remit; section 1 of IOCA makes it a criminal offence to intercept communications in the course of transmission without the authority of a warrant issued by a Secretary of State, and therefore a matter for the police. This is hardly satisfactory because, as Laurence Lustgarten and Ian Leigh state, the police may, of course, be the perpetrators.(4) The inadequacy is reiterated by Lustgarten and Leigh at p. 64:
‘Unauthorised interception is, by virtue of Section 1 of the 1985 Act, a criminal offence, but there are no special powers or procedures for dealing with it‘ (emphasis added).
Kafka-esque
This point was taken up by solicitor Tony Murphy, of Bindman and Partners, who has been dealing with Kennedy’s claims of telecommunication disruption and interception. Murphy says the ICT is ineffective and in particular is unable to deal with complaints such as Kennedy’s. He says there should be some means by which people in Kennedy’s position are able to seek an independent investigation/explanation:
‘The situation in which Malcolm Kennedy finds himself is nothing short of Kafka-esque. The current system appears not to allow for the possibility that the police or security services can act improperly in intercepting communications. This is unacceptable and represents a further indictment on the lack of independent investigation of police complaints.’
In October 2000 the Regulation of Investigatory Powers Bill is expected to become law. The RIP Bill broadens the Interception of Communications Act 1985 to include, for example, the use of bugs and interception on private telecommunication systems, and includes controversial new provisions to allow the tapping of e-mails and access to encrypted data. It will repeal the Interception of Communications Act 1985 and establishes a tribunal which will take the place of both the Interception of Communications Tribunal and the Security Service Tribunal (set up under the Security Service Act 1989. This Act is not repealed). This new tribunal will consider complaints concerning the interception of communications; conduct by or on behalf of any of the intelligence services; entry on or interference with property or interference with wireless telegraphy; and the giving of a notice or any disclosure or use of a key to ‘protected information’ (data protected by the user eg by passwords or encryption) (RIP Bill Section 56). As before, complainants will only be told whether or not the Act has been breached.
The events of the night of December 23/24 1990 destroyed or damaged the lives of several people. I have met Malcolm Kennedy. He does not appear to be embittered, despite 10 years of, in his own words, ‘trauma and harassment’, and says he does not seek to pursue his previous case anymore; he asks only to be allowed to rebuild his life and put the past behind him.
Notes
- Independent September 10 1992
- Independent February 26 1994
- Wheen’s World, Guardian, 3 May 2000
- In From the Cold: National Security and Parliamentary Democracy, Oxford: Oxford University Press, 1994, p.61