Andreas Whittam Smith: If we don't act now, worse will follow

I am going to describe how action should be swiftly taken to curb Rupert Murdoch and his newspapers now that supposition and dark suspicion have become proven fact. News International, a large and powerful media organisation, Mr Murdoch's company, systematically invades people's privacy through phone hacking, corrupts the police by making large payments to individual officers, and compromises fair trials as a result of publishing reports that are likely to prejudice juries.

It operates without restraint and has no sense of right or wrong. It doesn't yet represent the same threat to British society as the Italian mafia does to Italy. But there are sufficient similarities to tell us that if we don't act now, worse will follow. For unchecked, News International's illegal practices would grow ever more far reaching, more police officers would be suborned, more trials ruined. And more politicians would be bent to Mr Murdoch's will. For, just as Italian politicians have courted the mafia, so British politicians have fawned over News International executives and editors. David Cameron, the Prime Minister, even brought a former editor into Downing Street who, it is now alleged, authorised the payments of bribes to the police. Well meaning though large advertisers may be in withdrawing their business from the News of the World, that won't curb Mr Murdoch. And although I have willingly signed up to the campaign that calls for a public inquiry ( hackinginquiry.org/), that would only be a staging post. In fact, the mechanisms to bring the directors of News International to book already exist. They are part of the law of the land.

The most important step is to make use of the powers contained in what is known as The Regulation of Investigatory Powers Act 2000. It was under Section 1 of this Act that the News of the World phone hackers were convicted and imprisoned. So far as the directors and executives of News International in their personal capacities are concerned, the crucial passage in the legislation comes towards the end of the Act. It is Section 79.

Forgive me for now penetrating deeply into the thickets of the law, but eventually, in the growing scandal of the News of the World's behaviour, everything will turn on Section 79. I hope charges will be brought under this section. It is entitled the "Criminal liability of directors etc". (I like the "etc"). It states that "Where an offence under any provision of this Act... is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, he (as well as the body corporate) shall be guilty of that offence and liable to be proceeded against and punished accordingly."

To see how Section 79 might work, start with the smaller fry, say Rebekah Brooks, the chief executive of News International. In a letter to staff published earlier this week, Ms Brooks, following the revelations that her reporters had hacked into the mobile phone of the murdered schoolgirl, Milly Dowler, when she was editor of the News of the World, attempted to exculpate herself. "We were all appalled and shocked when we heard about these allegations yesterday... At the moment we only know what we have read... I hope that you all realise it is inconceivable that I knew or worse, sanctioned these appalling allegations." In other words, Ms Brooks is claiming that she was unaware of the criminal invasion of privacy that had the effect of vainly raising the hopes of the parents that their daughter was still alive and that at the same impeded the police operation.

But go back to the Act. To avoid criminal proceedings, having not initiated or consented to the Dowler phone hacking won't do as a defence because there are other tests. Let us go to these. Connived? That would require an examination of how Ms Brooks habitually conducted herself as editor. "Connived", for instance, might be warmly congratulating reporters who produced stories that could only have been acquired illegally. But perhaps there was no connivance. Even so, Ms Brooks would not be home safe and dry. "Where an offence is... attributable to any neglect", states the Act.

This is the catch-all section of the Act. If you have presided over an organisation that has conducted criminal activities, either you gave the orders, or you gave permission, or you connived, but if you did none of these things, then you were neglectful. That is the trap, that is the box in which the directors of News International will find themselves. It is also the bit that Ms Brooks would find hard to understand. For, as she indicated earlier this week, she isn't going to resign."I am aware of the speculation about my position. Therefore it is important you all know that as chief executive, I am determined to lead the company to ensure we do the right thing and resolve these serious issues." This comes straight out of the dishonorable, cowardly, defensive, mind-your-back school of management that says that if I didn't know, I cannot be blamed. It doesn't recognise neglect. Instead it substitutes the self-serving, conceited thesis that "only I, who was at the helm during the disaster, can steer us to safety".

But what about Mr Murdoch? Would he be touched by Section 79? Only a lawyer could give an authoritative opinion. But I note these words in the Act. It bears on a director, manager, secretary or other similar officer of the body corporate, or "any person who was purporting to act in any such capacity" (my italics).

Whether Mr Murdoch falls under this rubric would be for a court to decide. But I have no doubt that Mr Murdoch does act as if he were a director or a manager. For although technically News International is part of a public company, for all intents and purposes it is conducted as if it were a court with Mr Murdoch as its sovereign. One reason why Ms Brooks isn't resigning is that she is a courtier. Courtiers don't resign. They stay or go at the monarch's pleasure. And while it may be difficult for company lawyers to understand a monarchical organisation, judges should do so – for they are, after all, "Her Majesty's Judges".

Rupert Murdoch has owned the News of the World for nearly 42 years. When he arrived in England as an unknown Australian newspaper proprietor to bid for the News of the World in 1969 in opposition to Robert Maxwell, I went to meet him at Heathrow Airport and travelled into town with him. I was a young financial journalist. When we got to the Savoy Hotel, he went up to reception to sign in. As soon as he was given his room number, he demanded that he be given a different room. I asked him why. You see, he said, I fear that my room will have been bugged.

Even then phone hacking and electronic eavesdropping obsessed him. Now they will be his undoing and Section 79 could be his final reckoning.

a.whittamsmith@independent.co.uk