LEVESON MADE EASIER
In his opening address to the Leveson Inquiry today - 14 November 2011 - Robert Jay, QC, displayed a forensic mastery of his brief which ought to have some potential witnesses quaking in their boots. His performance showed he was in a different league from the keen but sometimes meandering MPs on the select committees. He is Don Bradman to their knockabout village cricket teams.
But at 24,478 words, with few of them wasted, the speech is the length of a novella.
I’ve reduced it slightly, to 22,450 words. I stick faithfully to his text and chronology but have put in subheads and some bold to give it a clearer structure on the written page. I hope that helps. The points he makes set out the roadmap for the months ahead and, if you’re interested in the big picture, it’s worth taking some time over it. As of this date, I think it is the best overall summary. Here it is...
REASON FOR THE LEVESON INQUIRY
The immediate trigger to the setting up of this Inquiry, the tipping-point, was the revelation that Milly Dowler’s voicemail was accessed, and voicemails deleted, causing family and friends to cling to the hope that she might still be alive. Although the individual or individuals who deleted Milly’s voicemail messages back in 2002 might not have realised at the time what the consequences might be, in terms of raising false hopes, public opinion was rightly sickened by the callousness and cynicism of the perpetrators. Within 2 days of these revelations the Prime Minister announced to Parliament that an inquiry would be set up.
This Inquiry is unprecedentedly demanding in a number of respects.
First, the range of breadth of the Terms of Reference: an inquiry into the culture, practices and ethics of the press. From the good to the frankly criminal, with unethical practices somewhere in between.
Secondly, the scale of public expectations.
Thirdly, the existence of the ongoing Police investigation, and the possibility of criminal prosecutions, means that a fully detailed, forensic examination cannot take place on a concurrent basis without bearing in mind the public interest in the proper conduct of the Police work.
Two points: First, this Inquiry cannot compel witnesses to answer questions which might incriminate themselves. Second, this cart before the horse issue does not mean that the Inquiry will refrain from entering areas which are also the subject-matter of the police investigation.
FEAR OF THE PRESS
Fourth point, we are investigating the Press root and branch, and we are therefore investigating an extraordinarily powerful and articulate range of institutions which have considerable control over the way in which these proceedings are reported, commented on and analysed. This power of the Press may be one reason why politicians, at least arguably, have not been overly keen to take steps to call it into question, through fear that by doing so the Press would withdraw support for those politicians or subject them to close personal scrutiny. If that analysis is right, and I was careful to say ‘may’, it might also be said that this Inquiry should have the self-same concerns; and conversely the public may fear that this Inquiry might pull its punches for the self-same reasons.
I am however able to nip any such concerns in the bud. In July the setting up of this Inquiry enjoyed cross-party support, as well as the support of the devolved administrations. The territorial scope of the Inquiry is not limited to England and Wales. Under s.3 of the Constitutional Reform Act 2005, government must respect the independence of the judiciary. Not merely is the judiciary independent of government, it is free from the sort of pressures which are capable of being applied by the Press on government and politicians. And the same applies to the independent Bar. The free Press will therefore report the proceedings of this Inquiry as they see fit, subject to pre-existing legal constraints, and the Inquiry will continue to discharge its public functions regardless of any cross-fire.
PROTECTION FOR WHISTLEBLOWERS
But there are two further issues which may cast a shadow over the business of this Inquiry.
First, the Inquiry is concerned that journalists may be fearful of speaking out against their employers for fear of their jobs and careers. The Inquiry will no doubt receive evidence of good press culture, practices and ethics, and certainly should not assume that this evidence is unreliable, but at the same time the Inquiry needs to hear all possible sides of the story. Those who have witnessed wrongdoing are encouraged to summon the moral courage to speak out. For its part, the Inquiry is willing to consider granting protective measures for whistleblowers with justified concerns.
Secondly, the Press, both within this Inquiry room and outside it, possess highly articulate voices in favour of its interests. There is nothing wrong in that save that the Inquiry must be vigilant to ensure that the loud voice of the Press does not drown out the voices of other interested parties.
Thus far, I have set out the challenges, and the problems, but I should not be interpreted as suggesting that they are insurmountable.
In short, we will call and probe the evidence in seeking out the truth. We are looking to establish both a sufficient and balanced narrative of the culture, practices and ethics of the Press as the springboard for helping to devise practical and workable solutions which are proportionate to any problem that has been identified, and which are likely to enjoy the confidence of the public. These solutions will not necessarily have been the solutions which the Press themselves would have devised, had they been asked to devise them, but they will have to be workable in the real world, and will need to reflect the technical realities of the industry both today and in the immediate future – most particularly the challenges posed by the Internet.
PRACTICES AND BROKEN SYSTEMS
We are looking at practices which may be widespread rather than isolated and sporadic. Practices which may be widespread, insofar as they are bad practices, may well flow from systems which are broken and/or from attitudes and mores which are dysfunctional. The more we may see patterns of behaviour and practices which are generic, and the more widespread they are, the more it may be possible to infer the existence of broken systems, dysfunctional attitudes and mores; and, overall, the existence of a culture which tends to explain why these problems are occurring in the first place. In most institutions cultural problems of this nature will usually emanate from high up within the organisation, but this will not always be the case...Sometimes, the existence of a culture derives from the operation of more subtle and complex forces: from historical trends; from what is condoned and not stamped upon, leading to insidious evolution and perpetuation; from complacency leading to arrogance and purblindness.
...If, in relation to a particular press institution, you were to reach the provisional conclusion that a practice or a range of practices were widespread, thematic or even endemic, it might not be too difficult to draw the inference that this practice or these practices stemmed from a culture which promoted or permitted their occurrence. Yet it might not matter whether the culture actively promoted the practice on the one hand or merely failed to prevent the practice occurring on the other – on either version, we have a cultural problem. We have systems which have failed and we have an organisational ethos which has contributed to the existence of illegal and/or unethical practices.
If one sees evidence of institutional attempts to cover up past misdemeanors, it may be possible to draw the inference from such evidence that these were systemic, and the cover-up itself may be a different manifestation of the same cultural problem.
...it is obvious that specific illegal or clearly unethical conduct could, indeed, exemplify culture, practices and ethics either in a particular newsroom or more widely...
Increased pressure on newsrooms, with reducing staff and tight financial constraints, the impact of 24/7 reporting and the immediate availability of news on the internet, the use of casual or freelance staff and the pressure whether expressly thrust upon them or impliedly felt by them may all constitute important elements of the wider picture.
There may well be different cultures in different newspaper groups or in different sections of the Press. Even if the Inquiry were to conclude that a culture existed in a particular newspaper, that would not mean that everyone working within that newspaper at the time was inevitably tarnished by it. The dangers of stereotyping are obvious, and will be avoided. Although the Inquiry will be testing the proposition that there may be cultural differences between tabloid, middle-market and broadsheet newspapers, it will not be doing so in the light of any preconceived judgments about their respective value systems. We start from a clean slate.
There, journalists feel that they are being tarred with the same brush as the national press so confidence in them is being affected. Their focus is very much on their local communities whom they have to face day to day and who would react very adversely (as they sometimes do when the national press arrives) to breaches of ethical standards.
Conduct may be unethical because it is illegal; very often, it is illegal because it is unethical. Conduct may also be unethical not because it is illegal but because it violates an important human right or because it violates a code of practice designed to regulate behaviour. Finally, and more controversially, conduct may be unethical because most right-thinking people would hold that it was wrong even if it was neither illegal or in violation of a relevant human right or current code of practice. This may well be a somewhat subjective area, but if there is a sufficient moral consensus in support of change the right course may well be to consider amendments to the relevant code of practice.
PART 1 INQUIRY MODULES
Module 1 concerns itself with the relationship between the Press and the public; Module 2 with the relationship between the Press and the Police; Module 3 with the relationship between the Press and politicians; Module 4, what changes should be made to the regulatory system in order to address the findings of modules 1-3.
PRESS AND DEMOCRACY
One constant theme, though, may be this: the alleged subterranean influences operated by the Press on the democratic process, but without full democratic accountability.
TWO COMPETING NARRATIVES ARISING FROM LEVESON SEMINARS IN OCTOBER
1. The Press as a force for good exposing ‘hypocrisy’
According to the first of these, the Press is generally speaking a force for great public good. It educates, it entertains, it holds the powerful, including government to account. Although the Press may be working under considerable commercial pressure, the importance of this should not be over-stated. These pressures have always existed in one form or another. Most journalists are decent people, and the far greater pressure is to produce the best possible story to the highest personal and professional standards. The public, on this narrative, have a real interest in the affairs of celebrity, particularly where there is an apparent clash between a confected public persona and private transgression. ‘Hypocrisy’ is the noun which is often deployed in this context, and the role of the Press is to hunt it down and to expose it. Thus, on this analysis, private transgression becomes a matter for legitimate public comment. The exponents of this narrative would say that the Press is already hidebound by an oppressive series of legal constraints which have a chilling effect on legitimate activity. These legal constraints range from the existing panoply of the criminal law to draconian libel laws to the manufacture of a burgeoning and oppressive privacy law by High Court Judges who are not democratically accountable and who apply their own highly subjective and relativistic standards. Well, one High Court Judge receives particular opprobrium. Further, the Press complain that the system of Conditional Fee agreements exploited by unscrupulous lawyers enures to their disadvantage because the cost of litigation is so punishingly high that often they have no choice but to settle even defensible cases. Finally, on this narrative the Press may well accept that activities such as phone hacking went beyond one rogue reporter at NoW, although they would be keen to exclude their own titles from these activities. Whatever the position here, the Augean stables have already been cleaned, this happened some time ago now, and there is no further dung to be found.
2. The Press itself is hypocritical
The contrary narrative works along these lines. The Press in general and the tabloid Press in particular ruthlessly exploit unscrupulous methods in pursuit of the story which will boost the circulation figures of their particular title. Very often, ‘the story’ is pre-ordained by the narrative the journalist instinctively knows the editor will wish to put out, and the facts are therefore tailored to meet that narrative. By the same token, the editor has an instinctive understanding of what his or her proprietor might want, even if there is no direct interference from above. The ‘story’, on this narrative, will often strike a chord with the prejudices of the reader, because the whole objective after all is to increase circulation and revenues in an increasingly competitive and unprofitable commercial environment.
Those advancing this version of Press culture and ethics would say that journalists will not shrink from deploying underhand methods, if necessary illegal methods, provided that they believe that they can get away with it. The power of the Press, and its influence over people’s lives, is such that it believes itself to be almost above the law. Moreover, in deciding whether or not the public interest might justify the prima facie invasion of personal privacy, editors are entirely parti pris to the exercise and are guilty of the self-same subjective and relativistic approach which they condemn in High Court Judges. Put simply, the ‘public interest’ is very often deployed as some form of trump card, and it is too loosely defined. It ends up with the Press delving into the affairs of those who are celebrities and those who are not in a way which unethically penetrates a domain which ought to remain private. The Press say that they are holding hypocritical people to account, but those doing the holding are themselves unaccountable and hypocritical.
The proponents of this narrative would also point to the recent revelations of surveillance activities carried out by a private investigator on the instructions of News International. These revelations would suggest that the stables are not necessarily clean of dung.
NEITHER NARRATIVE MAY BE WHOLLY TRUE
(Jay said Leveson) may decide that neither (narrative) is true, because the truth lies somewhere in between...More interestingly, you may decide that both narratives are true, in the sense that everything depends on one’s perspective.
I am going to talk about bad practices, some of which are known in the trade as the ‘dark arts’, but it is right that I should start with the good.
Most of the content of the Press on most days is unobjectionable, and some of it is of the highest quality. It is not for this Inquiry to pronounce from high on anyone’s taste in reading matter or entertainment. I recognise that the media cater to a whole range of different world views - that they are perfectly entitled to be opinionated, irreverent, sceptical, credulous, facetious, trivial, obsessive, and to encourage others to think the same - and to express themselves in a style appropriate to their subject matter...many journalists who write pieces are able to encapsulate often complex ideas in short, pithy, entertaining and punchy stories which retain the interest of the reader. The ability to do this takes as much skill as the ability to write a good Leader in a broadsheet. Ultimately, the Press have an obligation to entertain, and they need to sell their product.
DISTORTION IN SCIENCE STORIES
Members of the scientific community may be providing the Inquiry with evidence along the lines that much real harm is done by certain sections of the Press who, it is said, do not always apply the scientific method to their reports or commentaries upon subjects of topical scientific interest. It could be said that reporting which is not evidence-based is ‘inaccurate’ within the meaning of the Editors Code.
There is a higher constitutional point in play, namely the importance of a free Press in a mature democracy. We cannot simply pay lip-service to this principle, even if a free Press is second-nature to the public life of the United Kingdom...The Press holds the powerful to account and is therefore an important curb on potential abuse of executive and corporate power. At its best, the Press espouses unpopular causes and gets to the bottom of scandals which would otherwise be left uninvestigated. It is essential in a functioning democracy that the Press be permitted to discharge these vital functions, and to that extent it is inevitable that not everybody will be happy with what they do all of the time.
GOOD PRESS CAMPAIGNS
The phone hacking story was the result of assiduous and tenacious reporting by the Guardian, at one stage in the face of a critical report by the PCC. The Thalidomide scandal was brought to the forefront of public concern by the similarly tenacious work of the Sunday Times, who purchased court documents for a considerable sum when the paper knew or ought to have known that they could only be used for the purposes of litigation between the then plaintiffs and the drug company. The MPs expenses scandal was exposed by the Daily Telegraph which as is well known paid for an electronic device in circumstances where it might be said that the underlying data were stolen.
SUNDAY TIMES EDITOR BACKS BLAGGING
Another extremely cogent example of good journalistic practice has been provided by the editor of the Sunday Times in an article he wrote on 17th July this year, ‘Why Investigative Journalism is a force for Good’. Mr Witherow reminds us that in 1984 a Sunday Times journalist, Mr Swain, used old-fashioned blagging techniques to connect Gaddafi’s terrorist paymaster with Mr Abbasi, another Libyan backed terrorist operating out of Doncaster. The journalist blagged that information from a BT operator having received details of a telephone number. He then visited Mr Abbasi who eventually confirmed that the National Union of Mineworkers were seeking financial support from Gaddafi. I summarise the story, and for reasons of time omit some necessary detail, but what is interesting here is that if Mr Swain’s underhand measures might prima facie have constituted an offence under the DPA 1984, and that would have depended on a number of factors, not least on whether the Act was in force at the relevant time, he would surely have had a cast iron public interest defence. If you read Mr Witherow’s article in full, it is clear that the journalist was not acting on a wing or a prayer, but had very good grounds to suspect that the Doncaster phone number was being used by a terrorist.
The Inquiry has received a large volume of evidence covering the good work of other sections of the Press in espousing good causes, rectifying wrongs, and investigating abuses of power.
And it is also true that in carrying out this essential work the Press is constrained by the law, in particular the civil law of defamation, privacy and the confines of the Reynolds fair comment in the public interest defence. Whether ‘privacy’ in particular is an effective safeguard is an issue we will need to address.
Much investigative journalism relies on covert methods, if not a measure of deception. Very often, the end product can be justified in the public interest; but speaking more generally what can be justified in the public interest, and how it can be justified, lies at the very epicentre of this inquiry...I would like to cite from the ST article I have mentioned:-
the exposé of how Scargill was seeking financial support from Gaddafi caused an uproar and was a public relations disaster from which the Marxist leader of the NUM never recovered. No two investigations are ever the same, but Swain's story bore certain hallmarks. To get to the truth he had to lie and deceive. He had to access confidential information by blagging: by pretending to be someone else and extracting the details from a hapless victim. If he had not done so, the story might never have appeared and the public would have been none the wiser. In other words, the ends justified the means. That is the fine line that every editor has to walk when judging what methods to use to gather information. The absolute test must be that the story is in the public interest – that people have the right to know because they are being deceived. It is a subjective test and in the end the public and the courts decide whether the paper has made the right call. The journalists' code describes this public interest as exposing ‘a serious misdemeanour’ and ‘preventing the public from being misled by some statement or action of an individual or organisation’. The law on data protection also allows journalists to access private information if it is in the public interest, and this is a key plank in any defence on significant stories. For the Sunday Times, the role of investigative journalism is to hold officialdom to account, at whatever risk. Yes, we bend the rules, engage in subterfuge, impersonate people and show the ‘rat cunning' that Nick Tomalin, a great Sunday Times reporter who died for his trade, said was essential in every successful journalist. Without these techniques, the powerful would be protected. We would not tolerate 'fishing expeditions' in the hope of finding out information...’
‘FISHING’ FOR INFO BY COVERT MEANS
...and then Mr Witherow proceeds to discuss the NoW phone hacking issue.
The concept of a ‘fishing expedition’ is no doubt a useful one, and can be expanded on. Using subterfuge simply on the off-chance of discovering some wrong-doing is not, borrowing directly from phraseology used by the Press Complaints Commission, a sufficient justification for the use of these methods; there should be reasonable grounds for the inquiry, including an evidence base for those grounds. The time for assessing whether these reasonable grounds exist is before the methods are used, not retrospectively.
THE ‘DARK ARTS’
First, electronic surveillance or intrusion: the interception of communications, covert listening devices, cine cameras hidden in wardrobes, bugged telephones in private apartments, cameras hidden behind two-way mirrors, to the more mundane example of the use of telephoto lenses.
Secondly, stealing information to gain access to personal data, from rifling through dustbins (the patois for this is ‘binnology’) to more prosaic cases of stealing personal dairies or other forms of hard data.
Thirdly, old-fashioned, less technologically-based modes of intrusion. Here, I have in mind reporters and photographers hidden in bushes, paparazzi overstepping the bounds of acceptable behaviour, and some of the examples given in Peter Burden’s book, Fake Sheikhs and Royal Trappings, in particular the Bob and Sue Firth story at pages 105-118. The NoW reporter at the centre of that story was the same NoW reporter who was at the centre of Mr Mosley’s privacy action against NI tried by Eady J in 2008. He also happens to be the subject, but not the immediate recipient, of the famous ‘for Neville’ email referred to for example at paragraphs 412-416 of the report of the Culture Media and Sport Select Committee dated 9th February 2009. The recipient of the email was Mr Glenn Mulcaire. Neville Thurlbeck’s position, according to hearsay evidence set out in the Select Committee report, is that he has never seen that email, nor had any knowledge of it.
Fourthly, and more controversially, the Inquiry has evidence of agent provocateur techniques, and of course some of these are fully in the public domain. Confessions of a Fake Sheikh by Mr Mazher Mahmood, now of the ST, has been read by the Inquiry Team and we have also received a witness statement from him pursuant to a section 21 notice. It should be recorded that Mr Mahmood prides himself in these methods, and that his evidence was recently instrumental in bringing the Pakistani spot-fixing cricketers to justice. However, some would argue that his methods are questionable and that there are instances where the ends do not justify the means. We will need to explore this with Mr Mahmood when he gives his evidence.
Fourthly (?) payments made for stories, whether to sources, witnesses or private detectives. I should not be interpreted as saying that such payments will always, or even usually, be objectionable...But issues arise as to whether this enhances the risk that the information provided by the source may be untrue or malicious, or inherently more likely to amount to a breach of privacy. The Press may say that this situation is really no different from that which obtains in relation to police informants. The fact that police sources are often paid for valuable information is a fact of life, and it does not logically lead to a lower quality of intelligence. Furthermore, just as an experienced police officer will instinctively know whether a source can be trusted, the same principle applies to journalists. A police informant’s tip will need to be corroborated by other convergent evidence, as indeed will that provided by a journalist’s source.
PAYMENTS TO PRIVATE INVESTIGATORS/DETECTIVES
Payments to private investigators or detectives are capable of falling into a different category. Here, I would wish to define my terms. The Press, in common with many institutions including solicitors, use search agencies to locate pieces of information which are in the public domain. This practice raises no privacy issues.
Private investigators or detectives use different methods in order to seek out information and data which are not in the public domain. To be clear, a private investigator may well deploy perfectly proper standards and some are responsibly regulated. However, it would not be unfair to comment that the very nature of the job entails a risk that the personal privacy of the target may not be respected or, more seriously, that breaches of the law may be perpetrated in order to secure the information sought. Here, I am referring primarily to breaches of the Data Protection Act and what is commonly known as ‘blagging’: the impersonation of someone else in order to extract personal data from an official source, or an entity such as a mobile phone company.
OPERATION MOTORMAN/STEVE WHITTAMORE
A specific example of this is, of course, Operation Motorman and the work of the Information Commissioner in relation to the activities of a particular private investigator, Steve Whittamore. I will cover this topic in a moment. Aside from the question as to whether the journalists who tasked Mr Whittamore may have been implicated in his criminal activities, and this is a big question, the Inquiry will be particularly interested in the systems in place in individual print titles to handle and scrutinise the payment of invoices submitted by a private investigator.
EDITORS AND INVOICES
What is of keen interest to this Inquiry is how sources are paid, how their invoices are scrutinised internally, and most importantly the extent to which the modus operandi of a source may be known, or deduced, or ignored, by for example the editor whose ultimate responsibility it is to check the accuracy of a particular story, and to check that the means by which the information was obtained was lawful.
I have already made the point that phone hacking is just one form of subterfuge: morally, it may not be very different in quality from many others. Further, telephonic interception is not some new phenomenon. In the days when the mobile phone network operated on an analogue system, it was possible to purchase radio devices for less than £100 which enabled the operator to listen in on all mobile phone traffic within a particular radius. Presumably, this was precisely how the Prince of Wales’ phone was intercepted in 1989 and private conversations were recorded. This practice was illegal under the Interception of Communications Act 1985 without a licence from the Secretary of State, and in the sort of context I have mentioned could not be justified in the public interest. Since the late 1990s, all I would wish to say at this stage is it has become more difficult and certainly more expensive to intercept digital communications.
My last category of improper, or arguably improper, newsgathering methods is a catch-all one, and here the concern is as much the end-product published as the methodologies deployed. Next week the Inquiry will be receiving a considerable body of evidence from a range of individuals who say that they are the victims of unfair, oppressive and unethical press practices. Included within this evidence are victims of phone hacking, but at this juncture I am describing my catch-all category. The Inquiry will be hearing from individuals from a number of walks of life, some of whom are celebrities in the sense in which that term is ordinarily understood, others of whom clearly are not. Their evidence is disparate, which may be one of its virtues, but common themes are complaints of systematic breaches of privacy, of conduct amounting to harassment, and of unfair, sensationalist and inaccurate reporting.
PRIVATE LIVES, TITTLE TATTLE AND FISHING EXPEDITIONS
In relation to many, but not all, of the allegedly improper newsgathering methods I have been examining the subject matter of Press interest is the private lives of individuals. Some of these individuals may be public figures but others most certainly are not. Whether there is a distinction between those who court celebrity and those who would assiduously wish to avoid it is something that the Inquiry may wish to consider under the overall rubric of privacy. But the point I am making here is that the further away one moves from the heartland of investigative journalism properly so called, which is journalism in the public interest, to the hinterland of a form of journalism whose end-product some might say is really no more than a melange of gossip, tittle tattle, entertaining anecdote, and prurient inquiry, the more difficult it may be to justify intrusive journalistic methods and intrusive publications. Like it or not, one cannot get away from the subject-matter. The criminal trial in the phone hacking scandal was all about hacking into the voicemails of members of the Royal household. This was not investigative journalism in any recognisable sense of that term. It was a fishing expedition... that the fish, once caught, would be dished up as spicy morsels, as piquant insights into the private lives of the Royal family.
PUBLIC INTEREST JUSTIFICATIONS
The Inquiry will need to consider the range of public interest justifications which are advanced for the type of journalism I am describing; and in any event will need to consider whether, turning the tables round as it were, there is really a public imperative in doing more to address this particular problem. It might be argued in certain quarters that one of the by-products of a free and uncensored Press is collateral damage. The Press may say that there is always a public interest in exposing hypocrisy, and that there is a public interest in freedom of expression itself. Part of the duty of the Press is to entertain, otherwise its readership will desert. Even if, as one editor said at your seminars, the Hampstead liberal with his gilded lifestyle may not be interested in this sort of fare, that really is none of his business, and by extension it is none of the Inquiry’s business.
We keep returning to the main theme of this module of your Inquiry: what does the public interest mean, and who judges it?
DATE PROTECTION ACT, BLAGGING AND CORRUPTION
First enacted in 1984, but further more detailed statutory provisions came into force in 2000 following the enactment of the DPA 1998. The target of the DPA is not the Press or journalists. The primary purpose of the Act is to ensure that data controllers, those who hold the personal data of others, take sufficient steps to protect it.
Under s.55 of the DPA it is a criminal offence, subject to a number of listed defences, to obtain or disclose personal data or the information contained in personal data without the consent of the entity lawfully holding that data, namely the data controller. This includes the activity of ‘blagging’, the obtaining of personal information by deception. Hence, if Mr X were to pretend that he was a person with a legitimate interest in obtaining personal data from the data controller, and thereby persuade an employee of the data controller to give up that information, the essential ingredients of the offence would be made out.
In the real world, Mr X is usually a private investigator and the data controller concerned could be HMRC, the Driving and Vehicle Licensing Agency, a mobile phone company, an organ of the NHS, or those responsible for the police national computer.
Mr X may operate by deception, but there may also be a corrupt or unscrupulous employee within one of these organisations prepared to give up information to Mr X for reward or otherwise, but self-evidently without the agreement of his principal.
Mr X is prima facie guilty of an offence because he procures the obtaining of personal data or discloses it (on our facts, to a newspaper) without the consent of the data controller.
If there is evidence that a journalist has tasked Mr X to obtain confidential information for him, the journalist would also be guilty of an offence, either on the basis that he is an accessory at common law, or on the footing that he has procured such information through the agency of Mr X, knowing its provenance.
All of this is subject to the defence under s.55 of the Act that, and I quote, in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.
This sets out an objective test. It is not the individual’s belief which is relevant; the court must be satisfied to the appropriate standard that in the particular circumstances the act in question was justified as being in the public interest.
One of the reasons why I dwelt on the Gaddafi example in 1984 is that here we see evidence of a solid public interest justification. There was good evidence which linked a particular telephone number with terrorist activities. So there it was legitimate for the journalist to blag further information out of BT, and in the result critical additional pieces of the jigsaw emerged.
It is important to underscore the point that the journalist was not embarking on a fishing expedition: on the information already at his disposal, he could be reasonably optimistic of finding gold dust. Furthermore, the subject-matter of his investigation was serious and self-evidently of public concern.
The issue of criminal offences under the DPA is unlikely to excite much public interest, still less revulsion. The topic is somewhat recherché in nature, the DPA as a whole is a difficult statute to grasp, and the whole issue may be more to the taste of an intellectual property lawyer than the ordinary member of the public.
However, the issue is an immensely important one because all of us entrust our personal data, which includes confidential information, to data controllers and none of us would wish to see those confidences abused. This topic is only an arid one until it hits home.
Hence, the work of the Information Commissioner is important, and this Inquiry needs to examine what inferences and lessons may be drawn from Operation Motorman.
THE OPERATION MOTORMAN STORY
The story, in a nutshell, is as follows. I am summarising a number of sources: the IC’s two reports, What Price Privacy and What Price Privacy Now; the detailed evidence Mr Thomas has given to the Inquiry and which we will hear shortly; Ch 7 of Nick Davies’ book, Flat Earth News, the chapter entitled ‘the Dark Arts’; and other online materials.
Essentially, it is clear that the Information Commissioner’s office had long suspected the existence of an organised trade in confidential personal information, its suspicions being confirmed when, in late November 2002, the ICO attended a search under warrant of the premises of John Boyall, a Surrey-based private detective, which search was conducted by the Devon & Cornwall Police. The raid concerned the suspected misuse of data from the Police National Computer by former and serving police officers. Documents seized during the course of this raid were then linked to vehicle checks carried out within the DVLA by two officials.
In the words of the IC’s first report, ‘corruption was the stark conclusion’, and two investigations were subsequently launched: the ICO’s Operation Motorman into data protection offences, and a police investigation into possible corruption.
On 8th March 2003 search warrants obtained by the ICO led the investigation to the address in New Milton, Hampshire, the premises of Steve Whittamore, another private detective, and to two men who worked for him. Documentation seized from Whittamore’s premises showed that he worked with a number of associates who were able to supply him with data most of which was unlawfully obtained from a number of sources including BT accounts, other telephone companies, DVLA records, credit card statements, bank statements, and the Police National Computer. I will deal with the scale of this documentation in a moment.
Whittamore was in some sort of partnership or similar relationship with Boyall. Together, they appeared to have a network of corrupt officials who, for a consideration, supplied ‘specialist information’. Central amongst these was Paul Marshall, a communications officer at Tooting Police Station who retrieved information from ex-directory phone numbers and vehicle registration details to criminal records.
This information was handed to Whittamore and Boyle by an intermediary, a retired policeman called Alan King, and in February 2004 the CPS charged all four men with conspiracy offences. In due course, all four men pleaded guilty, but the sentence in each case was a conditional discharge. It would be fair to say that the then IC, Mr Thomas, was somewhat frustrated by this outcome.
What is of interest to this Inquiry is the possible involvement of the Press in procuring and then receiving this confidential information.
In the words of the IC, when dealing with the documentation seized during the course of the March 2003 raid:-
But it was the wealth of detail that was to prove so valuable to our knowledge of the illegal market in personal information: ledgers, workbooks and invoices detailing who had requested the information, precisely what information they were given, how much they were charged, and how much was paid to associates who actually obtained the information.
It should be noted that the ‘client’, the person who had requested the information, was not always a journalist; and this Inquiry is only concerned with clients who were.
When the seized documentation was analysed, the following picture emerged:
- In the previous three years alone, 305 different journalists had asked Steve Whittamore for a total of 13,343 different items of information. These 305 journalists worked for a total of 21 newspapers and 11 magazines, although some journalists worked for more than one publication.
- A fuller breakdown of the 305 journalists appears in tabular form in Mr Thomas’ second report. Out of the transactions positively identified, 952 were attributed to the Daily Mail, with 58 different journalists involved. We will hear more about this in evidence, but the Sunday People came next in the list with 802 transactions and 50 journalists, then the Daily Mirror with 802 transactions and 45 journalists, the Mail on Sunday with 681 transactions and 33 journalists, and the NoW with 228 transactions and 23 journalists. I do not burden my opening submissions by reading out all the names. Towards the bottom of the list we can see the ST and the T newspapers whose transactions feature in single figures. The Guardian, the Independent and the FT are not on the list.
- The 13,343 separate transactions were analysed by the IC’s office. It found that 1,998 of them were too vague to allow any definite conclusion. Of the remainder, and this is information obtained pursuant to a FOI request, 5,025 were assessed to constitute clear breaches of the DPA, and 6,330 probable breaches of the Act. These assessments were reached having regard to the nature of the information and to the price paid for it.
- The price paid for 3,291 pieces of information was over £164K.
- The identities of the journalists involved have not been vouchsafed by the ICO. In answer to a FOI request, their identities were ciphered. However, from the information provided it is clear than a number of journalists made prolific numbers of illegal or probably illegal requests (the most prolific runs to 679), and one journalist commissioned some £26K worth of transactions.
Criminal proceedings were never taken against any of the journalists. The precise reasons for this will need carefully to be examined with Mr Thomas, although one reason he gives is that he could not be completely confident that the public interest defence would not apply.
In this respect, two matters are worthy of note. First, none of the four conspirators in their criminal proceedings sought to rely on any public interest defence. Presumably they took the view, on advice, that such a defence would not run. As Mr Thomas explains in the context of their cases, it is not surprising that this view was taken, given that this activity was in the nature of a fishing expedition, and the public interest would need to be identified before the information was obtained, disclosed on procured, not afterwards. Secondly, if Mr Thomas is right about the public interest defence in relation to the private investigators, it is not immediately obvious why an equivalent reasoning process does not apply to the journalists. It was they after all who commissioned the individual transactions. In any event, the burden would have been on the journalist to raise the defence, and its strength could then have been separately assessed.
It might be said in relation to the journalists that it could not be necessarily proven according to the criminal standard that they knew that they were obtaining information in breach of the DPA.
Here is what Mr Thomas has to say about that possibility in para 5.3 of his first report:
This was not just an isolated business operating occasionally outside the law, but one dedicated to its systematic and lucrative flouting. Nor could its customers escape censure. Some of the information contained (such as PNC checks, ex-directory telephone numbers and details of frequently dialled numbers) cannot normally be obtained by such businesses by lawful means. Others – such as personal addresses – can be obtained lawfully only by the old footslogging means such as personal checks of the full electoral register. The prices charged for some pieces of information raised questions about their provenance: either the price was too low for information obtained lawfully (as in the case of personal addresses), or it was high enough to indicate criminal activity (as in criminal records checks)
Well, in due course I will be inviting Mr Thomas to expand on this particular paragraph.
AFRAID OF PRESS POWER
...there is evidence from a former employee of the ICO which suggests that the extent of wrongdoing went significantly further than the 13,343 transactions I have mentioned, and that Mr Thomas and his deputy took a specific policy decision not to bring proceedings against individual journalists because they were afraid of the power they wielded. Secondly, the Daily Mail has given evidence to the Inquiry which suggests that the information its journalists may have procured was entirely innocuous information which did not evidence the commission of any criminal offences.
The IC’s two reports, both published in 2006, did not attract a lot of press interest at the time. I will not speculate as to the possible reasons for this.
Mr Thomas’ first witness statement to the Inquiry draws to your attention some interesting exchanges he had with the PCC. He asked the PCC to fire a clear warning shot to the Press about the risks of breaking the law. In due course we will hear about this, and the PCC’s reaction to this request.
One of Mr Thomas’ recommendations was that s.55 of the DPA should be amended so as to increase the maximum penalty for this offence from a fine to a two year period of imprisonment for a conviction on indictment. Mr Thomas’ evidence to the Inquiry is very illuminating on this issue. To cut a long story short, s.77 of the Criminal Justice and Immigration Act 2008 was initially to contain a provision which reflected Mr Thomas’ recommendation. The quid pro quo was a strengthening of the public interest defence (see s.78, introducing a new provision into s.55 of the DPA) which would have changed the test from being objective to subjective. However, a late intervention by the then PM led, on Mr Thomas’ account, to a classic legislative compromise: these new provisions entered the statute book, but did not have immediate force of law. A separate statutory instrument would be needed to bring them into effect, and none has been laid before Parliament to date.
MICROCOSM OF KEY ISSUES
Mr Thomas’s evidence contains in microcosm a number of the key issues which form the subject-matter of Part 1 of this Inquiry. I have in mind the extent of press misconduct and the possible existence of a culture, the press response to the IC’s reports, and then the political response to his recommendations. That said, one appreciates that the Whittamore raid took place in March 2003, and some might say that all of this is water under the bridge.
PHONE HACKING/MULCAIRE/NEWS OF THE WORLD
My point of departure is inevitably the NoW and the Goodman/Mulcaire proceedings which culminated in guilty pleas and a sentencing hearing before Mr Justice Gross in January 2007.
Mr Clive Goodman was the Royal Editor of the NoW and Mr Glenn Mulcaire was a private investigator who probably had been working for the paper in some shape or form since 1997: first as a research consultant employed by a private company, and then after 2001 through his own company. The first formal contract between Mulcaire’s company and the NoW covers the annual period beginning on 1/9/01, and under it he received weekly remuneration at an annualised rate of £92K p.a.
When his business premises were raided by the Police, the investigating officers found a contract between the NoW and Nine Consultancy Ltd (Mulcaire’s company at that time) covering the 12 month period beginning on 1st July 2005. Under this contract Mulcaire undertook to carry out a research and information service in return for which he would be paid £104,988. The payment of this amount is shown on NoW’s books.
One obvious question which arises is this: what was the exact nature of the services Mulcaire was contracted to provide? It was accepted at the criminal trial that the £104K was paid in exchange for the delivery of legitimate services, and that illegitimate activities were covered by separate cash payments, but evidence has come to light which suggests differently.
The criminal proceedings were limited to an eight month period, November 2005 to June 2006.
Under counts 1-15 of the indictment, it was alleged that Goodman and Mulcaire conspired to commit breaches of s.1 of the Regulatory of Investigatory Powers Act 2000 (RIPA) by working together to gain access to the voicemail messages of three members of the Royal Household. The purpose of gaining access to the messages was to obtain confidential information with a view to it being published in the NoW newspaper.
In order to make good this indictment, the prosecution had to prove a common purpose or scheme between the two men. It would have been sufficient for the prosecution to have proved that it was only Mulcaire who actually gained access to voicemails pursuant to this scheme, although there was evidence that Goodman made some of the calls into the system. Further, for the purposes of the conspiracy allegation the prosecution did not have to prove that the fruits of this activity ever found their way into the NoW in the form of stories, although here again there was evidence that they did.
Under counts 16-20 of the indictment, it was alleged that Mulcaire alone accessed the voicemails of five other individuals in breach of s1 of RIPA. It was not alleged that he did so pursuant to any arrangement with Goodman. The prosecution did not seek to prove to the criminal standard that Mulcaire was working with others within NI.
I will need to examine Counts 16-20 with particular care, for obvious reasons, but at this stage I note that the five individuals I mentioned in the context of these counts would not have been of interest to the Royal Editor. This must have been obvious to NI at all material times – by which I mean anyone within the company equipped with a basic familiarity with these facts.
I return to Counts 1-15 and to Mulcaire’s modus operandi. I think that I can simplify it to this extent. In order to gain access to voicemail messages remotely, in other words from a telephone other than the mobile phone paired with its voicemail, typically you need to have possession of a unique retrieval number and a PIN number. I say typically because arrangements differ slightly across the mobile networks. Thus, I can gain access to the voicemail of my mobile phone by telephoning in from a landline using the unique retrieval number and a PIN number, and so can anyone else.
Finding out the PIN number was not that straightforward and here Mulcaire had to use underhand methods. His practice was to telephone the customer services department of a mobile phone provider and persuade the company to reset the PIN to its default setting. In order to do this he needed to use a company password in order to convince customer services that he was acting legitimately.
It is more than a reasonable inference that Mulcaire had some sort of illicit pathway to two key pieces of information: first, the unique retrieval numbers paired with a particular mobile phone; secondly, the company passwords which would give him credibility when he spoke to customer services. These passwords were often changed for security purposes, so Mulcaire’s channels of information must have been ongoing. It is not entirely clear how Mulcaire had access to the unique retrieval numbers, or as it happens to other confidential mobile phone data. I have mentioned illicit pathways; these include the possibility of both blagging and corruption.
In relation to counts 1-15 Mulcaire used landlines located within his office and another telephone installed in a cashpoint machine. Goodman made some calls from his home address, and more pertinently for our purposes, from a fixed link telephone installed at the offices of NI in Wapping.
When Mulcaire’s premises were raided, the Police found a number of notebooks containing details of the scheme of interception. These notebooks are of particular interest to the Inquiry. In relation to Counts 1-15, their contents were explained by prosecuting counsel to Gross J.
The information varied from page to page, but very often one could see the name of the individual member of the Royal Household targeted, his or her mobile telephone number, his or her unique retrieval number, the PIN number (which had been reset to default) and finally the number of the network service provider.
The notebook evidence did not prove that the voicemails had been accessed, but in the case of counts 1-15 there was other evidence which established that fact, because the Police had analysed call data from the various phones I have referred to and had made the link.
On many but not all of the notebook pages, there is to be seen one extra piece of evidence, namely at the top LH corner of the page a first name. In relation to counts 1-15, the prosecution on the basis that the first name was ‘Clive’, which was Goodman’s given name. This provided further evidence of the conspiracy.
Investigating officers in Operation Weeting have carried out further analyses of the Mulcaire notebook. This has proven to be a painstaking and challenging exercise. At this stage, I can give some further information about counts 1-15, since not all these LH corner names were ’Clive’. In relation to one of the members of the Royal Household who was the target in counts 1-15, the corner names were ‘Clive’ or ‘Private’ or someone I am going to call ‘A’.
You have ruled that ‘A’ should be ciphered in these proceedings, although I have been told his or her identity. The revelation of ‘A’s’ identity is not necessary for Part 1 purposes and might cause prejudice to the Police investigation.
One possible inference to be drawn is that ‘A’ was working with or for Goodman and that he or she may have instructed Mulcaire to carry out a particular voicemail interception operation. It might be argued that A could have been acting independently of Goodman, but that would not make much sense since we know that Goodman was the Royal Editor and we also know that the targets of counts 1-15 were members of the Royal Household.
I have mentioned the consultancy agreement between Mulcaire’s company and NI. There was also evidence that Mulcaire received cash payments in the aggregate sum of £12,300 between November 2005 and August 2006. These payments were made by Goodman although he made corresponding expenses claims on the company. In relation to these claims, the identity of the source, Mulcaire, was protected, since he was described in NI’s books as ‘Alexander’. As prosecuting counsel explained to Gross J, the payment records showed that there were payments to ‘Alexander’ in relation to ‘Fergie, SAS, Will, Harry and Chelsea, Harry, Harry, Wills, Wills’. This provides some indication of the sort of information that was being provided.
I need to branch out now into Counts 16-20.
Count 16 concerned Mr Max Clifford, the well-known publicity consultant. His clients are well outside Goodman’s bailiwick, the affairs of the Royal Family.
Count 17 concerned Mr Sky Andrew, a well-known management and public relations consultant with a client base including, most notably, professional footballers.
Count 18 concerned Mr Gordon Taylor, the Chief Executive of the Professional Footballers’ Association.
Count 19 concerned Mr Simon Hughes MP, who probably needs no introduction.
And the same applies to the subject-matter of Count 20, Ms Elle MacPherson.
On my understanding of the criminal proceedings, the prosecution did not seek to deploy Mulcaire’s notebook in an attempt to link Mulcaire with any particular employee within NoW. Strictly speaking, there was absolutely no need to do so because only Mulcaire’s name was on the indictment in relation to Counts 16-20, and there was therefore no purpose in bringing in other employees of the company.
However, it is noteworthy that Judge Gross himself was alive to the practical realities. At page 68H of the transcript of those proceedings, he said:-
The picture painted by that paragraph [a paragraph in the Goodman pre-sentence report] certainly read together with Mr Mulcaire’s pre-sentence report, although I know that they are separate documents, but if you look at the picture together...there is a climate in which such activities are, or might become, common-place, and that I regard as a feature which I must consider. So I give notice of that
Here, Gross J was referring to the possibility of giving a deterrent sentence.
Interesting, in mitigating his client’s case on his behalf, Defence counsel for Goodman said this:
Mr Goodman has lived his life in a world where, and I say this with some trepidation, ethical lines are not always clearly defined, or at least observed [70E]
In his sentencing remarks, Gross J said this:
As to Counts 16-20, you had not dealt with Goodman but with others at NI. You had not been paid anything because no stories had resulted. [179H]
In relation to non-payment, that was what Gross J had been told, but whether it was true is debatable.
Thus, it was clearly understood by Gross J that there were almost certainly other anonymous co-conspirators, if I can put it in those terms, and perhaps that is hardly surprising.
Back in 2006/7 the prosecution did not seek to bring those co-conspirators within the scope of its proceedings. Perhaps they felt that the evidence was insufficient to prove the case to the criminal standard; perhaps they felt that the overriding imperative was to close this operation down in such a way that there would not be a repeat; perhaps there are other plausible explanations.
Addressing the issue neutrally, it should be emphasised that the criminal standard of proof is a high one. Juries are directed that they must not find a defendant guilty unless they are sure of guilt. Nothing less than that will do.
It remains to be determined how you should approach the standard of proof in relation to any findings you make in your report, but in written submissions we placed before you on 4th October it was suggested, in line with standard practice in this area, that insofar as you should apply a standard of proof to determinations of fact under the 2005 Act the civil standard of the balance of probabilities should govern.
It is not our purpose under Part 1 to identify the other individuals within News International who were or might have tasked Mulcaire to hack into voicemails. However, it does need to be established that they existed, and we can do that with reference to a range of evidence.
First, there is evidence which entered the public domain after the criminal trial. For example:-
- According to the report of the Culture, Media and Sport’s Select Committee published in February 2010, on 4/2/05 Mulcaire, using the pseudonym ‘Paul Williams’, and Greg Miskiw, the then Assistant News Editor of the NoW, signed a contract which gave Mulcaire exclusive rights in relation to the information or pictures bearing on the private life of Gordon Taylor, in return for the NoW agreeing to pay Mulcaire at least £7K. This document does not of course prove that Mulcaire would need to be accessing voicemails in order to obtain the ‘information’ in question, still less that Mr Miskiw knew that. We do however know from his plea to Count 17 that Mulcaire did access Gordon Taylor’s voicemail. His guilty plea related to the period February 2005 to June 2006, although in the subsequent civil proceedings the period alleged was January 2005 to May 2006.
- According to the same Select Committee report, on 29/6/05 a reporter at the NoW sent an email to Mulcaire which opened with the words, ‘this is a transcript for Neville’. According to paragraph 412 of the Select Committee’s report:-
There followed a transcription of 35 voicemail messages. In 13 cases the recipient of the message was ‘GT’, Gordon Taylor, and in 17 cases Jo Armstrong.
In June 2005, there was only one ‘Neville’ on NI’s staff at the time, namely the Chief reporter, Neville Thurlbeck. I have already made it clear that he has denied any knowledge of the email, or of the associated transcripts.
Secondly, in the context of Counts 16-20, the Police’s analysis of the Mulcaire notebook, and it is an analysis carried out in the context of Operation Weeting, is that the corner names In Max Clifford’s case was either ‘A’, or ‘Private’, or ‘A Private’. ‘A’ is a cipher, and I should make it clear that it is the same ‘A’ whom I mentioned in the context of Counts 1-15. In Skylet Andrew’s case the corner name was ‘I’, in Gordon Taylor’s case the corner name was again ‘A’, in Simon Hughes’ case the corner names were ‘A’, B’, and ‘C’. There is also one illegible corner name. Finally, in Elle MacPherson’s case the corner names were ‘B’ and ‘Private’.
So, we have a range of corner names. I know the first name in each case, but obviously do not know anything about the corner name ‘Private’, or is significance. We only have the first name in each of these cases, but they tie up with the first names of employees of NI.
Thirdly, we have evidence emerging from the civil proceedings which are due to come to trial before Vos J at the end of January 2012. The Claimants in the civil proceedings are not limited to the targets of Counts 16-20 on the original Mulcaire indictment; indeed, some of these individuals have not brought civil claims. We will be hearing from some of the civil claimants next week.
The Claimants’ case in the civil proceedings is that a system operated within NoW, essentially a conspiracy, whereby Mulcaire and employees of that organisation would work together to access voicemails for the purpose of excavating pieces of information which could then form the subject-matter of stories in the paper.
Fourthly, NI have provided the Inquiry Team with a list of the admissions they have made in those civil proceedings where proceedings have been issued.
I will deal with those admissions in the following manner. Putting to one side the Sienna Miller case for one moment, NI have made admissions in about a dozen civil claims along the lines that Glenn Mulcaire gained access to voicemails. The most prolific of these is probably Skylet Andrew’s case, where there 14 successful attempts and 19 failed attempts. In some of these claims NI has also admitted that use was made of confidential information obtained by publishing articles.
We have noted in relation to these admissions that NI has accepted vicarious liability for the acts of Mulcaire, not for the acts of those within their organisation who tasked or commissioned him. But admissions are usually made on a minimalist basis.
I deal separately with Sienna Miller’s claim, and this is my fifth point. In her Re-Amended Particulars of Claim dated 11th April 2011, Ms Miller alleged a systematic invasion of her privacy by a series of voicemail interceptions in 2005 and 2006, and an equivalent campaign of harassment for over 12 months. She also alleged that between July 2005 and July 2006 a number of articles about her were published in the NoW, and that it should be inferred that some or all of the private information contained in these articles were the products of NI’s unlawful activities. Finally, she alleged that in September 2008 her email account was hacked into using the same password as her mobile phone password, and that private messages were accessed.
On 12th May 2011 NI’s Leading Counsel, in proceedings before Vos J which were transcribed, admitted all the causes of action pleaded in the Re-amended Particulars of Claim. There was subsequently a statement in open court when Sienna Miller’s claim was settled. The upshot in legal terms is that NI thereby admitted those facts which were both necessary and sufficient to found each individual cause of action set out in the pleadings. Paragraph 31 of the Re-Amended Particulars of Claim, which alleged by way of an alternative case a common design and/or the counselling and procuring of voicemail hacking by journalists at NI, was also admitted. If there is a dispute about this, we need look no further than the transcript of the proceedings before Vos J on 12/5/11, page 3, lines 15-16, where Mr Silverleaf QC accepted all the pleaded bases of claim. The significance of this is that in the SM litigation NI were going further than their minimalist admissions elsewhere.
THE SUN, MIRROR, JUDE LAW
Sixthly, reference should be made to Jude Law’s civil claim against The Sun, which is not in fact one of the claims due to be heard next January. Mr Law alleges that his phone was hacked by The Sun, which is of course part of the NI portfolio of print titles. Part of the evidential matrix in support of his case is a corner name in the Mulcaire notebook which simply states ‘The Sun’, without specifying the individual working there. It has also been drawn to the Inquiry’s attention there may be another corner name relating to the Mirror, but this is under investigation.
Seventhly, I can say more about Gordon Taylor’s case. He brought civil proceedings against NI and Mulcaire on the back of the criminal trial; indeed, he was the very first to do so. His claim was in breach of confidence, misuse of private information and invasion of privacy; he did not allege the ‘system’ that was subsequently to become the basis of pleading the civil claims. NI initially denied these claims. Mr Taylor’s lawyers then applied for third party disclosure against the Metropolitan Police, and secured access to various documentation, including the February 2005 contract and the ‘for Neville’ email. Mr Taylor then amended his pleadings to refer to this material. It is clear from documents recently disclosed and publicised by the Culture Media and Sport Select Committee that these revelations, which emerged internally in 2008, prompted NI to obtain advice from senior Queen’s Counsel as to how to proceed in the Litigation. Mr Michael Silverleaf QC advised in writing on 3rd June 2008.
QC’S OPINION FOR NEWS INTERNATIONAL
Mr Silverleaf’s Opinion is in the public domain. Apart from the documentation I have already mentioned, he referred to the existence of a draft article which may have been based on the voicemail transcripts; Mr Silverleaf noted however that one NI employee, whose name has been anonymised, disputed that fact.
Mr Silverleaf drew certain inferences from the disclosed material which led him to conclude that at least three named individuals within NI ‘appear to have been intimately involved in Mr Mulcaire’s illegal researching into Mr Taylor’s affairs’. It is not necessary for my purposes to comment on those inferences.
I should cite three passages from Mr Silverleaf’s Opinion:-
‘...there is no public interest in its disclosure [here he is referring to the personal information relating to Mr Taylor] which could possibly justify the use of unlawful means to obtain information about it’
‘In the light of these facts, it seems to me, as it seems to both my instructing solicitor and to junior counsel, that NGN’s prospects of avoiding liability for the claims of breach of confidence and invasion of privacy made by Mr Taylor are slim to the extent of being non-existent. ... There is overwhelming evidence of the involvement of senior NGN journalists in the illegal inquiries into [words redacted]. In addition there is substantial surrounding material about the extent of NGN’s journalists’ attempts to obtain access to information illegally in relation to other individuals [here, Mr S is referring to the IC’s reports]. In the light of these facts there is a powerful case that there is, or was, a culture of illegal information access used at NGN in order to procure stories for publication. Not only does this mean that NGN is virtually certain to be held liable to Mr Taylor, to have this paraded at a public trial would, I imagine, be extremely damaging to NGN’s public reputation.
I should at this point mention that when Mr Mulcaire was sentenced for the offences noted above, it seems to have been accepted by the prosecution and the court that his contract with NGN to provide research services was for legitimate activities and a confiscation order was made only in relation to additional cash payments relating to members of the Royal Household. The recently disclosed information seems to throw that acceptance into considerable doubt. If the trial proceeds, there seems to be little doubt that Mr Taylor’s case will be advanced on the basis that Mr Mulcaire was specifically employed by NGN to engage in illegal information gathering to provide the basis for stories to appear in NGN’s newspapers.
These paragraphs, trenchantly worded, speak for themselves. I will be returning to MS’s point that Mulcaire was not providing research services for legitimate activities.
EXCESSIVE PAYMENT TO GORDON TAYLOR
Mr S also advised on quantum. His advice was written before Eady J’s judgment in the Max Mosley case, where the claimant received £60,000 for the breach of privacy claim but failed in his attempt to recover exemplary damages. Accordingly, Mr S had little to go on as regards previous authority. He did however advise that he believed that Mr Taylor’s damages would be enhanced by various aggravating features. His overall conclusion was that the court might award a sum at any level from £25K to £250K or possibly even slightly more, although he considered that extremely unlikely. Here, Mr S was giving outer limits, not realistic parameters. His best guess was that the bracket was £100,000 to £250,000.
NI entered into settlement negotiations with Mr Taylor’s advisors in the light of this deeply pessimistic advice. NI’s ultimate payout to Mr Taylor was the sum of £700K, £425K of which was attributed to damages and the balance to legal costs. The settlement agreement contained a confidentiality clause, which is not unusual in this sort of case.
This is a big number, and well in excess of MS’ upper bracket.
HOW THIS BEARS ON NEWS INTERNATIONAL CULTURE
There are a number of questions arising out of this sequence of events which have an obvious bearing on the issue of culture.
One issue may be the extent to which the most senior executives in NI knew of the Silverleaf opinion and the settlement negotiations. Some insight into this issue is provided by documents placed into the public domain by the Select Committee, and by recent evidence given to that committee, but the extent to which the Inquiry needs to get to the bottom of this issue in Part 1 is debatable. What may be of more interest at this stage is the window this vignette might give us into the culture of the organisation.
NI was consistently running the public line that Goodman was a rogue reporter. They did so after June 2008 and continued to do so until fairly recently. This gives rise to obvious questions about the culture of the organisation, and as to how far this went up. Was there a culture of denial or, even worse, cover-up; and was Mr Taylor paid over the odds to keep silent?
In relation to Mr S’s Opinion, there are only two logical possibilities. Either its contents were communicated to those at a high level in the organisation, in which case certain inferences may be drawn, or a decision was taken lower down, if I may put it in this way, not to communicate its contents to those at a high level in the organisation, in which different inferences may be drawn. On either hypothesis we have insight into the culture of NI at the time.
PAYMENTS TO GOODMAN AND MULCAIRE
Eighthly, I turn to the issue of the Goodman/Mulcaire settlements. Once they had served their prison terms, each brought proceedings for unfair dismissal in the employment tribunal. It was Goodman’s case, in part, that senior executives in NI well knew what he was doing, and condoned it. Mr Goodman was questioned about this in internal disciplinary proceedings and referred to emails which, he believed, would prove his case. He sought the disclosure of these emails but they were never forthcoming, NI would say because they do not exist. At all events, NI took advice about the fairness of their dismissal and was told that the statutory dismissal process had not been correctly followed. Settlement negotiations then took place, and the parties came to terms at a figure of £140,000 inclusive of legal costs. Again, there was a confidentiality stipulation.
Mulcaire, too, brought proceedings in the ET. The issues in his case were the same, but his settlement figure was more modest - £73,000.
HARBOTTLE & LEWIS INTERNAL INVESTIGATION
Goodman’s reference to internal emails which proved his case sparked off certain lines of investigation within News International. Harbottle & Lewis, a firm of solicitors, were asked to consider a database, or part of a database, and to advise whether they yielded any evidence of the case Mr Goodman was advancing. The H&L investigation covered over 2,500 emails and related to five senior newspaper employees. In due course, H&L advised that in their view these emails did amount to proof that others knew about Goodman and Mulcaire’s phone hacking activity, and this advice was subsequently relied in by NI as supporting their public line.
It should be noted that H&L have subsequently stated that their review was limited and never intended to give NI a clean bill of health for all purposes. By implication, they are criticising NI for placing too much weight on their advice.
‘SECRECY AND COVER-UP’
Whether this is an issue which the Inquiry will need to consider is debatable. What may be more relevant, however, is the fact and level of settlements reached with Goodman and Mulcaire, since this may be viewed as further evidence of a culture of secrecy and cover-up.
MULCAIRE’S NOTEBOOK: FROM OPERATION WEETING
Having reached this stage in my submissions, I am able to assist the Inquiry further in relation to the Mulcaire notebook, and to provide an overview analysis. The purpose of doing so is solely to provide you with some sense of breadth and depth. My analysis is drawn from the work of officers in Operation Weeting.
The Mulcaire notebooks run to some 11,000 pages. They evidence some 2,266 taskings, although some of these relate to the same individual. On occasion, the true target will not be the person identified in the notebook; often, the hacking was directed at associates of the true target with a view to finding information about the true target.
Overall, there are about 28 legible corner names. I have already given ciphers for some of these in relation to the counts on the original indictment.
Aside from Goodman, the most prolific users of Mulcaire’s services were corner names A, B, C and D.
A appears on 1,453 occasions, B 303, C 252 and D 135. This accounts for 2,143 taskings. The other corner names appear infrequently, often in single figures, as the basic arithmetic suggests.
The Metropolitan Police have recently placed in the public domain the number of potentially identifiable persons who appear in this material, and who may therefore be victims. The figure they have given is 5,795 names. There are 318 outgoing calls to unique voicemail numbers from a variety of different phones, Some, but a minority, of those may be people legitimately accessing their own voicemails remotely. There are 690 audio recordings by Mulcaire. There are 586 voicemail messages, mostly messages that were apparently intercepted. There were 64 identifiable individuals who were intended recipients of the 586 voicemail messages. There are in addition 38 recordings of Mulcaire blaggings.
The scale of this activity gives rise to the powerful inference that it must have occupied Mulcaire full-time, an inference which is supported by Mark Thomson’s evidence to the Inquiry, in particular para 33, which we will hear next week. Had MS known of this evidence when he advised in June 2008, the prescient inferences which he was prepared to draw from less cogent material would have been even stronger.
HACKING CONTINUED TO AT LEAST 2009
According to the Met Police, NI’s hacking operation had certainly begun by 2002, Milly Dowler being the first known victim. The Police believe that it continued until at least 2009. This belief is not derived from an analysis of the Mulcaire notebooks, which we know were seized back in 2006.
What inferences may safely be drawn from this material for the purposes of Part 1 of the Inquiry? My approach will be a parsimonious one, although I should emphasise that I have not opened to you all the relevant evidence which is in the public domain.
HACKING WAS A THRIVING COTTAGE INDUSTRY
It is clear that Goodman was not a rogue reporter. Ignoring the ‘private’ corner name, and the illegibles, we have at least 27 other NI employees. This fact alone suggests wide-ranging, illegal activity within the organisation at the relevant time. Aside from the number of individuals potentially inculpated, we also have evidence of a significant quantity of illegal activity over a relatively lengthy time period. There are a number of ways in which this activity might collectively be characterised. I suggest that it would not be unfair to comment that it was, at the very least, a thriving cottage-industry.
A public interest defence could not be run at any criminal trial, because we know that it does not exist under RIPA. In any event, we have MS’s trenchant view expressed in the context of the civil claims that it would not have run as a defence to the privacy of breach of confidence claims either. His opinion was doubtless based on an assessment of the illegality of the means deployed weighed against the sort of information NI were hoping to unearth. With respect, MS’s opinion is obviously right and I do not imagine that this Inquiry will hear a contrary view.
GRUBBY, UNDERHAND, HIGH HANDED
In terms of characterising the behaviour of those who partook in these activities, Judge Gross described it as ‘as low as it gets’. Apart from being illegal, it was grubby, it was underhand, and it was high-handed. Maybe individuals, the corner names, did not know that this was illegal (that would not course be a defence); maybe some felt that the public interest as they saw it justified everything; maybe the moral compasses of those directly involved were simply pointing way off true north, because after all, so they would say, they owed a wider duty to expose hypocrisy and to entertain: the public has a right to know. Unfortunately, it might be said against them that the same willingness to judge the conduct of their targets on moral grounds does not appear to have been self-directed.
WHERE DID THE BUCK STOP?
Questions might be asked as to how high up in NI the metaphorical buck stops.
Here, one needs to be extremely careful, particularly in defining one’s terms and evaluating the present state of the evidence. Further, the submissions I am about to make will not cover the possibility of corporate liability under the DPA.
First of all, there is a difference between responsibility in terms of the criminal law, and responsibility in terms of corporate governance and ethics; the latter is capable of being much wider than the former.
In terms of the criminal law, nothing less than proof to the criminal standard of accessory liability would suffice. By this I mean the following, that there would have to be proof that X within NI aided, abetted, counselled or procured the relevant breach of s.1 of RIPA. Hard evidence of this would be required, not speculation and guesswork. Inferences are capable of being drawn in criminal cases, but juries are warned to be careful.
When one comes to corporate governance and journalistic ethics, the debate is somewhat broader, but at the same time the Inquiry does not seek to prejudice the criminal proceedings.
NEWS INTERNATIONAL’S PROBLEM
For the purposes of this Inquiry, NI are likely to find themselves caught on the prongs of Morton’s Fork, because there are only two logical possibilities. Either senior management knew what was going on at the time, and therefore (at the very least) condoned this illegal activity, or they did not and NI’s systems failed to the extent that there was (at the very least) a failure of supervision and oversight, with possible failures of training, corporate ethos, and checking of expenses claims. There is, I suppose, room for the Nelsonian blind-eye within this framework. The point I am making is that on either version we have clear evidence of a generic, systemic or cultural problem...It is of course possible to consider a range of other potential inferences, but I am not advancing these as submissions, merely as possibilities.
I have already mentioned the possibility of a culture of cover-up and denial: this issue is certainly within the reach of the Terms of Reference, and we will need to address it.
PRESSURES ON THE JOURNALISTS AND GOODMAN
Consideration may also need to be given as to whether there might have been wider causes in play, both inside and outside the organisation. The existence of such wider causes gives rise to the possibility that these illegal activities may not have been confined to NI, but given the known scale of these activities within NI this possibility cannot be excluded from account in any event.
Part of the mitigation advanced on Goodman’s behalf was that his job was on the line, and he was under constant pressure to come up with new and tantalising stories, These pressures led him to cut corners, and to indulge in what might be described as a lazy form of journalism, rather than using traditional, fairer and more time-consuming methods. The cult of celebrity, and the quest for the sort of salacious morsels which might, at best, form the basis for an exclusive story, is part of the wider picture, because it encourages journalists yield to the temptation to peer into secret worlds, if the technology exists to allow them to do so. Furthermore, if the prevailing zeitgeist is that there no limits exist, because as a matter of principle the celebrity’s life is altogether in the public domain, then any ethical constraints on such behaviours are much diminished.
CULT OF CELEBRITY
I mention the cult of celebrity. I am not suggesting that the Press is solely, or even mainly, to blame for the existence of this. It is part of a wider phenomenon, that human beings tend to be nosey. A human geneticist might argue that this is part of our DNA, a sociologist that it is a cultural matter. This Inquiry is not required to resolve this sort of dispute, but it is being asked to consider the bigger picture. Nor, in this regard, is there anything new under the sun. The great American jurists, Warren and Brandeis, writing in the Harvard law review in 1890 said this:-
The press is overstepping in every direction the obvious bounds of propriety and decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle...
I commend this article to the Inquiry, not because I necessarily agree with it, but because it provides a counterweight to some of the historical analyses on press freedom which quite rightly have been pressed on the Inquiry by some of the CPs, and contains a pithy and well-written encapsulation of what is meant by the public interest.
OTHER PRESS IGNORED HACKING STORY
In touching on these possible wider causes, one is reminded by what Lionel Barber, the editor of the FT, said at his Cudlipp lecture earlier this year:
Most important of all, the newspaper industry itself did not take the issue seriously or seek to establish the truth. Indeed, aside from the lead taken by the Guardian, which was followed by the FT, BBC and Independent, the rest of the newspaper industry took a pass on the News of the World phone-hacking story – almost certainly because they too were involved in "dark arts".
OTHER ORGANISATIONS INVOLVED IN HACKING
My review of phone hacking has been confined to the present state of the evidence relating to the NoW. However, the Inquiry is beginning to receive evidence to indicate that phone hacking was not limited to that organisation, and this will no doubt assist on the issues of culture, breadth and depth.
EXISTING REGULATORY SYSTEM
I am now moving off the issue of phone hacking, because I need to turn to an overview of the existing regulatory system. This Inquiry will no doubt reach a range of findings on culture, practices and ethics, but its most important work will be in relation to the recommendations it makes for any change.
The existing regulatory system covers the criminal law, the civil law, and what may be described as internal and external self-regulation. Each of these is seeking to achieve a different objective.
The Inquiry has already received a detailed briefing from Mr Mark Warby QC these matters. I will aim to identify some key areas for further consideration.
First, the criminal law.
Phone hacking is an offence under RIPA, as it was under the 1985 Act. The unlawful interception of communications is punishable on indictment by a term of imprisonment of up to two years.
The Act covers the interception of any communications, including postal communications.
There is an issue as to the true construction of s.2(7) and (8) of RIPA.
(7) For the purposes of this section the times while a communication is being transmitted by means of a telecommunication system shall be taken to include any time when the system by means of which the communication is being, or has been, transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it.
(8) For the purposes of this section the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently.
Sub-section (8) is clear, and covers the recording of voicemails. It does not address the issue of timing.
The issue under sub-section (7) is whether a voicemail can be unlawfully intercepted after it has been first listened to by its intended recipient, and thereafter stored in the system as a ‘read voicemail’.
One would have thought that the closing words of sub-section (7) cater for this possibility – ‘or otherwise to have access to it’. That would be the natural and ordinary meaning of those words, although it has been suggested in some quarters that the relevant communication is no longer being transmitted at that point, just as a letter ceases to be transmitted by the postal service once it has been delivered.
This issue was touched on, but it did not really feature in, the criminal proceedings before Gross J in January 2007, largely because the evidence in those proceedings appeared to be along the lines that Mulcaire or Goodman had listened to the relevant voicemails before their intended recipients. In relation to Counts 16-20, however, the position was less clear. At all events, Mulcaire was prepared to plead guilty, and not to take unattractive technical points.
Possible doubts as to the true construction of s.2(7) were ventilated before the Select Committee as a reason for the Police’s arguably restrictive approach to their initial investigation. If it could not be proved in all cases exactly when voicemails were intercepted, that might have been a reason for prosecutorial caution. Whether you need to consider that issue is unclear, but if you were to conclude that the meaning of s.2(7) was opaque, or still worse failed to cater for subsequent listening-in of already read voicemails, you would no doubt wish to recommend legislative changes. For the avoidance of doubt, however, my submission to you is that the meaning of s.2(7) is clear, and that covers the case of accessing read voicemails.
The offence under s.1 RIPA is not subject to any express public interest defence. In deciding whether or not to prosecute any individual case, the CPS will always consider the strength of the evidence as well as the public interest. One could postulate an extraordinary scenario in which public interest issues might arise for the CPS, perhaps the sort of scenario described by Mr Witherow in his July 2011 article, modifying the facts slightly. I say ‘perhaps’ and emphasise that this scenario is an Olympic distance away from any of the recent examples.
I have already touched on the issues relating to the DPA 1998. A voicemail system contains personal data for the purposes of that statute, and proceedings could have been brought on the Goodman/Mulcaire facts for a breach of s.55. The reason why they were not is that the offence under RIPA is clearly regarded as more serious, and more closely fitting the criminal conduct in question.
One possible difficulty with the public interest defence under s.55 is that it is not statutorily defined. The courts are therefore left with the obligation to interpret it, although on my understanding have not done so in this context. Doubtless, if the issue were ever to arise the Courts would be considering other materials such as the opinion of Lord Nicholls in Reynolds and the Editors Code, as well as the mass of cases on articles 8 and 10 of the convention.
The other area of the criminal law which is highly salient to this Inquiry is the anti-corruption legislation bearing on module 2 in particular. Under the Prevention of Corruption Act 1906, which replaced a late Victorian statute, it was an offence to bribe a public official. The 1906 Act has been repealed by the Bribery Act 2010 which came into force on 1/7/11. It contains a range of quite complex provisions, including the corporate offence (under s.7) of failing to have systems in place to prevent bribery. It also contains provisions (under section 1) which prevent a journalist from paying a source ‘to induce [him] to perform a relevant function or activity’, or ‘to reward [him] for the improper performance of such a function or activity’. Thus, if the source is a public official, it could well be argued that it is not the proper performance of his function or duty to supply information to a newspaper. That said, one can quite see that there will be issues around the margins in relation to whistle-blowing activities, and it is also to be noted that prosecutions cannot be instituted under the Bribery Act save with the consent of the DPP, the SFO, or the Director of Revenue and Customs prosecutions. These individuals would doubtless have to consider the public interest.
A number of press institutions have expressed concern to your Inquiry about the reach and penetration of the new Bribery Act. This may well be an issue which you are invited to consider.
The Inquiry does not have the time or the resources to consider wide-ranging reform to the criminal law, nor frankly would this be a remotely worthwhile exercise. I have focused on three potential areas, and I doubt whether we will need to go any further.
The relationship between the criminal law and what I have called internal and external self-regulation will need to be considered. Plainly, one of the objectives of the criminal law is to deter crime, but it is a fact of life that its measure of success in this regard is patchy. This is not to criticise the criminal law in any way; it is the harsh reality. In relation to white collar crime, which is what we are talking about, deterrence often involves a crude cost benefit analysis in the mind of the criminal. If he can see that people are not being prosecuted for similar offences, he may well plough on, in the belief that for whatever reason the police will not come after him. This may be one of the reasons why a culture within NI may have grown up in the first place. Even if the criminal law were as effective as it could reasonably be, it would not follow that there is no need for better internal and external regulation.
EUROPEAN CONVENTION ON HUMAN RIGHTS
I turn now to the civil law, which is a potentially vast area. Inevitably, I will only be skating the surface.
This Inquiry will not be directly concerning itself with the law relating to defamation, which is already the subject of much parliamentary scrutiny.
We are concerned with the developing law of privacy, which in terms of our domestic law, and some would argue our common-law, has grown out of the interplay between, and the consequent need to balance, Articles 8 and 10 of the European Convention of Human Rights. I stress ‘domestic law’, because the effect of the HRA 1998, which mostly came into force on 2/10/00, is to require judges as public authorities to give effect to Convention rights.
A8 of the Convention provides a right to respect for private and family life, home and correspondence, A10 to freedom of speech. It is immediately apparent that these rights must on occasion intersect with each other, and the Convention itself recognises that. Thus, under article 8.2, a public authority may interfere with private life where such interference is in accordance with the law and necessary for the protection of the rights and freedoms of others, and under article 10.2, the right of freedom of expression can be curtailed or restricted ‘for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence’.
The courts have consistently recognised that in a situation where A8 potentially clashes with A10, each human right has equal status. It is a question of balancing one right against the other, of calibrating the degree of infringement in any given case, and in deciding whether the infringement in question is in accordance with the law and proportionate to the intended gain and the avoidance of foreseeable harm.
The concept of proportionality is perhaps key to this exercise. Whether all newspapers are fully alive to this concept may lie at the heart of this Inquiry’s investigation.
I mentioned that for the purposes of article 8.2 of the Convention the interference with private life, if it is to be justified, must be in accordance with the law. Phone hacking is not in accordance with the law. It follows that for the purposes of the A8/A10 intersection, privacy will always win out in relation to phone hacking.
Complaint has consistently been made that the need to balance A8 and A10 rights places too much power in the hands of the judges to create a privacy law without democratic accountability. But judges have to rule on individual claims, and since the year 2000 claimants have been entitled to allege that their article 8 rights have been violated. Judges are duty bound under the HRA to apply the Convention, whether directly or via existing common-law concepts inherent in the law of breach of confidence, and a burgeoning privacy law has begun to emerge through an admittedly limited number of cases decided over the past ten years: Naomi Campbell’s in the HoL in 2003, Max Mosley’s in 2008 and Rio Ferdinand’s this year.
It is not possible fully to define what the common law of privacy constitutes, particularly when one notes that Rio Ferdinand’s case is en route to the CoA. All that one can say is that on particular facts the judicial outcome was as follows. Thus, on the facts of Naomi Campbell’s case, the intrusion into her privacy went too far in view of the photograph of her that was published alongside the article: the latter by itself would not have been objectionable since there was a public interest in the subject-matter. In Max Mosley’s case there might well have been a public interest in publishing the material in question had the Nazi allegation been true, but critically it was not. The public therefore no legitimate interest in the details of Mr Mosley’s private life, which were and are a matter for him. In Rio Ferdinand, the outcome was different because for Nicol J the role model argument found favour: there was a legitimate public interest in contradicting the public persona of a high-profile sportsman by evidence of private misdemeanour.
The CoA may provide greater certainty in this area before this Inquiry reports. In the meantime, or perhaps in any event, there will be calls for a statutory privacy law. Such a law could go further than the rights already protected by A8 of the Convention. At the very least, this Inquiry will need to address those calls in deciding whether to make any relevant recommendations.
STATUTORY PRIVACY LAW
Two matters should be noted. First, a statutory privacy law would not remove power from the hands of the judges, since they would still have to interpret and apply it. Such a law would do no more than set out the general principles to be applied in particular cases, not algorithms for mechanistic application. Secondly, and more importantly, recourse to the civil law is expensive and risky. Newspapers complain about the cost to them in the form of what they describe as unscrupulous lawyers’ fees and conditional fee agreements, but the latter are already probably on their way out in their current form and recently have been held by the ECtHR as being in breach of article 10 of the Convention in a freedom of speech context (see Mirror Group Newspapers v UK). The other side of the coin is that the litigation risk is often too high for private individuals with means and often theoretical for those without means – they cannot afford even to go to a lawyer to tell them what the risks might be. The position is not dissimilar in relation to the prior notification issue and the possibility of requiring newspapers to warn likely targets of impending publications to enable them to obtain immediate restraining orders from a High Court judge.
Thus, although the civil law is important, this Inquiry is unlikely to be attracted by solutions which are limited to the wealthy and the bold. The greater imperative is to find solutions which work for everyone, and which are therefore efficient, quick and cheap.
I turn now to the systems of internal and external regulation, since these lie at the heart of this Inquiry’s work during Part 1.
Before explaining the difference between internal and external regulation, I should make this general observation. The purpose of regulation in general is to maintain public confidence, to declare appropriate standards of behaviour and conduct, and to modify behaviours by what may loosely described as a series of sticks and carrots. The manner in which a good regulator achieves this is not merely by dealing with problems after they arise but in setting standards which reduce the risk of those problems occurring in the first place.
By internal regulation I mean the range of systems within an organisation which promote or induce good behaviours, and tend to expose bad behaviours if they occur. Appropriate synonyms are ‘corporate governance’ or, more broadly perhaps, ‘corporate ethos’. The absence of such systems will render it more likely that dysfunctional cultures will start and be permitted to thrive.
We are therefore looking at a range of internal checks and balances, including the following:-
- Rule books, codes of practice, clearly spelt-out obligations in employment contracts.
- Training and internal seminars
- Proper involvement of and oversight by in-house legal advisors.
- Proper accounting systems for approving expenses payments, in particular cash payments to sources.
- Risk management systems.
- Proper whistleblowing policies.
The evidence submitted to the Inquiry demonstrates a wide variety of corporate governance systems within the industry, from the virtually non-existent on the one hand to the extremely detailed on the other. Some witnesses have said that these systems are no substitute for journalists being trusted to using their own moral intuitions fashioned by experience, but this rather assumes that their moral compasses are pointing in the right direction in the first place, and that pressures do not exist to cause that compass needle to want to deviate from the right direction.
The relevant evidence, and these issues, will all be examined when the Inquiry hears from the key press witnesses.
The concept of external regulation scarcely needs to be defined. Self-evidently, we are looking at systems outside the organisation in question.
Here, I propose to start with the Editors’ Code of Practice, which it is the obligation of the Press Complaints Commission to enforce. Typically, journalists have an express contractual obligation to comply with the Code of Practice, and so this might also be seen as an example of internal regulation. Whereas the PCC comprises both press and lay members (the latter being in a majority), the Editors’ Code of Practice Committee, which is responsible for revising the Code, comprises 13 editors across a range of publications. The current position is that the Code is reviewed annually.
The latest edition of the Editors Code was ratified by the PCC in January 2011. It is to be found in our documents system at URN MOD100005956. There is also a handbook to the Editors’ Code of Practice, the 2011 edition of which (only available online) the Inquiry will need to consider. The handbook is a commentary on the Code, and expands on and interprets its provisions.
Given that this CoP encapsulates so many of the issues which are central to Module 1 of this Inquiry, I will take time to dwell on it.
The preamble to the Code states that is provides the benchmark for ethical standards, protecting both the rights of the individual and the public’s right to know. Both the letter and the spirit of the Code should be fulfilled. Editors should co-operate fully with the PCC in the resolution of complaints. Any publication judged to have breached the Code must print the adjudication in full and with prominence, including headline reference to the PCC.
There are 16 separate provisions of the Code, 8 of which are asterisked, in other words made subject to the express public interest exception mentioned at the bottom RHS of the document.
Article 1 obliges the Press to take care not to publish inaccurate, misleading, or distorted information, including pictures. The Press, whilst free to be partisan, must clearly distinguish between comment, conjecture and fact.
Article 1 is not made subject to any public interest exception. Logically, there cannot be any public interest in publishing facts which are inaccurate.
Thus, if an individual complains that facts about him or her are inaccurate, and this complaint is upheld, then the press have an obligation to set the record straight, although they are accorded considerable discretion and latitude as to the means of doing so. This is separate from any issues which arise in the context of privacy, because in that context the individual may have a complaint even if the facts are accurate. However, the issue becomes particularly acute when an inaccuracy complaint is coupled with a privacy complaint, since the inaccuracy compounds the violation of privacy.
Article 1 also covers the publication of matters such as inaccurate statements of scientific fact. I have already alluded to this. Sometimes inaccurate statements of scientific fact are dangerous because they cause unnecessary public concern or prompt people to fail to take sensible health measures. The difficulty, here, is that the boundary between fact and opinion is very often hotly debated; but if it is clear that facts have been inaccurately stated, they must be corrected.
However, I should not be interpreted as encouraging an overly philosophical approach to article 1 of the Code. A robust and common sense approach is required, particularly where the rights of individuals are concerned. Demonstrable errors must be corrected and in a condign manner. Article 1(ii) of the Code expressly recognises this, as does article 2, but questions have been raised as to the extent to which organs of the Press honour this obligation and the PCC enforces it.
Article 3 of the Code, which broadly speaking mirrors article 8 of the Convention, is absolutely critical. Intrusions into a person’s private life must be justified, likewise must the taking of photographs in private places, in other words public or private property where there is a reasonable expectation of privacy. The handbook contains a useful section on what is meant by the concept of a reasonable expectation of privacy. Before publication, editors are required to decide whether the person was photographed out of the public view (i.e. not visible or identifiable with the naked eye to someone in a public place) and whether he or she was engaged in a private activity at the time. Thus, the taking of photographs of a famous person in private prayer in Notre Dame cathedral was deemed by the PCC to be private intrusion, whereas the photography of another famous person on a Majorcan public beach in the height of summer was not. As he will hear next week, the PCC has taken a different view in relation to a beach in Mauritius in low-season.
The term ‘justified’ clearly requires a balancing exercise. Factors to be placed in the balance include:-
- The complainant’s own public disclosures of information and/or the extent to which the information in question is already in the public domain or may become so.
- Detecting crime or serious wrongdoing.
- Protecting public health and safety,
- Preventing the public from being misled by an action or statement of an individual or organisation.
The public interest exception in the Code makes it clear that ‘there is a public interest in freedom of expression itself’. This of course is true, see article 10 of the Convention, but what this wording does not quite achieve is to make it explicit that one competing public interest must be weighed against the other. Otherwise, there is a danger that editors will simply identify the A10 interest, which by definition will always exist, and deploy it as a trump card. Nor is there any express reference in the code to the concept of proportionality or to the nature of the subject-matter, although it should be noted and emphasised that the Editors’ handbook stresses the importance of this, observing that it is here that editors often fall down.
The public interest exception raises a number of massive issues. I propose to list just some of them.
- Under the terms of the exception, ‘whenever the public interest is invoked, the PCC will require editors to demonstrate fully that they reasonably believed that the publication, or the journalistic activity undertaken with a view to publication, would be in the public interest’. This sentence has been well-crafted. It draws a helpful distinction between means and ends, between journalistic newsgathering methods and the end-product. Sometimes the complaint relates to both, but very often the focus is on the means. Secondly, the journalist is required to demonstrate that the activity would be in the public interest. In a case where newsgathering methods are called into issue, the appropriateness of the methods must be demonstrated before the event and not after. Lastly, the test is whether the journalist reasonably believed that publication etc would be in the public interest. Honest belief is insufficient, the belief must be reasonable. Journalists are already given a large measure of discretion here since two reasonable people may differ, and the question arises as to whether the test should be made more objective.
- Very often, the editor makes a rapid judgment under considerable pressure of time and commercial imperatives. These judgments are rarely recorded, still less second-guessed or vetted. The question arises as to whether as a matter of good practice these decisions should be entered into a contemporaneous written record, with the gist of the reasons given. In the absence of such a record, the PCC should be much slower to find that any justification exists.
- The public interest exception includes a reference to the public being misled by an action or statement. In principle, therefore, it might be argued there is a public interest in exposing any mismatch between an individual’s public persona and his or her private life: this is the hypocrisy argument I have mentioned before. One does wonder whether in maintaining such an argument those who propound it are placing too much weight on the terms ‘action or statement’. What may well be required is the identification of some express statement or specific action by the individual under scrutiny: implied mismatches may well be insufficient. In any event, another difficulty here, regardless of the view which might be taken on the precise language of the public interest exception, is that there is a range of factual scenarios, and each is capable of being treated differently. On the one hand there may be the celebrity who employs public relations consultants positively to depict a particular image or persona designed to enhance his or her standing and to earn more money. If evidence is unearthed to show that the cultivated image is false then, and depending on how that evidence has come to light, it is certainly arguable that there is a public interest in disclosure. On the other hand, there may be individuals who are celebrities simply by virtue of the fact that what they are good at doing interests the public. These people may doing absolutely nothing to cultivate a particular image of themselves, and they contend with some force that they are not public figures and in any event that their private lives are not for public consumption. And then there may be a range of cases which fall in the middle: role model cases such as Rio Ferdinand, and cases of those who find themselves in the public eye because they have chosen to place themselves there, e.g. politicians. If a politician makes an express statement about the virtues of family life, one can quite readily see that certain consequences will flow if that politician’s private life suggests adherence to different standards, but at this stage I am putting that sort of stark example to one side. In this difficult middle ground there are no hard and fast rules, and certainly no clear answers. Ultimately, it is a question of public expectation: do we expect our footballers to be role models (once we have taken care in defining what that term means), and do we expect our politicians to abstain from breaking the seventh commandment – or, more precisely, does the press have the right to publish a failure to abstain?
- Even this superficial analysis I have attempted demonstrates that the issues are subtle and complex ones. In terms of substance, the public interest exception probably needs to say more than it currently does. In his witness statement to the Inquiry Mr Alan Rusbridger, the editor of the Guardian, refers to the 5 Omand principles which have been incorporated into the Guardian’s own Editorial Code. We will be hearing about these in due course, but perhaps the key principle is this, that the methods used must be in proportion to the seriousness of the story and the public interest, using the minimum possible intrusion. Here, one is back to the distinction, which some would say is entirely a judgmental one, between investigative journalism properly so called on the one hand and the quest for gossip and entertainment on the other.
- The final massive question relates to process. Editors make these decisions and they are unaccountable, save to their proprietors and to their readers. If they fail, they will be sacked, but failure means not selling enough newspapers; it does not mean consistently making the wrong judgment calls in this context. Their readers may vote with their feet, as they might have done in the face of the Milly Dowler revelations, but extreme facts would surely be required. Editors are rarely slow to judge the private lives of others, but those whose privacy is claimed to have been invaded will want to know who is judging, controlling or peer-reviewing the editors. On rare occasions the civil courts have been asked to do so, but the drawbacks here have already been discussed. Beyond this, the custodians of the Press are the PCC, but the question has been raised as to whether they have consistently done enough to constitute a brake on editorial power.
My final point on the Editors’ Code relates to Article 10. By this provision, the Press must not obtain or publish material acquired by the use of hidden cameras etc, the interception or telephones or voicemails, the unauthorised removal of documents, or by accessing digitally held information without consent. This is one of the asterisked provisions, and is therefore subject to the public interest exception. The difficulty here is that many of the activities referred to are illegal under the criminal law: the RIPA for telephonic interceptions, the Theft Act for removal of documents without consent, and the Computer Misuse Act for the unauthorised access to digitally held information. The Editors’ Code does not make this clear, and in treating hidden cameras in the same way as telephone interceptions is in danger of misleading its target audience. Illegal conduct should be described as such so as to avoid any confusion.
I could have touched on other provisions of the Code, but in the time available I have been selective. My critique has been largely textural, and I hope a neutral one; I have confined myself to unremarkable matters. If the Inquiry wished to read a less neutral but some might say more trenchant approach, there is always chapter 14 of Media Law, written by Geoffrey Robertson QC and Andrew Nicol QC as he then was. This book chapter, which has been copied and exhibited to the witness statement of Mark Thomson, from whom we will hear next week, also contains a powerful assault on the PCC.
Overall, the Editors’ Code of Practice as a document enshrining good practice may well not require wholesale revision. I have indicated the respects in which it might be improved or clarified, and there may be others. That said, what a brief analysis of the Editors’ Code achieves is to focus the Inquiry on some of the key issues with which it will have to grapple. I have covered the issue of approach to and application of the public interest test. I have also mentioned the issue of process: of what happens when editors make arguable wrong decisions, and of how the record may be set straight.
The entity responsible for enforcing the Code is the Press Complaints Commission, which was set up in the wake of the Calcutt reforms in the early 1990s. Then, apparently, the Press was in ‘last chance saloon’, and many of the issues which will trouble this Inquiry were as it happens also addressed by Sir David Calcutt. Your Terms of Reference require the Inquiry to consider the extent to which there was a failure to act on previous warnings about media misconduct, and the response to Calcutt is one of the main issues here.
It will probably be more valuable, however, if I were to concentrate on the PCC as presently constituted and consider whether it ticks all the relevant boxes. The truth is that both the public and politicians appear to have lost faith in it. The reasons for this are likely to be multifactorial, but one important consideration is likely to be the PCC report in 2009 effectively siding with NI over its interpretation of the phone hacking scandal and criticising the Guardian for over-dramatising the issue. The PCC has since withdrawn that report, but the damage has been done.
CONSENSUS ABOUT THE PCC
A broad consensus emerged during the seminars as to the strengths and weaknesses of the PCC. It offers a relatively quick complaints and mediation service at no cost to the complainant. At its best, it sends out desist notices to newspapers warning them off potential breaches of privacy, it offers useful advice to editors and journalists working at the coal face, and in many cases it efficiently brokers compromises which may well be satisfactory to the complainant. This work is largely done behind the scenes and the public cannot therefore assess its value. The public hears far more from dissatisfied customers than satisfied ones, but this is the nature of the beast.
PCC APPEARS TOOTHLESS
However, the limited resources of the PCC mean that its role is largely reactive, not proactive, and that its ability to investigate and probe is circumscribed. It mainly operates by seeking to find middle ground, because it constantly needs to retain the support of the Press for what it does. The PCC cannot require a newspaper to print a correction or apology on the same page as the original offending article; it can advise and recommend, but there is no sanction for disobeying its rulings. Nor has the PCC power to fine newspapers or order them to pay compensation. All of this gives the impression that the PCC is operating largely without teeth, and that in the occasionally ruthless world in which it is forced to operate something altogether sharper is required.
Another obvious weakness in the PCC is that newspaper groups cannot be compelled to sign up to its scope, as it were, and in January of this year Northern and Shell withdrew its subscription to Presboff, and thereby from the formal jurisdiction of the PCC, with immediate effect. The Inquiry will need to consider Northern and Shell’s reasons for withdrawing before coming to any clear conclusions about the significance of this, but the very fact that an important newspaper group can extricate itself from the discipline of self-regulation without any fall-out necessarily calls into question the efficacy of the current system. Other publications have also put themselves beyond the PCC’s reach.
The time has come to attempt to draw some of these strands together.
Inevitably, the recommendations you will make as to the future will depend to some extent on the factual findings you make in relation to the culture, practices and ethics of the Press. Put bluntly, the fewer the problems you identify, the less it may be said that you need to recommend to change the status quo. Naturally enough, the converse also holds true.
But, regardless of the findings you make in relation to culture, practices and ethics, you will need to consider whether the existing system of self-regulation is fit for purpose on a number of levels. First, systems of regulation must command the confidence of the public, as well as being effective in regulating and improving behaviours. If the confidence of the public has been lost, changes may be needed for that reason alone. Secondly, systems of regulation must be responsive to rapid technological change and in our context to the formidable challenges presented by the internet and other similar means of mass communication. Thirdly, systems of regulation must continue to reflect the needs and expectations of the public, and the rights and responsibilities of the Press itself, and achieve the right balance between these competing interests. Most importantly, any effective regulatory system needs to deliver remedies which are efficient, quick and cheap.
Some have commentated that this Inquiry should not be beguiled into over-reacting to the NoW phone hacking scandal, for this straightforward reason. They point out, correctly, that phone hacking is and always has been illegal. It follows, they say, that the correct response to phone hacking is more effective enforcement of the criminal law rather than enhanced regulation of the industry. Additionally, it could be said that the appropriate response also lies in improving access to the civil courts and bringing newspapers to account in this way, as indeed will be happening in the civil litigation to be tried by Vos J in January.
But the fact that the criminal law is in principle involved is unlikely to be a complete answer to this issue. Improvements in the criminal law, in particular improvements in law enforcement, can and should be considered. However, white collar crime of this sort is notoriously difficult to detect, and even a wholly effective criminal law would be unlikely to supply all the answers. Improvements in the civil law can also be envisaged and effectuated, but here again any such improvements would be unlikely to be all-embracing. Overall, the Inquiry will be considering a tripartite system of regulation (criminal law, civil law and internal/external regulation properly so called), with perhaps the most important element being possible enhancements to the last of these.
The point can be made by looking at examples in other regulatory spheres. Dame Janet Smith’s Inquiry into the serial murders of Harold Shipman led to wholesale changes in the system of medical regulation. Whereas the immediate subject-matter of the Inquiry was the criminal acts of one GP, it was not seriously suggested that the only appropriate response to this should have been a series of recommendations limited to enhancing criminal law enforcement. The domestic regulator clearly had a role to play.
There is one additional, important point I should make about medical regulation, because it assists in defining the terms of the discourse. Registered medical practitioners are self-regulated, notwithstanding that the General Medical Council was established under statute and its Fitness to Practise panels operate within a legislative scheme. Thus, a self-regulatory system can be statute-based even if the regulator is not government run. As it happens we can see the same sort of model in operation in relation to solicitors and barristers.
In all of these examples, it should be noted that the subject-matter is the regulation of a body of professionals. Viewed in those terms, the immediate dissimilarities with press regulation are manifest, since professionals do not exercise A10 rights.
‘ENHANCED SELF-REGULATION’ vs STATUTE-BASED REGULATION
At your seminars there appeared to be little or no enthusiasm in those present for a government-run regulatory system (which would be a form of statutory regulation), still less for a system of state licensing of journalists. This lack of enthusiasm does not place the issue beyond the agenda of this Inquiry, but it is something which we have noted. The real point though is that the true dichotomy is not between self-regulation on the one hand and a government-run regulatory system on the other.
It remains to be seen whether the Inquiry will be attracted by a solution which entails what might be called ‘enhanced self regulation’ without any legislative changes, or whether the way forward will be statute-based regulation in some shape or form, whether standing in its own right or as part of a co-regulatory regime. The possible merits and demerits of the latter will be considered by the Inquiry in the context of the evidence adduced by OfCom and the BBC, and more generally.
QUICK, EFFICIENT, CHEAP
I mention for the third time now the need for a system of redress which is quick, efficient and cheap. From the perspective of the consumer, the attributes of such a system may include an enhanced right of reply, the mandatory correction of frank errors in a manner proportionate to the original, offending article, an enhanced role for the PCC or any successor body in adjudicating on complaints and compelling newspapers to record and publish its findings, and the setting up of some sort of tribunal, panel or assessor to provide binding, arbitral rulings in breach of privacy and similar cases. Some might say that prior notification is an essential ingredient of such a system, others might say that the perspective of the consumer is the wrong perspective, and that the Press should be allowed to continue their work in a free and open society.
Well, these are the sort of issues which are likely to occupy our time in the months ahead.
FAUSTIAN PACT WITH POLICE?
I said that I would touch on the scope and subject-matter of Modules 2 and 3 of the Inquiry. Module 2 concerns the relationship between the Press and the Police. The public perception, and we will have to investigate whether it has some grounding in fact, is that the Police are often paid by the Press in order to provide tips, leads, information and stories. Such payments, if made, are likely to be in breach of the Prevention of Corruption Act 1906 and now the Bribery Act 2010. But such payments may also be part of a wider picture, and a wider vice, namely the extent to which the Police acts collusively with the Press in failing to investigate the latter’s criminal wrongdoing, because there is some sort of Faustian pact or symbiotic relationship existing between them.
These are all important issues, but the extent to which this Inquiry will be able to penetrate institutional shields, palisades, moats and portcullises is questionable. It will be dependent on witnesses coming forward prepared to spill the beans, and as we know there is an ongoing Police investigation.
DOING DEALS WITH POLITICIANS TO GET FAVOURS
Module 3, the relationship between the Press and Politicians, will not be constrained by any ongoing Police investigation, and here the issues are as important as they are obvious. We are talking about the trade in influence and power, or at least that perception. The Press have sway over politicians to the extent that it is within their power to endorse particular political parties or causes, and certain newspaper groups are seen as floating voters. Accordingly, the existing political settlement encourages a state of affairs in which powerful institutions, and powerful men and women within those institutions, and wooed by politicians in order to retain or change their political allegiances, as the case may be. But what is the quid pro quo for this? On one level, it might simply be said that press proprietors and editors enjoy the wielding of an unaccountable power, and that this enjoyment is enough to constitute the price for the bestowing of favour. On the other hand, it may be said that for some the quid pro quo is a higher price, namely the bestowing of commercial favours by government.
CONCENTRATION OF UNACCOUNTABLE POWER
The unaccountable power of the Press, or of certain parts of it, is a consistent theme here. And if that power is concentrated in a limited number of individuals, the problem is capable of being visualised as all the more menacing.
This Inquiry will start by hearing evidence from the Core Participant victims, from a range of individuals from various walks of life who claim to have suffered from various manifestations of press misconduct and who wish to bring these matters to the Inquiry’s attention. Then we will move on to hear evidence from those directly involved in Operation Motorman and the work of the Information Commissioner’s office in this respect. Thereafter, the work of the Inquiry will branch out into hearing a number of witnesses who are critical of the culture, practices and ethics of the Press, before we move on to hear the substantial body of Press evidence which is likely to give us a different perspective. Then we will hear evidence from the BBC and other broadcasters, before concluding Module 1 with evidence from the regulators.
This undoubtedly a challenging programme, and I have not mentioned the witnesses for Modules 2 and 3.
I said at the outset that this Inquiry will set some unprecedented challenges. I do not believe that I was guilty of any exaggeration.
Robert Jay, QC, counsel for the Leveson judicial inquiry, Royal Courts of Justice, London.
Frank, Fearless, Frequently Flummoxed