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http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-5-December-2011.txt Monday, December (.am) LORD JUSTICE LEVESON: Yes, Mr Jay. MR JAY: May it please you, sir, I'm going to recall Mr Owens. What has been organised is that the core participants will have relevant evidence on their screens, which was provided to them under usual conditions of confidentiality on Friday. However, members of the public will not be able to see what are on our screens, and indeed the room has been cleared of all members of public and the press -- they're in the marquee -- save for Mr Owens and Mr Aldhouse, because we've taken the view that -- LORD JUSTICE LEVESON: Entirely. Could I just say that I intend to promulgate in writing the judgment that I gave on Friday. Revising it over the weekend, it occurred to me that I had not made it clear that copying details would not be appropriate and that the idea at the end of the Inquiry is that everything should be returned to the Inquiry. MR JAY: Yes. LORD JUSTICE LEVESON: But I will promulgate that revised ruling during the course, I hope, of today. MR JAY: So may I therefore recall Mr Alec Owens, please. LORD JUSTICE LEVESON: Thank you. MR ALEXANDER OWENS (on former oath) Questions from MR JAY MR JAY: You gave an affirmation or oath on Friday. You're still under that. A. Yes. Q. I'm going to ask for the various files by way of icons, if they could be put up on the screen, please. TECHNICIAN: You should have them, Mr Jay. MR JAY: They're not on mine. Is there a button we need to press? LORD JUSTICE LEVESON: Have you turned the screen on? MR JAY: Have they come up on your screen? A. No. MR JAY: Are they on anybody's screens? MULTIPLE SPEAKERS: Yes. LORD JUSTICE LEVESON: And mine. Have you turned it on? MR JAY: Yes. LORD JUSTICE LEVESON: The possibility is that you are governed by the same ... MR JAY: Ah, thank you. LORD JUSTICE LEVESON: I'm very grateful. Thank you. MR JAY: The next thing is whether I can operate it from my mouse, which I think I can. A. I'm still blank, sir. MR JAY: We're not okay. A. No, sir. MR JAY: Success? A. Nothing. LORD JUSTICE LEVESON: Let's get somebody with technical expertise to sort it out. I'll rise for a moment while that happens. Sitting here probably doesn't help anybody. So let's just get out and get somebody to sort it out. Thank you. (.am) (A short break) (.am) LORD JUSTICE LEVESON: Very good. MR JAY: Mr Owens -- LORD JUSTICE LEVESON: Can Mr Aldhouse see a screen? Well ... MR JAY: Mr Owens, when you gave evidence on Wednesday, you explained that original data in hard copy form seized following a search on March was, over the course of time, put by you and your team onto various Excel spreadsheets. A. Yes. Q. Are we looking now at about icons which constitute those spreadsheets and similar materials? A. Yes. Q. Can we just identify the nature of the material we are looking at? The icons entitled Green Book, Red Book, Blue Book and Yellow Book, are they the Excel spreadsheets of data extracted from different coloured notebooks which were seized? A. Yes. Q. And these are the notebooks which I now have in front of me? A. Yes. Q. If you look then at the files described compendiously as RP, RP, et cetera, are those the invoices sent by Mr Whittamore, trading as JJ Services, to various newspapers? A. Part of those are, yes. Q. And then the JJ Services invoices and spreadsheets, are they the invoices or remittances paid by the newspapers to Mr Whittamore, trading as JJ Services? A. They are, sir, yes. Q. Then to open one of the books at random -- maybe the Blue Book. Let's hope that -- A. Just double click on it. Q. What I'm going to do is just identify the columns without asking you to comment further. I'm not going to ask you to name any newspapers since I'm just doing this for illustrative purposes. Column A is the newspaper group? A. It is. Q. B is the newspaper within the group. C and D are the journalist's name, first name and last name. A. Yes. Q. Column E is the service requested. You told us quite a lot about this last time, Mr Owens, but we can see there various types of service. There's the area search, where you're identifying where someone lives within a particular area -- A. That's correct, yes. Q. Then the occupancy search. You're identifying who lives at a particular address; is that right? A. Like a voter search, yes. Q. The vehicle registration -- well, that one is self-explanatory. The "XD", of course, is ex-directory. Mobile conversion is deriving an address from a mobile number? A. Yes. Q. Conversion, or "conv", is an address from a landline? A. That's correct. Q. "F and F" is friends and family and "DIR" -- we don't see any of those on this screen but I've seen some -- is a directors search? A. That's correct, sir, yes. Q. If we scroll further to the right, you see the information getter's name, which is H and I. A. Yes. Q. I think we can name the first of these because I don't think it's his real name. Taff Jones. Do you see that? A. Yes. Q. You mentioned him on Wednesday. Is he the blagger that Mr Whittamore used in relation to British Telecommunications? A. He was very professional obtaining their telephone numbers from the various telephone companies. Q. Was that limited to BT? A. No, it was across the board, many companies. Q. Okay. I'll ask you a bit more about him later on? A. If it assists you, sir, that next name is actually Data Research Limited, which has been named. Q. Okay. Now, the subject names -- I'm going to be very careful with these because some or all of these are confidential. The subject, of course, is the target, isn't it? A. It is, yes, sir. Q. And to see how these play through -- I'm having difficulty getting it to scroll to the right, but I think I'm going to manage. If you look at row , that's a vehicle registration search? A. It is, yes. Q. You get the fruits of the search f that is the right way of describing it, under O to Q. A. Yes, that would be the VRM, the colour and the make. Q. I'm having difficulty getting this to work. I think it's fallen to sleep. Just hold on. A. If I can suggest, sir, if you just click onto one of the names and then use the arrows at the bottom to go up and down and across, it makes it a lot easier. Q. It's working now. You can see the details: the registration mark and the colour of the vehicle. It's probably all the information you can obtain. There are also various comments, in particular AA. A. You've gone past that. Q. I know I have. A. Yes. Q. Where are these comments derived from? A. They were from the original books. Q. From the original books? A. Yes. Q. Thank you. I'm going to alight on three entries in the Blue Book. First of all, row . Just bear with me, Mr Owens. If I use the right-hand scrolling function, I will lose control. This is just for purposes of illustration. You can see there this was a particular search. is a vehicle registration search? A. It is, yes. Q. There's also a phone number there. If one goes to the book itself -- it's not so clear, really, from the document, but the corresponding entry in the book relates to a telephone number in Glasgow and then it says: "Specific calls from another phone number." The area code is . I'm not going to read out the whole number. The request was for specific calls from that phone number between and in the evening, the date requested is not clear and the price was to . Do you know how you would obtain that sort of information? A. I can only guess -- and I think it's an educated guess -- they've actually got the whole of the subscriber's telephone bill, the subscriber's list, what calls they've made during that evening or during those times, and that would only be possible from the phone company. Q. That's the inference -- A. Yes, that's the way I would look at it. Q. I'm looking now at row . We can see the surname under -- A. -- oh, yes. Q. I'm not going to ask you to tell us what it is unless I'm told that I can refer to it. A. Yes, that's fine. Q. It's for Mr Sherborne to tell me whether he as an objection. No? Okay, I'm not going to refer to the name. You can see the first name is under L. Do you see that? A. Yes. Q. No need to read them out. Can you help us a little bit more about the request. What was being sought here? A. Right. Certainly the orange-coloured one would be an earlier search trying to find out where that named person or those named people -- which area they lived in. Q. Yes. A. The blue ones underneath, they would relate to the actual address, voter's check of the same people. Q. Thank you. So that's the coding you're using on this -- A. That's the colour-coding as the -- it was done. Q. Okay. A. If we go down, I think, just below that, you'll see ex-directory numbers for the two of those. Q. There are two ex-directory numbers as well, are there? A. Just underneath them, the blue coding. Q. Let's see if we can find those. A. There they are. They're the yellow ones. That's the ex-directory numbers for the addresses as listed above. Q. We're looking at -- A. There's -- yeah. Q. It's the yellow, is it? A. Yes, if you just go further along, you'll see a name there at the beginning. That's the -- no, the other way. Q. Okay, my apologies. A. That's the name of another private detective that actually obtained them, and they are the two ex-directory numbers for those addresses. Q. Thank you very much. If we go finally in this book to row , we will see that it's a criminal record check. I'm not going to spend further time on it. LORD JUSTICE LEVESON: Just try once more, Mr Jay. MR JAY: I'm getting slightly frustrated with it. LORD JUSTICE LEVESON: I understand that. Try and move up the bar. MR JAY: All right. LORD JUSTICE LEVESON: There you are. You've done it. MR JAY: Right. A. Yes. Q. We'll have to scroll further along, won't we? What is the green code? A. The green code is CRO, criminal records check. Q. We will see that in the narrative. I saw that, of course, over the weekend. We can see that in column E. And the targets -- A. Are named, first names and surname. Q. Yes, and it cost ? A. On that particular line, it's got "successful", . Q. Yes. I'm going to close this file and go to the Green Book. The methodology is exactly the same, isn't it, Mr Owens? A. Yes. Q. I want to find row . I'll be told whether there's a difficulty with the name here. There may not be on this occasion. Maybe it would be quicker if the technician were to do this for me. I want to scroll to the left. Exactly, thank you very much. Back to the left, please. That's lovely. Right, if you stop there. It's one of the witnesses who gave evidence. Mr Sherborne will tell us whether there's a problem, but what this shows is an occupancy search and two ex-directory searches. A. Can I just ask, whatever the technician's done, he's altered the colour so I can only see the first entry. Q. It should be a light blue. A. Yes, that's an occupancy search. Q. Also I think there are two ex-directory searches in the yellow? A. Yes. Q. At and . A. Yes. Q. Then there's an associated individual -- A. Yes. Q. -- at . A. That's an occupancy search followed by ex-directory search, telephone number. Q. Thank you. That cross-references with some evidence that we heard. But to be clear, the ex-directory searches were for landlines, not mobile phones? A. You'd have to go back and let me have a look. Q. We saw there ex-directory -- A. That's all ex-directory (inaudible), but if you go back to -- Q. So we have to go all the way to the left to see the phone numbers? A. I'll tell you whether it's a landline or a mobile. Yes, they're landlines. Q. We can see the part of the country. Okay, now the Yellow Book. Towards the end of the book, we have members of our national team. Not necessary to say which but it will be fairly obvious. , a whole load of ex-directory searches. There's one interesting line at , again, without identifying the paper. I don't know whether you can help me to get to row . A. That's it. Q. If we go to the far right, column AA -- hold on. . The request is: "Phone bill for June ." And the price was ? A. That's what it's got on there, yes. Q. But without knowing more about what the purpose was behind this request, we can't take it further, can we? A. The only thing I can say about that one is Whittamore did that himself, because that is a blag, as we put it, wherever it's white. I think -- could I ask you to go to the far end? There might be some reference where Whittamore's actually phoned up the telephone company himself and got it. If you could go right to the end. LORD JUSTICE LEVESON: The far right or far left? A. The far right as you're looking at the screen and just go back a bit. Little bit more. MR JAY: There's the information-getter column, isn't there, which we saw. I think it's a bit further to the left. A. If it's white, Whittamore's done it himself, but he hasn't -- he normally puts down "such-and-such a blag" along the line, but he hasn't on that one. Q. Okay. As I said, we can't begin to take that further -- A. No. Q. -- without knowing more about what the purpose was behind it. Can we look, please, at row . Thank you. This starts off as being a mobile conversion search and an occupancy search. A. Can you go right over to the left, because you go up to row F here. I need to go to row C. Q. Okay, so we can scroll ... A. That's it. Q. We take and together. is the mobile conversion? A. Yes. Q. And is the occupancy, but there's a mobile number there? A. Yes. Q. If one looks at the entry in the Yellow Book itself, it reads "Mob Conv", then a telephone number, then underneath that "Occ". Then it says: "Cancelled by charged." An address is given in brackets. Do you know what "cancelled but charged" means or why it might have been included here? A. No. Q. If we can go a little bit further down, however, to row , where we have a number of -- A. Family and friends. Q. Is that the magenta or a violet? A. Yeah. That's the colour-coding for family and friends. Q. It's clear from the original book that there was a landline number. It then says: "F & F on T-P." Presumably that's telephone? A. Telephone, yes. Q. Then you can see ten family and friends' numbers -- A. Can you scroll up a bit, please? Q. -- which we with see under column G. A. I can only see four. You'll have to scroll up a little bit more. No, scroll up, please. That's it. Keep going. That's it. Q. We can see them all there. The mobile number under F is the mobile number which had already been obtained? A. In fact, you can still see it above there, where it's been obtained, and then it's obviously appeared on the list of family and friends of whoever that number would be, the main number belongs to. Q. That's correct, and there's also a number, which may be Switzerland. It doesn't really matter. To the right, it says: "Charge ." And then: "for Taff agreed." It's unclear for that whether the is for all ten numbers or for each number, but it may well be for all ten numbers. A. It could be. We can't be -- LORD JUSTICE LEVESON: A name and then a price? MR JAY: That's right. You can't help us under column AB, above the -- because the inference you drew at the time, if you look at columns AA and AB, is that it was for each family and friend. A. That's what it looked like when it came out on this disk, but actually it's just one entry, , and it's "agreed for Taff", so we can't say whether it's or ,. at , I mean. Q. Although we do know that British telecommunications allow you family and friends' numbers. It's been their policy for as long as I can remember. A. Yes. Q. Under column AB, we see a and a . We don't know what those are. They might or might not be the ages of the individuals concerned. As it happens, if they are, the ages are not quite right, according to my research. That's probably as far as we could take that one. Sorry, I've missed out one point. If we could go back to the yellow and row to . , sorry. Go right up. Thank you. concerns a newspaper which isn't in this jurisdiction. There's certainly one CRO search there, isn't there? A. Yes. Q. Then there's an area search and occupancy search? A. Yes. Q. But if you look further down at to , there's a mobile conversion? A. Yes. Q. And then between and there are a series of searches? A. Yes. Q. Ex-directories, occupancies? A. All in the same name, yes. Q. And all in the same name. Okay. We'll move now to the Red Book. Go straight to row . The reason why I'm doing this is it cross-references with evidence we have heard. Nearly there. Right. Can we scroll to the right, please? We see some names under N. A. Yes. Q. Is there a problem mentioning these? I'm told there is no problem mentioning these. The surnames or last names are Grant and Hurley. A. Correct. Q. I have the original open in front of me. There was an area search for both Grant and Hurley? A. Yes. Q. South of the river, if I can put it in those terms. Then there's a vehicle registration search. Could you tell us a little bit about that because I know you investigated that? A. Yes. Basically we went to see Mr Grant at his offices because a number -- a VRM, vehicle registration mark, comes up against his name. As it turned out, he couldn't recall it and possibly thought he may have been seen in -- it may be a friend's car he's been seen in or was talking to somebody standing by that car, but he personally couldn't remember the car itself. Q. Yes, fair enough. Were there any telephone numbers, including mobile numbers, relating to Mr Grant? A. I -- I'd have to check the books but I don't think so. There may have been. Q. There are none I've been able to see. A. Okay. Q. To close this file and move now to RPand RP. These are the invoices out to the newspapers? A. Yes, yes. Q. They're put together in a fairly similar way, if not quite the same way, as -- A. If you could scroll to the left so I can -- thank you. Q. -- the books themselves. A. Right, yes. Q. We can see the methodology. The newspapers, the person who is to be invoiced within the newspaper, the service requested -- well, H is the date of the work, which we haven't covered before. The service requested is I. "Confidential enquiries", we see. Could you help us a bit about those? A. Not really. They were -- that's what they were, confidential enquiries. That's all we -- we got some hints off the comments mark in some of them. But no, in the main it was just "confidential enquiries". LORD JUSTICE LEVESON: That's the words written in the book? "Confidential enquiries"? A. Yes. Obviously we'd -- he wouldn't tell us and we never got an opportunity to ask any members of the press what they might have been. MR JAY: If one goes to column AE, the "Additional comments", one can see this in relation to some confidential enquiries quite a lot further down. A. I think you've gone past it. Q. I thought it was . We see a series of confidential -- those are the -- A. I think if you go back to where you were, sir, the confidential enquiries. Q. I think my note may be incorrect. It was quite a lot higher up, wasn't it, Mr Owens? Let me keep column AE in sight. A. Okay. Q. Right. And just scroll up. A. Where you are at the moment is actually referring to all the ex-directory numbers that were obtained. There we go. That's it. Q. These are some annotations. We see reference to some blags. A. Yes, where his company (inaudible) individuals. But most of the comments are contained in invoices, too. There's an awful lot of references to comments there which you could possibly associate with a story that was in the press. Q. We get some idea of the costs of each service from column AG. A. Yes. Q. See if we can summarise this, since I've looked at this carefully. The price for an occupancy search appears to be .-- A. That's correct, yes. Q. -- in general. The price of an area search is ? A. Yes. Q. The price for an ex-directory search varies a bit, but it's around ? A. That's correct. Q. Confidential enquiries usually have a special price? A. They can be anything. Q. The mobile conversion is ? A. Correct. Q. The vehicle registration search costs anything in between to . A. It went up. It was to Whittamore. It went up to when, shall we say, the DVLA source was neutralised, because somebody else was doing it then. Q. Thank you. From row , we have a series of searches which are all described as "occupancy" under column I, but were charged out at . A. Yes, this was -- Q. You heard me say that the occupancy was .. Here we are. We can see them now. What do you think or what do you know those to be? A. I know they're all ex-directory numbers. They were bundles of what I'd call documents he was going to hand in to his accountant for tax purposes, so he couldn't exactly put "XD" next to each one, so he just put "occupancy" there. If you go right to the other end, you'll see it's our friend Taff Jones, the expert in phone work, getting phone numbers, that he was paying it to, but they were more or less tax forms that he was -- Q. Okay. Looks as if one's getting a discount for quantity because it's down from the . A. No, that's what he paid to Taff. Q. Pardon me. A. Then he would charge the press . Q. Thank you, Mr Owens. A. So he'd make on every transaction. Q. Now the JJ Services invoice number -- there's a mass of data on this. I'd quite like to scroll so I can see the columns. Here we go. It's fairly similar, isn't it, Mr Owens -- A. Yes, very similar. Q. -- to the previous -- A. When you were saying before about comments, this particular document has most of the comments that you would associate with a newspaper story. Q. Yes. Let's see whether that is borne out. I think it will be. I imagine I might have noted my papers in the wrong place. Let's have a look at row and just see whether there are any interesting comments there. Yes, we are seeing some, I think. There's quite an interesting one at . A. B&B Sex Party. Q. Just gives us a flavour. Of course, we have no idea whether any of this ever found its way into stories. So a veritable treasure trove of information in all these files. What I've done over the weekend, Mr Owens, is check the electronic Excel files for the green, red, blue and yellow books respectively against the originals of the books, and the spreadsheets are borne out by -- it would be wrong to say an analysis of every entry in the books, but certainly dipping into numerous entries. A. Yes, sir. Q. What I haven't been able to do is cross-reference entirely or really significantly the audit trail through from, say, the Blue Book back into the RPand RP files and then into the JJ invoices and files. A. We managed to do that, but over much more than a weekend. Q. Yes, okay. Thank you, Mr Owens. I'm going to ask you now, please, if you can bring to hand a file which contains various legal advice. LORD JUSTICE LEVESON: Has that concluded the work in relation to this schedule? MR JAY: It does. LORD JUSTICE LEVESON: Is there any reason why we shouldn't now open up the proceedings so that those who are not in this room can see any document that is exhibited? MR JAY: There is no reason unless a core participant wishes matters to be explored as a result of the evidence I've adduced from Mr Owens. I've received no notification that there are -- LORD JUSTICE LEVESON: Well, does anybody want to raise any question which will require us to look again at these books which contain extremely confidential information? MR JAY: Well, the question I'm asked to put can be posed when the public is back in this room. LORD JUSTICE LEVESON: All right. MR JAY: I think we can therefore close these files, please, and perhaps pause for a minute or two to see whether there are people waiting outside. LORD JUSTICE LEVESON: Yes. I'm keen to admit the public to this room and to open up the document screens to the other room as soon as possible. Is that going to take a couple of minutes? TECHNICIAN: It will, sir. We'll have to have technicians to do it. LORD JUSTICE LEVESON: Right. I think we'll do that so that we've kept people out of the full detail for as limited a period of time as possible. I'll rise a moment while that is done. Thank you. (.am) (A short break) (.am) LORD JUSTICE LEVESON: Mr Jay, before you carry on, it perhaps is worthwhile just summarising that which you've just done, which for those who didn't have access to the data on screen must have been extremely difficult to follow. It's abundantly clear, looking at the electronic records, which you've checked against the actual documents, that Mr Whittamore had collected together a vast amount of personal data. The documents identify the names of titles and specific journalists at the titles apparently or inferentially making the request. It identifies the names of people from a wide range of public life and in the public eye, and provides addresses, telephone numbers, mobile telephone numbers and charging details for that information. It's not necessary to go into the identity of the individuals, save and except as you did in relation to Mr Grant, because of course a question was asked of him which created some doubt as to whether he had been shown information from this particular investigation -- it's clear that he was -- but it's not necessary otherwise to identify titles or names and certainly not necessary to identify the persons who were the targets of enquiry. In relation to some of them, it is absolutely right that there may well be a public interest justification in the enquiry. In relation to others, however, it is difficult, if not impossible, to see what public interest justification there could be. MR JAY: Thank you, sir. LORD JUSTICE LEVESON: Do you dissent from that summary? MR JAY: No. LORD JUSTICE LEVESON: Thank you. MR JAY: Mr Owens, I'm asked to pose this question to you: do you know how far back in time the books go? A. I think the earliest entry we found in the documents would be about , but it's my guessing that the books stretch from about the end of to the start of . Q. Mr Owens, do you recall going to see counsel in Birmingham on October -- A. I did, yes. Down in Birmingham, yes. Q. We have an attendance note of that conference. The last five numbers are . A. I'm sorry, could you tell me what the tab is? Q. It might be tab in front of you, but it's going to be put on the screen and you'll see it. A. Oh, yes, okay. Yes, that's correct. Q. I'm going to read out salient parts. It's a conference to discuss Operation Motorman and the instructions to counsel which have been sent. Can we look at Taff Jones, which is at the very bottom: "With regard to Taff Jones, he obtains BT ex-directory definitely numbers." Is that information you obtained, Mr Owens? A. Yes. That was found amongst the papers and later confirmed by Taff Jones himself. Q. Did you interview him? A. Yes. Q. "He explained that Taff Jones is a biker and an ex-soldier. The method he uses is by ringing from mobile phone numbers, which he changes every three months or so. There is one phone number with telephone billing contacting Whittamore and billing in reverse, Whittamore to Jones." So taking that in stages, who is he ringing from his mobile phone numbers? A. He's using the -- he -- normally BT or whichever phone company, purporting to be an engineer and getting the information he wants. And then, after he's got the information, he would ring Whittamore and pass him the details that he's asked for. Q. Thank you? A. So it's between the telephone companies and Whittamore, those particular phones. Q. If we go to the next page, which is , we'll learn some more at the top of the page: "It is clear, however, that he uses EIN numbers (an EIN number is a number given to a BT employee and has an as the prefix) ..." So it's a form of password; is that right? A. Yes. Q. "... in order to pretend to be an engineer to provide this EIN number on which there are no checks made." A. That's correct, yes. Q. Again, did you deduce that from the papers you seized -- A. Correct, yes. Q. -- and interviewing Mr Jones? A. Yes, sir. Q. Then it carries on: "Data Research Limited were the subject of the search warrant executed by Devon and Cornwall Police on which [you] attended on behalf of the Information Commissioner. As part of the documentation to which there is an assertion the privilege, another document found was a blaggers manual." A. Yes. Q. "The use of EIN numbers, a method of obtaining information links, was in it. Currently there is no evidence to link Jones to particular mobile phones, although Roy is able to say that he has phoned him on one of the numbers." A. Yes, that's correct. Q. We can look then under the heading "Gunning". We can see further information in relation to area searches, but let's look at what counsel advised under his name with regard to the prosecution of the press. This is what he said: "Although there is evidence to support a prosecution, a prosecution would not be considered favourable because of the financial aspect." A. Yes. Q. Put in other terms, what was he saying there? A. Basically said it would be too expensive. Q. Yes. Then counsel asked if there was any way in which friends and family details could be lawfully obtained and there is not? A. No. Q. Had you carried out any enquiries to ascertain that? A. Well, obviously we'd spoken to BT and asked them and they've said, "Not unless you know the people or you're one of the friends or family who might know them", but trying to get that sort of information had to be illegal. Q. Yes. Did you make similar enquiries of DVLA at Swansea? A. Well, yes, obviously we dealt with Swansea quite a bit. But there are legal ways of getting numbers -- or person -- the owner's details from Swansea, but that's conditional. It's -- you write in, pay a fee, but it has to be on one of their special reasons. Q. Yes. We've done some research on that and can submit a note together with policy advice from Swansea, which supports what you're saying. A. Yes. LORD JUSTICE LEVESON: In other words, if you've had an accident with car that's driven off and you've got the registration number, then that would be a reason to get -- A. I've done it myself when my daughter had an accident. Well, a car hit her when she was on the -- a nightclub car park, and the police couldn't help because it wasn't on the road. So that would be a legitimate request. MR JAY: Yes. That's clear. I'm going to ask you, please, to look at counsel's written advice, which is under tab , which privilege has been waived by the ICO. It bears the number . A. Yes. Q. This is advice that counsel gave, I think, on December , which was now nine months after the research, wasn't it, Mr Owens? A. December would be nine months, yes. LORD JUSTICE LEVESON: So just let's understand this. This is a barrister who has been instructed by solicitors acting for the Information Commissioner to advise on the material that you've obtained in relation to a potential prosecution? A. Yes, sir. LORD JUSTICE LEVESON: So his opinion is his opinion and there's a value for that purpose but none other. It's to help the Information Commissioner make a decision? A. That's it, yes. LORD JUSTICE LEVESON: Right. MR JAY: In paragraphs to of the advice, if I can summarise it, he was saying effectively there's enough evidence to allege a conspiracy to contravene Section of the Data Protection Act and the parties to the conspiracy, at least at that stage, were going to be Messrs Whittamore and Dewes, although we know subsequently that four individuals were on the charge or on the indictment relating to that conspiracy. I really want to turn to the second page, under the heading "Journalists". This is . This is what counsel says: "Having regard to the sustained and serious nature of the journalistic involvement in the overall picture, there can be little doubt that many, perhaps all, of the journalists involved have committed offences." A. Yes. Q. I don't think he should be interpreted as saying that in relation to each and every request, each and every journalist will necessarily have committed an offence. He's not going that far? A. No. Q. Then he says -- and it's true it's only counsel's inference from his reading of the papers: "The inference, overwhelming, it seems to me, is that several editors must have been well aware of what their staff were up to and therefore party to it." Really, I'm introducing this for the next paragraph: "I understand that policy considerations [it should say] have led to their view [it should be 'the view'] that enforcement of some sort rather than prosecution is the way forward in respect of the journalists/newspapers." A. That's what it says, yes. Q. That sentence may well be consistent with what you were telling us on Wednesday, Mr Owens, but apart from the meeting you say took place in mid-March , is there any further light you can throw on that sentence? A. The meeting which took place in mid-March? Q. This is the meeting which you told us took place involving Mr Thomas and Mr Aldhouse. Do you remember that? A week or so after the raid, which was on March. A. Oh yes. Nothing, really, apart from basically what I've already said, the fact that I -- it was my suggestion that we go up and down, right the way to the top and right the way to the bottom, and the evidence was there, when Mr Aldhouse said -- made those comments that he did, that they're too big for us to take on. Q. Whatever conclusions can be drawn from that sentence, we can draw them. What counsel goes on to say: "I understand and sympathise with that approach. This is, I believe, the first occasion upon which the scale of the problem has come to light and it may not be unreasonable to give the Press Complaints Commission the chance to put their house in order." A. That's what he's put. That's Mr Thorogood, I think. Q. We'll see whether that's reflected on Friday by documentation which has already been made available. Then counsel says: "However, the evidence of involvement [it should read 'is significant'] and often unpleasant offending is, in my opinion, clear enough in very many cases. You would be appropriate to caution identified journalists and their editors. I doubt whether a formal caution would be accepted as such but informal cautioning by letter with a suitable selection of (heavily edited) evidence attached should achieve the aim." Of course, by that point no journalist had been interviewed. A. No, this -- if you're talking about this being in December, we were stopped from interviewing them in April/early May at the very latest. Q. Yes then his final shot: "Those defending in the prosecution might seek to make capital from the fact that the journalists are not being prosecuted. The judge might also comment on the basis that the journalists are the ones (it seems) who created the demand for this offending. With this in mind, it is a sensible precaution to equip me at some point before trial with the detail of the reasoning not to prosecute. I may need to explain or even defend the decision to the judge." A. That's what it says there, yes. Q. Yes. Okay, I'm not going to comment further on that. It speaks for itself. Mr Owens, is there anything else you would like to say? You have expanded on the evidence you've given on Wednesday, we've cross-referenced some of that evidence with documents which are available, we've seen the underlying material now, and can draw the appropriate conclusions. Is there anything else -- A. No, I think everything's been covered, sir. MR JAY: Thank you very much. LORD JUSTICE LEVESON: Thank you very much for coming back, Mr Owens. A. Thank you. MR JAY: I'm moving on now to Mr Aldhouse. LORD LEVESON: Very good. A. Do you want me to move these? LORD JUSTICE LEVESON: Probably just leave them there and we'll see. MR JAY: Mr Aldhouse, if I could invite you to come forward, please. MR FRANCIS GEORGE BODEN ALDHOUSE (sworn) Questions from MR JAY MR JAY: Mr Aldhouse, I invite you to make yourself comfortable and then to provide us with your full name. A. I'm Francis George Boden Aldhouse. Q. You've provided us, Mr Aldhouse, with a short witness statement which is dated November this year. Is that right? A. That's right. Q. You've signed the statement and verified its truth. Is this your evidence? A. Yes, it is. Q. Can I ask you, please, about yourself, first of all, Mr Aldhouse. You are a solicitor by training; is that correct? A. That's right. Q. And you, in December , became the deputy to the first data protection registrar; is that right? A. That's right. Q. Is the data protection registrar more or less the forerunner or the then incarnation of the Information Commissioner under the Act? A. The then incarnation I suppose is the right way of putting it because it's the same office. They just changed the name by statute. Q. Right, and what happened was the Data Protection Act came into force on March to bring domestic law in line with the European directive and at that point you became the deputy -- is this correct -- to the Information Commissioner? A. That's right. Q. And you stayed as such until your retirement -- is this correct -- on January ? A. That's correct. Q. Can I ask you a general question, please, about the criminal law before the Data Protection Act comes into force. We know what Section says, but is this right, that the first criminal offence was introduced in by way of amendment into the Data Protection Act ? A. Yes, that's correct. There were other sort of administrative criminal offences, but so far as this sort of activity is concerned, it was the Act that made the difference. Q. Can I ask you, please, a question on Section of the Data Protection Act . I don't know whether you have that to hand, but you probably know it off by heart. A. Not by heart. Q. This creates the offence of unlawfully obtaining a sector of personal data. Under subsection : "A person must not knowingly or recklessly ..." There are two limbs there and "recklessly" will be a subjective test of any criminal statute, won't it, Mr Aldhouse? "... without the consent of the --" LORD JUSTICE LEVESON: I think there's some objectively there as well. MR JAY: Yes. One would draw inferences, most definitely. I'm just interested about (a) and (b), because there may be a difference of view about this. Under subparagraph (a): "... obtain or disclose data or the information contained in personal data, or (b) procure the disclosure to another person of the information contained in personal data." Now, if we're looking at the position of a journalist -- or it can be an insurance company or anybody else -- does that fall within subparagraph (a), subparagraph (b) or both? A. I'm -- if you'll forgive me, my voice is going. I think I'm inclined to the view that it could fall within both. I think the fact that you use an intermediary to obtain the information doesn't mean that you have not yourself obtained it. Q. Yes. A. So -- and similarly, it could be said that you have procured the disclosure. I think it could be an offence under either A or B. Q. On reflection, if it helps, that's also my view. I might have said -- indeed, I did say in opening the case -- that a journalist would only fall within Section ()(b). Thinking about it over the weekend, I would respectfully agree with you. It probably falls within both. We know from other evidence that on March , admittedly some time ago, there was the initial execution of a search warrant for a search which led to Operation Motorman. Did you get to learn about it at the time, Mr Aldhouse? A. I cannot recall when I first heard about Motorman. You'll forgive me, but it's eight and a half years ago and memory fades and of course there were other things going on. No, I couldn't tell you exactly when I first heard about the operation. Q. In terms of your responsibilities at that time, Mr Aldhouse, was it part of your role as the deputy to provide direction to the head of investigations? A. Yes. What had happened was the previous head of operations and second deputy had retired in , and the head of investigations then reported to me. I don't think it would be right to say that I directed investigations in any way, but I supervised the person who ran the investigations department. Q. We heard who that person was on Wednesday, but could you confirm her identity? A. Yes. At the time we're talking about, it was Jean Lockett. Q. Yes. Were you head of operations? A. No. No. Indeed, I think, as I say in my statement, the focus of my work, certainly by that stage and in continuing years, was on policy work. Q. The evidence Mr Owens gave us on Wednesday is that a few days after the search -- so we are now in mid-March of -- there was an informal meeting involving you and Mr Thomas where Mr Owens gave an explanation of what he found. First of all, do you have any recollection of any such meeting? A. I cannot recall such a meeting. I wondered whether this was just because, you know, time passes and my memory had faded, so I took the opportunity of consulting my old -- or the print-outs from my old electronic diary, which I've kept, and I cannot find any such meeting in March , or indeed in April. Q. Is it your evidence that you simply cannot remember whether there was such a meeting or is it your evidence that you are fairly sure that there wasn't such a meeting? A. I think my evidence is that if there was a meeting, it would have been a very casual one and a very short one, and certainly not scope for a full briefing. If it had been a carefully arranged, lengthy meeting, it would have been recorded. I don't recall any such meeting and I have no record of it. Q. So that I put to you what Mr Owens' version is -- and we heard his evidence on Wednesday -- his clear evidence to the Inquiry was that it was you, Mr Thomas and he. He had carried out a cursory analysis of the material and was able to demonstrate an audit trail, as he put it, from the newspaper through the journalist to Mr Whittamore. The blagger was involved, the charging element was established, the invoices were sent out and the invoices were paid, so there was a complete picture which he wished to demonstrate to you and did. Do you remember anything about that at all? A. No. And indeed, the information I have heard and seen this morning is new to me. I had not had that set out in that way to me before. Q. Have you seen these books before, the red, yellow, green and blue books? A. I've certainly not seen the content. I can't say I've never seen the books because it's just possible if I was visiting Jean Lockett's office or something, someone might have said, "Oh, that's the Motorman books", but no, other than that, I have not seen those books before. Q. Was there anything in your office at the time which was as big or as important as Operation Motorman? A. From an operational investigations point of view, that was probably the largest investigation. Q. Were there discussions over the months between you and Mr Thomas regarding strategic decisions and policy decisions which would bear upon the future conduct of the investigation and the prosecutions? A. I don't recall any discussions. I do recall that Richard Thomas decided that he wanted to pursue the route of going to the Press Complaints Commission and writing to Sir Christopher Meyer, but I have to say I think that was Richard Thomas' decision rather than the result of some discussion. Q. I'm not suggesting, Mr Aldhouse, that you were party to any decision but were you aware, therefore, that a policy decision or a strategic decision was taken whereby the matter would be taken up through the PCC rather than criminal prosecution of the journalists? A. I certainly knew that Richard Thomas wanted to go to the PCC as a strategic approach. I don't think I knew that he had completely ruled out prosecution. LORD JUSTICE LEVESON: Would you expect to be involved in this sort of discussion when you're the deputy? This was a very substantial investigation. It was obviously taking up some time and really did hit some very important buttons, on the face of it. A. Yes, it did, but I was otherwise engaged. Half of my time I was in Brussels on article working party business or the third -- joint advisory authority business, so it might well be that -- I mean, no, it was the fact that things just have to happen in my absence. LORD JUSTICE LEVESON: Oh, I'm sure, yes. MR JAY: You were there for half the time, though, weren't you, Mr Aldhouse? A. I can't remember the amount of time, but I was there some the time, yes. Q. I think the point I was driving at has already been made, but isn't it a bit strange, Mr Aldhouse, that with the policy ramifications that this might throw up and the potential cost implications for your office, that you weren't at least involved quite closely in discussions with Mr Thomas regarding the strategic direction of Operation Motorman? A. What can I say? It's for the Commissioner to decide how he runs the office. If -- and it is worth bearing in mind, of course, that it is -- that the Commissioner is a one-man band and if the Commissioner decides to take a route, so be it. Q. Yes. So is it your evidence that the Commissioner decided to take a route -- and he'll tell us about that on Friday -- but you weren't involved really in any significant way in the discussions bearing upon the direction he might take? A. I certainly don't recall that, no, and I don't just think that's failing memory. Q. Had you been asked for a view by anyone, in particular Mr Thomas, what would your view have been in ? A. I think my view in would have been -- certainly if I'd seen the information, had it laid out before me as it's been laid out before you this morning, I think my view would have been: we really ought to find a way of pursuing this, this is a major exercise, I'm not at all sure that it's something that could be handled by just two people, an exercise that requires some sensitive handling -- because I think if you simply approach journalists, they are likely to say, "Why should we respond is to you at all?" So there would need to be some careful construction of the case and the investigation. I'm not quite sure whether we could have put together the resource to handle such an investigation. Not having been put in the position of taking the decision, I can't say how I would have handled it but I do think that -- yes, I do think there was a case for taking the involvement of journalists and newspapers further. Q. You weren't party, therefore, to a timorous approach which was dictated by two considerations: first, a concern that it would be rather expensive and you would be at risk as to the cost, of course, if the newspapers obtain their own legal advice, and secondly, that the journalists might put up difficulties in the way of further investigation? You weren't party to that sort of policy, were you, Mr Aldhouse? A. No, and if I might comment on the expense of prosecution, the practice of the office would be -- if faced with a very expensive investigation or prosecution, would be to approach the sponsoring department, the Home Office, then LCD, Ministry of Justice, and say, "Look, we might be at risk of considerable expense here. Will you stand behind this with grant in aid if necessary?" LORD JUSTICE LEVESON: Hang on. At this time, , we're talking about the Home Office, are we? A. I think we are. LORD JUSTICE LEVESON: Because the Ministry of Justice doesn't come on the scene until . A. I can't remember when responsibility transferred from the Home Office to Lord Chancellor's Department, but whichever sponsoring department it was. MR JAY: Did you apply your mind to these issues at all, Mr Aldhouse? A. In connection with this case? Q. Yes. A. No. LORD JUSTICE LEVESON: Is that right, Mr Aldhouse? You say in paragraph of your statement, in relation to the suggestion "We can't take the press on": "I don't believe I ever said anything remotely corresponding to this quotation. It does not represent my view then ..." A. "... or now." LORD JUSTICE LEVESON: That suggests that you did reach that view then. A. I'm sorry, I was responding to the question about expense. LORD JUSTICE LEVESON: I see. A. Had I applied to my mind to the costs of a Motorman prosecution? No, I was never asked to. But the question about "the press are too big to take on", simply not my view. Certainly not the sort of language I would have used, and I think I would point to the experience that Elizabeth France and I had in discussions with the media in , that we were quite happy to stand up to the media and try to negotiate with them. I wish I still had the copies of the press gazette articles roundly attacking Elizabeth France and myself. So I don't fear the media, but there are always other considerations. MR JAY: Did you see counsel's advice, the one I referred to, December , at the time? A. The first time I've seen it was this morning. Q. We know you were involved at some later stage. There was a conference with counsel on May , which is our document . A. Do I have that? Q. I don't know whether it is in those files but we'll provide you with a note of that advice. It's under our tab . We'll provide you with it now. LORD JUSTICE LEVESON: Tab ? MR JAY: Sorry, of the extra bundle of attendance notes -- LORD JUSTICE LEVESON: Yes, but I'm not sure that Mr Aldhouse was at that conference. MR JAY: No, but there's something at the bottom of the page I want to refer him to. LORD JUSTICE LEVESON: Right. So be it. MR JAY: Thank you. (Handed) Not a conference you attended, Mr Aldhouse. This is a conference which followed the hearing at Blackfriars Crown Court in April . So that you have your bearings in time, you obviously learnt of that very disappointing outcome at the time, didn't you? A. Yes. Q. Is it right to say that there was at the very least a measure of frustration and irritation within your office, probably quite understandably? A. I think that's right. Q. And is that a feeling or sentiment which you shared? A. Yes. Q. Were there discussions about it with Mr Thomas and the way forward? A. Well, there was certainly some discussion, the detail of which frankly I can't recall, but you rightly express the view held in the office, and that would have been the subject of discussion. But as I say, the detail of it I'm afraid I don't recall. Q. At the bottom of page : "JW [who is someone within your office] stated that the view of Richard Thomas and Francis Aldhouse was that if the only problem this case faced was the Blackfriars verdict or other sentence, then the view of the office would be to continue with the prosecution as it still would be within the public interest to proceed as regards the criminality of the remaining defendants." If this note is right, it indicates that you were involved, at least at this stage, in part of the strategic thinking regarding the future conduct of the Operation Motorman prosecutions; that's right, isn't it? A. Yes, but I say -- I don't recall the discussions but it might well be that Richard and I had talked about it. There was certainly discussion about the Blackfriars verdict, how disappointing it was, what way should we go, but I'm afraid I can't add to that. LORD JUSTICE LEVESON: Who is Janet Witkowski(?)? A. Oh dear. I'm afraid I cannot recall. LORD JUSTICE LEVESON: Sorry. MR JAY: I think all I'm gently suggesting, Mr Aldhouse, is this -- and it's probably fairly obvious now: we have possibly the most important investigation involving your office, Operation Motorman. It has very serious ramifications. It was clearly being ramped up at this stage. Mr Thomas had it in mind to make a report to Parliament shortly afterwards and he did. Surely you were involved, even in informal discussions with Mr Thomas, as to the direction your office was taking, weren't you? A. Well, I think they would only have been casual ones. Certainly, I have no recollection of -- I have no recollection of, for example, full briefing material on the basis of which one could take decisions. I simply was not involved to that depth. It might well be that Richard Thomas would have casually said, "We're thinking of going this way, does it make sense?" But I'm sorry, I was involved to a deeper extent than that. Q. In terms of important strategic decisions -- and there would be quite a few over the course of the working year of an Information Commissioner -- was it Mr Thomas' practice to involve you, at least informally, in such decisions? A. You mean over the whole range of activities of the office? It would depend. Activities were divided. I think I said I spent most of my time by that stage on policy matters, particularly European ones, and I had quite a considerable degree of independence within that area. I think that was probably the way we tended to operate. Q. So you don't think it's right that Mr Thomas discussed with you back in the right strategic approach to Operation Motorman, in particular whether it was correct or appropriate bring criminal proceedings against the journalists? A. I have no recollection of being asked did I think we should bring proceedings against journalists, and if I had been asked, I suppose I would have taken it in two steps. First of all, I would want to know that we had investigated sufficiently thoroughly to justify that, and then -- well, prosecution was normally left to the legal advisers to the Commissioner. I wasn't the Commissioner's legal adviser. I -- but I don't recall any discussion about should we investigate further. I -- no, I think any comment I made after -- would now be coloured by retrospection. Q. We know that the legal team, including counsel, were under the direction of a policy decision -- counsel's advice refers to policy considerations -- which amounted to this: that the journalists would not be prosecuted, indeed the journalists would not be investigated. Are you sure that doesn't chime with your thinking at the time, Mr Aldhouse? A. It certainly wasn't my thinking, and indeed, I would have -- no, if I'd been asked, I would have said we ought to look further. I'm sorry, you will have to ask the Commissioner -- or the former Commissioner for his views. Q. So in terms of Mr Owens' evidence, which we heard on Wednesday, what he attributes to you at the meeting of mid-March , you don't remember saying anything along these lines: "We simply can't take on the journalists, they're too big for us", words to that effect? A. I have -- not only do I have no recollection of saying that; it is simply the sort of thing I would say and, as I say, it does not reflect my views of -- or indeed my previous practice of dealing with the media. MR JAY: Okay. Thank you very much, Mr Aldhouse. LORD JUSTICE LEVESON: Could I just ask about that? You've mentioned something in . I don't really know what that's about. I appreciate it's going back in time, but could you just paint it in for me? A. Yes. In -- the framework directive '//EC was adopted in October , and it contains in article a provision permitting member states to adopt exemptions necessary to protect journalism and similar freedom of expression. We, the Commissioner and I, set about talking to media representatives to see if we could develop a consensus view about how that might be implemented in what became the Data Protection Act . I spoke to -- oh, I -- no, there was an individual who is well known for representing the public affairs media -- I won't mention her name -- and to a number of the representative bodies, the periodical publishers and the national newspaper press associations and to groups of -- to groups of particularly media lawyers, and as I say, we -- the Commissioner and I were quite roundly attacked, not in the public print but in the UK Press Gazette, and it was very difficult to get the media to engage with the fact that here was a directive which said that it was, at least in part, to protect the rights to privacy and there were exemptions and how should though exemptions be -- how should they be deployed, how should they be enacted, and there was -- I recall quite clearly one occasion, a meeting of media lawyers at DJ Freeman when they still had a big media practice. One lawyer stood up -- perhaps I ought not to name the newspaper he represented -- and said that I was simply wasting my time, that it really wouldn't matter, that the newspaper proprietors would ensure that the legislation was enacted to suit them. So I -- yes, those things do stick in my mind. LORD JUSTICE LEVESON: That's rather interesting, isn't it, because they were joining battle with you. A. Yes. LORD JUSTICE LEVESON: The legislation was then passed. A. Yes. LORD JUSTICE LEVESON: And here, within five years, you had on your desk -- perhaps not you personally, but the Commissioner's office had on their desk monumental potential breach. I'm just trying to think how that chimes with your memory. This was precisely what you'd been talking about seven years before, the problems that the European directive would generate. It was being ignored. A. Let me see. I -- there are two elements to the legislation. There's the enforcement powers of the Commissioner and they are hedged around with lots of complex procedure to make it very -- well, actually to make it rather difficult for the Commissioner to take enforcement action against the media. But I think yes, you are right that the sort of information that was exposed this morning certainly indicates the -- what should I say? -- conflicts between media practice and classic data protection, yes. LORD JUSTICE LEVESON: Was Mr Thomas the Commissioner at the time? A. Oh yes. Sorry, not in , no. That was Elizabeth France. Elizabeth France retired in . Richard Thomas became the Commissioner in late . LORD JUSTICE LEVESON: But does it not chime some memory with you -- and I appreciate it's a long time ago -- that here was something which had happened which actually you'd gone through the mill with those years before, and here it was coming back to demonstrate the accuracy of the perception that you then had? A. I think that's why I said to Mr Jay that had I been asked at the time, my view would have been we should at least have pursued investigation of journalists. LORD JUSTICE LEVESON: I mean, how big is the office of the Information Commissioner? There's the Commissioner, there's you. A. Yes. LORD JUSTICE LEVESON: There's the number two -- A. Well, there are, of course, two deputies. LORD JUSTICE LEVESON: Yes. A. Well, the total staff now, of course, is about . LORD JUSTICE LEVESON: But what was the senior staff then? A. Myself and another deputy. One, two, three, can't remember, four assistant commissioners. Several -- then the -- what are we talking about? A management team of -- I'm trying to think. It would have been the -- possibly or a dozen very senior people. LORD JUSTICE LEVESON: Okay. You've now seen this material laid out. A. Yes. LORD JUSTICE LEVESON: You've seen the detail that it contains and the names and all the material that was documented at the time. Are you surprised you weren't asked and there wasn't a management discussion about this? A. Am I surprised? I'm disappointed. Not necessarily surprised. I know that there was, because it's in my diary, a -- what must have been a fairly substantial briefing session in August . LORD JUSTICE LEVESON: Yes. A. And I was on leave that week. My diary shows it. I -- well, yes, I'm sure in retrospect it would have been -- one could well say: wasn't this big enough for the whole of the management team to be involved? LORD JUSTICE LEVESON: Not least because you'd gone through the battle those few years before, so you knew the history. A. I certainly had views, anyway, yes. LORD JUSTICE LEVESON: I'm sure, yes. Thank you. MR JAY: May I ask a few more? LORD JUSTICE LEVESON: Yes. That's the process of inquisitorial proceedings, Mr Jay. MR JAY: Paragraphs and of your witness statement. Let's just get a clue what your thinking might have been. We need to throw ourselves back, don't we, to and ignore your thinking today. If you look at paragraph , you use the present tense: "My approach to taking formal action against the media is as follows." Can I just clarify your use of the tense. Are you saying that's your approach in November or was that your approach at all material times when you were the deputy? It's the latter, isn't it? A. I -- so far as I can tell, it is an approach I would have taken at the time, it's the approach I've taken for a long time, but memory plays tricks, so you will forgive me if I'm being cautious. But it is certainly -- perhaps because of my dealings with the European institutions, this sort of approach is one which I have held for a long time. Q. You say then in the next sentence: "The Commissioner has strong powers, which should be used in relation to the media with particular discretion." A. Yes. Q. You refer to Article , et cetera, et cetera, and at the end of this paragraph you say: "The pursuit of individual journalists could have a chilling effect on those rights." A. Yes. Q. Aren't you telling us there that that would militate in favour of not pursuing journalists, or at least being very careful about doing so? A. Certainly about being very careful. I -- yes, this is a rather short statement and rather compressed. I don't wish -- I don't wish to speak up for or be seen to be speaking up for the practices that have already been exposed to the Inquiry, but I suppose I am concerned that if one talks about the press and journalism generally, that you shouldn't catch up the innocent along with the guilty. I have a particular concern because of meetings I've attended and things that have been said to me about consequences for local newspapers. I mean, if I have an anxiety, and the effect -- the problem of a chilling effect, it's for the Gloucester Citizen, the Oxford Mail, the Farnham Herald and the Nutsford Guardian, not the Sun and the Daily Mail. LORD JUSTICE LEVESON: But that wouldn't be to permit them to breach Section , would it? A. Um ... LORD JUSTICE LEVESON: What you're concerned about is the viability of local newspapers providing a local service for the local communities, I assume? A. Yes. But local newspapers have been concerned about the way that, for example, defamation has been used to put them in some financial difficulty, and I wouldn't want -- I wouldn't want a data protection legislation to simply be another rod to beat their backs with. LORD JUSTICE LEVESON: I'm sorry, Mr Jay. Has any local newspaper ever suggested to you that they were concerned that Section of the Data Protection Act was going to cause them difficulty? A. Not in so -- no, because the time -- my discussions predate that. I'm thinking back to my discussions in on how one might implement article of the directive, and certainly concerns were expressed to me then about -- I have a particular meeting in mind and certainly concerns were expressed about the fragility of local newspapers and the legal threats they felt they were under. MR JAY: Operation Motorman wasn't involved or concerned with local newspapers, was it? A. No, absolutely not. Q. Can I look at the practical issues you raise in paragraph , please. You set out what the section provides. In the second sentence: "There are practical challenges in the investigation of the involvement of individual journalists in such cases in demonstrating ..." Then you make three points: "... first the degree of knowledge on the part of the individual journalist ..." That you can find out just by interviewing them, can't you? A. I think that takes me to the third point. Q. Which is what? A. Which is: why should a journalist respond to our request for interview? The Commissioner has no power of arrest, has no power to compel people to speak to him. These -- we would be seeking to interview journalists presumably as prospective defendants to a criminal action. They would have to be cautioned. A well-advised journalist would simply say nothing. Q. Let's explore that, Mr Aldhouse. Just cherry-pick, as a starting point, the very best cases: the CRO cases, of which there aren't very many, but you could take a sample, and the family and friends cases. The Information Commissioner's office would then make a request to interview the individual journalists and possibly the individual editors, having pointed out, as must be obvious, that there's a strong prima facie case which needs to be rebutted. Are you saying that practical obstacles would have been put in your way which were so great that your investigations might have been thwarted? A. Well, the investigations might have been thwarted but I think the tenor of your questions is: shouldn't you at least try? I think I agree with that. LORD JUSTICE LEVESON: But actually, they wouldn't necessarily be thwarted because if you have a paper trail that takes you from the journalist on the one hand to Mr Whittamore on the other and all the material, as you've now seen, which you've explained you hadn't seen before, if he says nothing, then the prima facie case there stands unrebutted. A. Um ... I wonder whether -- well, let me accept that the paper trail is sufficient and complete. In that case, you would be right, and then it's a question of: is there a public interest defence? Now, I think I heard some remarks from you, sir, earlier that -- how could this possibly be a public interest defence in these cases? I think it's worth bearing in mind that we're talking about , and I certainly remember discussions between senior staff and the lawyers in saying -- how can I choose my words correctly? The remarks of the Lord Chief Justice in A v B, the Garry Flitcroft case, were not helpful in -- now, admittedly we're talking about a case that could be distinguished. It was a civil case, it was interim relief, but remarks which suggested that there was a public interest -- there was -- there was a public interest in having economically viable newspapers, and for that they had to sell -- they had to print things that the public were interested in, even if it was tittle-tattle. Now, I know that in the Court of Appeal six months later, a different Court of Appeal slightly modified those used, but nonetheless it did rather discourage people like ourselves, senior staff in the Commissioner's office, from thinking there's a good -- you know, there's a possibility of prosecutions in this sort of case because we thought: well, the journalists have got a fairly easy route to establishing a public interest defence. The world has moved on, of course, and maybe the courts won't see it that way. MR JAY: But all this is demonstrating is that there may well have been a policy decision not to pursue the journalists because you're expressing views which are entirely consistent with the existence of such a policy decision. Isn't that right? A. There might well have been, but I didn't take it. I'm sorry, you will have to ask the former Commissioner, Richard Thomas. MR JAY: Well, I will. LORD JUSTICE LEVESON: Yes. I don't know whether, when you were looking at the screen, you could see some of the entries of persons, because if you'd seen the names of the people who were the subject of these enquiries -- friends and families, for example -- if you were going to say there's a public interest in looking at those, you might as well then say that data protection doesn't run to journalists. A. First of all, I don't say that there's a public interest defence. I'm merely trying to put myself back in how we reacted to certain legal decisions in , . And, well, there are those who think that the legislation was constructed to achieve just what you are saying. LORD JUSTICE LEVESON: Well, maybe I'll have to re-look at A v B. All right. MR JAY: I think that's as far as we can take it, isn't it, Mr Aldhouse? Thank you very much. LORD JUSTICE LEVESON: Thank you very much for coming. A. Thank you. LORD JUSTICE LEVESON: We'll have a few minutes' break. (.am) (A short break) (.Opm) MR JAY: The witness who was lined up for today is now going to be called tomorrow, so there is a small gap. Mr Burden will take a bit of time, but he's not available at the moment. There's one redaction, in any event, to his statement, which will be required, which we will organise over the next few minutes or so, but may we hear his evidence at o'clock? LORD JUSTICE LEVESON: I think that's probably sensible. Representations have been made to me that it is in the public interest that statements be published before the witnesses come to the Inquiry, and that therefore I should discharge the order that I made last Monday, which imposed a restriction on the publication of those statements. I will, of course, consider those submissions carefully and provide a reasoned response to them, but my immediate reaction is that if statements are released in advance, then the debate about that statement will start then, and far from having the effect of encouraging an appropriate and orderly pursuit of the Inquiry, it will mean that the debate will move through various stages before the witness ever gets anywhere near the Inquiry. MR JAY: Yes. LORD JUSTICE LEVESON: That's my immediate reaction, and indeed I was persuaded of that view by Mr Caplan. My immediate reaction when we'd learned that Mr Campbell's statement had been put into the public domain, was to say: right, let it go, and he made submissions to like effect to that which I've just summarised. I'm keen to know -- I appreciate nobody's had notice of this -- if anybody has any particular views on this topic or whether they want to speak up for removing the restriction or for supporting it? Mr Garnham. MR GARNHAM: Sir, we would certainly support your provisional stance. LORD JUSTICE LEVESON: It's certainly my present stance, because it's the order from last Monday. MR GARNHAM: Yes. We would encourage you, sir, to remain of that view. The orderly management of this Inquiry is something that affects the core participants as well as your team. It's inevitable that some statements come out quite late because the process is a rapidly moving one, and if we are to give any consideration to the potential effect of that so that we can make a decision as to whether representations need to be made, we need at least the time between the publication of the statement to core participants and the calling of the witness. If it's going to be released publicly earlier than that, that makes that task impossibly difficult. I would add, sir, that you are entirely right, if I may say so respectfully, that if you allow the publication of statements before the witness gets to that witness table, the matter will be debated in the press long before the evidence is tested here, and that ought not to be so. LORD JUSTICE LEVESON: Thank you. Does anybody have any other view? MR DAVIES: It's not another view, but I was hoping to echo what Mr Garnham says about timing. I could see an argument for another view, but it would require that the core participants had plenty of time to see the statement before it was made public, which would then be before the witness gave evidence, and the speed at which things are going at the moment simply doesn't allow that much time. LORD JUSTICE LEVESON: I understand that. MR SHERBORNE: Sir, I was simply going to endorse the approach that you're taking currently. As you know, in the past we've wanted all the statements to be ready as soon as witnesses were giving evidence. I know logistical difficulties have made that not necessarily possible in every case, but -- LORD JUSTICE LEVESON: I hope it's got better, Mr Sherborne. MR SHERBORNE: It's got better. Unfortunately, it's slightly too late for my witnesses, but I'm not going to carp. In terms of the approach from now on, we certainly would endorse the principle, sir, that you've adopted. LORD JUSTICE LEVESON: Right, thank you. Mr Caplan, this was your submission last Monday, so I suppose you will maintain it? MR CAPLAN: Yes, please. LORD JUSTICE LEVESON: Thank you very much. Anybody else want to say anything on the topic? Well, I shall consider the submissions carefully and I shall respond appropriately. Thank you all very much for your assistance. Let's wait until o'clock. Thank you. (The short adjournment) Transcript-of-Morning-Hearing-5-December-2011.txt
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-5-December-2011.txt LORD JUSTICE LEVESON: Yes, Mr Jay. MR JAY: The next witness is Mr Peter Burden, please. MR PETER HENRY BURDEN (sworn) Questions from MR JAY MR JAY: Mr Burden, please sit down and make yourself comfortable. A. Thank you. Q. Your full name, please? A. Peter Henry Burden. Q. Mr Burden, you've provided a witness statement to the Inquiry dated October . It runs to four pages. The version I have isn't signed, but is this your formal evidence to the Inquiry with one redaction I think we've made? A. Yes. Q. You tell us a little bit about yourself. You say that since you've been a freelance author. You've also produced several non-fiction titles, two of which are books: Fake Sheiks & Royal Trappings, and there's another book you've written more recently, How I Changed Fleet Street; is that correct? A. No, that isn't correct. That is another Peter Burden. He used to be the chief crime reporter on the Daily Mail and he retired quite a long time ago. Q. I was struggling a little bit with the photograph. It didn't bear much resemblance. A. That isn't my book. Q. My sincere apologies for that. I'll say nothing more about it. Can I ask you please about Fake Sheiks & Royal Trappings, which we've read and I referred to when opening this case. To be clear, in relation to the phone hacking issue, if I can describe it in those terms, can we be precise as to the direct contacts, if any, you've had with people. Have you spoken to any News of the World or other journalists about phone hacking, first of all? A. I've tried to, but without any direct result. I've spoken to quite a lot of News of the World journalists off the record, and some on the record, but none of them that I spoke to was prepared to make any firm statement one way or the other. Q. Right. A. And one or two denied it flatly. Q. Right. You also make it clear in your statement -- and I'm going to ask you to be careful of the answer you give. You've had limited contact with Mr Glenn Mulcaire; is that correct? A. That's correct, yes. Q. I'm not going to ask you specifically about what he told you, although it's clear from the third page of your statement the limit of your contact with him. Can I ask you then about your direct knowledge of other matters? First of all, in your book you refer to the Bob and Sue Firth story. Have you spoken to anyone directly about that? A. Yes, I did go down and see Mr and Mrs Firth in early , and discussed the whole case with them because I'd only touched on it lightly in the first edition, and indeed I had unfortunately placed them in Essex whereas in fact they were in Dorset. So I had to put this right and I went to see them and they told me in considerable detail the background to the events which subsequently came out where they were exposed, as it were, in the News of the World for running a bed and breakfast establishment that was of a naturist nature. A strange place to do it, in the middle of Dorset, but that's where they were doing it, and the News of the World had gathered that there were additional facilities or services, I should say, on offer there, and they sent down their reporter, Mr Neville Thurlbeck, to see what was going on. Q. May I ask you this question: have you spoken to Mr Thurlbeck to obtain his account of events? A. No, he was disinclined to talk to me when I asked him. Q. Are you aware of a Channel programme which deals with these matters or not? A. As a matter of fact, I'm not, no. I don't know what it covered and it was never drawn to my attention, so I'm afraid I don't know what conclusions it came to. When was that put out? Q. We're investigating when, Mr Burden. I just wanted to ascertain the sources of your information. You've kindly told us that you spoke to the Firths but you didn't speak to Mr Thurlbeck, although I think the sense of your evidence is that you tried to; is that right? A. Yes, I tried to talk to all these people, but none of them would return my calls, or simply put the phone down. Q. In relation to what you say about Mr Mazher Mahmood -- and I think there are two chapters of your book which deal with him -- aside from reading all the publicly available material, did you speak to anyone about those issues? A. Well, I spoke extensively to his brother, Waseem Mahmood, who is a broadcaster -- a well-respected broadcaster -- who set up radio stations and television stations overseas in Afghanistan and places, and he is not on good terms with his brother and was able to give me quite a lot of background to Mazher Mahmood's early background and his early life. Q. Okay. May I ask you -- and this is on the third page of your witness statement. You say at the bottom of the page that while preparing a second edition of your book, you were approached by two former News of the World photographers, Mr Steve Grayson and Mr Ian Cutler, who provided graphic examples of stunting, which is faking photographs, and, in Mr Cutler's case, of simply inventing and casting stories for the paper in conjunction with journalists. Is that information they freely gave to you? A. Yes, yes, and indeed Steve Grayson has outlined some of this in a book of his own, which is listed at the back of my book, which you can find, which he had published a couple of years ago, and it's called -- Don't Ask, Don't Get, it's called, by Steve Grayson. He has outlined a lot of that, but I also had several meetings with him in which he gave me further detail. Q. Can we have a sense of the dates we're talking about here when Mr Grayson and Mr Cutler were operating, as it were? We're talking about some time ago, are we not? A. Yes, we are. Ian Cutler was operating in the s and s with a well-known journalist at the time called Trevor Canson(?), and they certainly, according to him, would go out and find circumstances that they thought might make a good headline, like dole cheats or rent boys at the YMCA and so on, and they'd just get a chum and photograph him outside the YMCA and make the story up, and as long as, you know, it was sufficiently interesting and titillating to the readers -- or they thought it was -- it went in, according to Ian Cutler, who's also written a book, if you could call it that, which is called The Camera Assassin, in which he recounts many of these events. How truthful all the accounts are I wouldn't like to say, but I'm sure some of them are. Q. And Mr Grayson? What period of time are we -- A. He was operating in s, I think up until about the end of , I think, that he eventually was dismissed and he did go to a tribunal and lost, actually. He was dismissed, he claims, for, he felt, obeying orders, producing a picture of the Beast of Bodmin when there wasn't a beast and he simply took a picture of a puma in Ilfracombe zoo and took the bars out of the shot and submitted it, and the News of the World, then edited by Rebekah Wade, I think -- or she might have been deputy at the time; she was deputy at the time, but on her own -- was very keen to have it, and then of course he had to own up. He had to say, "Look, of course it's not a genuine shot", and as a result of that, they took proceedings against him, all of which are detailed in his own book and a matter of public record. Q. Yes, and referred to in your book. A. Yes. Q. It might be said that this is all of somewhat historical interest. If the last date is -- A. Mm. Q. -- what bearing does that have on the culture, practices and ethics of the press now? What do you say about that? A. The reason I included it was simply because I think it showed the development of that culture -- and first of all the culture of not having outstanding regarding for the truth -- as being something that was fairly long term within that particular newspaper and the idea of simply getting the story by any means, whether it was by stunting photos or entrapping people, was embedded in the culture, the ethos of the newspaper by then, which would seem to set the right sort of background for people to be prepared to take subsequent risks on things like phone hacking, which is what my book was -- what originally sparked my book, was the jailing of the two phone hackers. Q. Thank you. May I ask you some specific matters arising out of your book, if you don't mind? We have copied parts of it, but you and I are going to work from the second edition, which I think was published in or ? A. . , yes. May . Q. First of all, the quote at the front you haven't attributed. It's not necessary to do so now, but you name the former news editor in the book somewhere, don't you? A. Yes. Q. Can I ask you first of all, please, about page . You say, four lines down: "To the News of the World, anyone is fair game, irrespective of the hugely disproportionate damage its victim might suffer when set against what is often an entirely legal and completely private act where no one else is being harmed." Are you looking there at a particular point in time or are you looking more generally? A. I'm looking for -- no, I'm looking at it generally, that the notion that running a story that was going to do considerable harm to somebody, even though no illegality had been involved, was irrelevant to them. They didn't care how much harm they did. In fact, in many respects, the more harm they did, the better because that made the story bigger. I think that's the point I was trying to make there. Q. Then you give some specific examples. There's the Arnold Lewis story, which ended in tragedy. That was in ? A. Yes. Q. Then there's as Mazher Mahmood early sting, which you deal with at pages and following. This is a little guest house in The Paddock LA(?), I think. A. Yes. Q. It's probably not necessary to go into the detail of that. Mr Cutler and his photographs, that starts at page . You've told us something about the faking of photographs. Much of it is in the public domain. At the bottom of page , you rightly draw attention to the fact, as you've already told us, that the unfair dismissal claim was rejected in the employment tribunal -- A. Yes. Q. -- in East London. Bob and Sue Firth is page . Based in part on obviously the articles themselves and in discussions you've had with them. Missing out the sort of reverse sting at the end on Mr Thurlbeck, which the Inquiry isn't so much interested in, what in a nutshell was that story about? A. That was simply a case of people at the paper, probably Thurlbeck himself mostly, identifying that here was a possibility to go down and write a piece about unusual activities or comparatively unusual activities down in the Dorset countryside, and presumably -- he didn't have photographs -- he didn't have a photographer with him, so presumably he was just going to come back and write the story up and did come back and write the story up with photographs of the house and explain what he'd been offered when he got there and what he'd done, although subsequently he didn't in fact tell the whole story, as subsequent events showed. But it was a very run-of-the-mill smut story, as far as they were concerned. It was something that would probably end up on page or , not a big story, but another story of sexual misbehaviour in a slightly unlikely spot, which is the kind of story they like very much. They're very keen on sort of rural smut, for some reason. Q. You point out at page that there were various inaccuracies in the story on top of that? A. Yes, there were, because -- yes. Q. And some of the detail we don't really need to know, but I think -- A. Quite. I think basically it was just embellished and added to in a way to make the story a bit stronger than it already was, which again has turned out to be, as I've found, fairly standard practice. You put in anything extra that you think is going to make the thing look ripe that you don't think is going to get you into trouble. Certainly, there's -- one statement which said "Bob hid in a cupboard while Sue romped with guests" was complete nonsense. He didn't hide in a cupboard at all. They told me it was a complete fiction by Thurlbeck and most of what he said -- most of what he listed weren't things that were going on at all. And, of course, at the end he said that he declined the offer of any further services, which turned out not, in fact, to be the case. So according to the Firths -- and my inclination was to believe them because my reading of them was that they were quite happy to say that they were running a nudist B&B and that people would wander around in the nude, and if they wanted to engage in sexual shenanigans with one another, that was fun, but the idea that there were sort of organised services being offered was Thurlbeck's fabrication. Q. Okay. May I deal with another matter, which is fully in the public domain, page . This is the Rebecca Loos story, which we all know about. Just two points on it, though, Mr Burden. You say halfway down page : "In , the News of the World was given an award for scoop of the year." And Mr Thurlbeck was, as it were, the recipient on behalf of the newspaper, is that right, and it related to this story? A. Yes, it was his story, yes. Q. Do we know what the sum was that Rebecca Loos was paid by the News of the World? A. We don't precisely, no. Several sums have been bandied around, but I've heard -- I'd heard ,and I'd heard ,, so I imagine it was somewhere in between, but as is often the case with this sort of payments, they tend to get blown up as the story progresses, but -- certainly Max Clifford told me she got a substantial sum for it but he didn't say what that sum was. Q. You had conversations with Mr Clifford about this but he was, as it were, loyal to the confidentiality of his client -- A. Yes, I interviewed Mr Clifford very early on in my researches for this book. Q. Might it be said that there was a interest in this story? A. I think there is a public interest in the way David Beckham plays football and performs as a captain of the team when he was. I don't think there's any public interest whatsoever in what he does in bed with anybody. I think that that's not what he's employed for, it's not what he's famous for, and I don't think it's anybody else's business. Unfortunately, the woman who he dallied with saw it, I guess, as an opportunity to make some money. Q. I'll come back to that issue, if I may. May I ask you about the chapters in your book which address Mr Mazher Mahmood, who we're hearing from next week. Your view, I think, is that virtually all of his stories are unethical. Have I correctly understood it? A. I'm not saying that all of them are, no. I think especially in the early days he was a fairly genuine reporter, but as times went on, it seems to me, having looked at a lot of his stories over a long period of time, that it slowly became easier for him to take the bare bones of a story, or the mere scintilla of a story, and find circumstances in which he could turn it into a much bigger story. The most obvious case was -- there were two obvious cases, specifically the Beckhams again. He claimed that they had foiled an attempt to kidnap Victoria Beckham. When it came to court, which it eventually did -- and I might say that quite a lot of people were in jail for quite a long time awaiting trial -- it turned out that there were no such case at all. These were a group of people who had discussed it and they had recorded -- Mazher Mahmood's agent provocateur, who was a chap called Florim Gashi, an Albanian who used to bring stories to him, to whom he gave ,quid for this particular one, recorded them in a club where they used to go and play snooker, saying, "Oh yes, I know what we could do for a bit of money, we could kidnap the Beckhams", in the same way that you might say you might win the lottery. I mean, there was no serious intent there at all. It was on the basis of that recording alone, which was entirely speculative and not at all serious and actually had absolutely no basis in anybody's real plans whatsoever, that the arrests were made and the case was brought. I mean, there was ultimately no evidence whatsoever of any kind of conspiracy to kidnap these people, which must have been frightening for the Beckhams themselves, because I think their children were involved, and frightening for other people, thinking -- every time there's a story like this comes out, they think, "Oh, this could happen to me", but it was based on nothing at all other than Mazher Mahmood's inventiveness. Q. You were going to mention one other story. That was the first of the two. A. There was another story about a material called red mercury, which nobody seems to know what it is, that was allegedly being imported by a wheeler dealer in London and was going to be used for bomb-making purposes. Well, the stuff was never found. There was no end-user. The Mr Big that Mr Mahmood was constantly writing -- all his stories seemed to feature a man called Mr Big, in this case a man from Saudi Arabia, which he quoted as being "a hotbed of Al-Qaeda", in order, you know, to suggest that it was a terrorist thing, and he explains that Mr Big from Saudi Arabia was also sympathetic to Muslim causes. Well, presumably, Mr Big, if he came from Saudi Arabia -- it is a Muslim area, so it's not unreasonable. But it's all these little weasel words that get inserted into the stories to give a suggestion of fear and possible danger, based in this case on absolutely nothing at all, and once again people were locked up, awaiting trial, on remand and the cases collapsed almost instantly. And yet no redress was put on the paper or Mazher Mahmood himself for this tremendous waste of public time and money. And what is more, if I may add, at the same time, talking of that kind of thing, on many instances he's used people buying cocaine or being prepared to procure cocaine for him and he has produced funds, presumably from petty cash -- he's been asked about this in court -- to buy cocaine in order to propagate a sting so that he can then go back and write a stories about how Johnny Walker, for instance, or the Earl of Hardwicke, or several other individuals were prepared to buy him cocaine, usually under quite a lot of duress from the fake character that he was playing at the time. And curiously, he's never been charged with the illegal purchase of cocaine, although there are no legal grounds on which he can do this to perpetrate a sting. LORD JUSTICE LEVESON: What's the most recent of these stories, Mr Burden? A. Jodie Kidd, I think probably about three or four years ago, he persuaded to go and buy cocaine for him and that was put up as a video online. I think it might have happened since this book was last published. But you will find that there is a case where Jodie Kidd was set up to go and provide him with some cocaine. MR JAY: It's page of your book. A. Oh, it is there? It must have happened just before I published this edition then. I apologise. So that was in , I think. I can't recall if there have been more since then. Q. I think it's right to say, Mr Burden, that you remain sceptical about the Pakistani cricketers issue, which of course led to a conviction recently? A. Yes, it did. I'm puzzled by that. I took the view almost the minute I saw that video on their website that there was something odd about it, because I knew that the John Higgins story, the story of the snooker player apparently taking a bribe, had fallen down because the video evidence had been changed by Mazher Mahmood and his operatives, and that was acknowledged. What was odd about the video that was put up on the News of the World website was there were instances where you simply couldn't see the mouth of the man who was supposed to be doing the speaking. It was a fellow called Mazher Majeed, who was the agent between Mazher Mahmood and the cricketers, allegedly, and I opined that this video could easily have been made retroactively, and that's what it seemed to me. Having said that, Mohammad Amir, the youngest of the bowlers, has -- did plead guilty and I find that puzzling, but I dare say there's reasons for that. Nevertheless, the point is there was no actual crime there. There was nobody going to go and have a bet on those no-balls. There was nobody going to benefit from it. It was simply Mazher Mahmood setting these people up, putting pressure on them, through Mazher Majeed, to do these no-balls, if they did indeed do them -- I suppose I must accept that they've been found guilty and perhaps they did, but there was nevertheless no clear evidence that anybody was going to benefit from that particular activity, from that particular crime, so it was, in a sense, a non-crime. It was a non-story. The whole event was set up by Mazher Mahmood to get these people, or to show that these people were prepared to bowl a no ball when asked and they seem to have satisfied the jury that that was the case. I have to say that that didn't satisfy me. LORD JUSTICE LEVESON: Do you have any expertise in the area beyond having looked at the material? A. I wasn't able to look at the raw material because obviously they weren't going to let me have it and indeed I did put up this opinion online and was asked by Messrs Farrer to take it down, which I did, because I couldn't get my hands on the original material. But I would say that after the first time I made reference to it, some of the material did come down, the more doubtful-looking material. Whether that was a coincidence or not, I can't say. MR JAY: You weren't approached by the defence to assist them in that case, were you, Mr Burden? A. Sorry? Q. You weren't approached by the defence to assist them in that case, were you, for obvious reasons? A. No. No, I wasn't. I did speak to one of the defence lawyers and I did speak -- take opinion elsewhere and there was a feeling that possibly I could have a case, but without being able to get hold of the material, it was impossible to push it any further. LORD JUSTICE LEVESON: The problem might be that you're obviously entitled to your opinion about any of these matters, but your opinion would not be evidence in court. A. I understand. LORD JUSTICE LEVESON: Unless you're deriving it from some expertise, for example, in the examination of video film, which you're not suggesting you have -- I'm merely explaining it -- A. I accept that entirely and I did have two experts lined up to look at the material if I had been able to get hold of it, but I wasn't able to, not surprisingly. MR JAY: I've been asked to put to you this proposition, that the evidence you've just given might betray a certain lack of objectivity on your part because here you're adhering to a thesis -- no one's saying that you're not entitled to adhere to it but you are -- in the face of convictions reached after a fair trial by a judge and jury, and you're still not changing your mind, which might show that you're betraying a hostile animus towards the News of the World and certainly Mr Mazher Mahmood. A. Well, I wouldn't say that was entirely the case. I did say I accept that since they pleaded guilty, then perhaps that was the case. I am saying that from past experience of the way that particular reporter operates, it would have come as no surprise to me if it had been manufactured, but of course I have no evidence that it was. I'm, as it were, extrapolating from past experience and past knowledge of stories that he has produced, and indeed an instance where he quite specifically did alter some video evidence that went up online, which is clearly documented. So it was not an unreasonable supposition, but I completely accept that it is a supposition. Q. Thank you. Can I ask you, please, about some of your conclusions at page and following. Chapter . A. Mm-hm. Q. Four lines into this chapter you say: "There's a growing sense in Britain that newspapers like the News of the World -- by no means the only culprit -- are out of control and unaccountable because various bodies and laws in place which define the public interest and protect the privacy of both public and private individuals are manifestly too weak." So here is you writing about two or three years ago, and presumably your opinion hasn't changed much since, has it, Mr Burden? A. No, but I do detect that the general impetus is towards redressing this now, and presumably this is what this Inquiry is very much about and I have to say I'm very glad that that's the case, but certainly at the time, there were very fee people who wanted to see the PCC go then. A lot of people said, "Oh, we must keep the PCC, and we don't want a privacy law and we don't want statutory law." I sense that that has changed considerably in the last three years. Q. Can I ask you then about your ideas for the future? First of all, in relation to a privacy law, would you propose one? A. I think what it requires, if not a law about (inaudible), a definition of what -- first of all we start with the definition of what privacy is, which they have in France, and it's quite clear that it affects those aspects of a person's life which don't have anything to do with their public persona, and that seems to be perfectly reasonable and perfectly sensible. If that -- insofar as the Human Rights Act gives an individual a right to privacy under section , it seems very clear to me that we must understand quite what privacy is, which we don't here, we don't have a statutory definition of it, and it could be that that could be encapsulated in a statutory act that did protect people's privacy in the same way that other jurisdictions have. Q. Have you researched the French Civil Code? This is page of your book. It looks to the uninitiated as that the French Civil Code merely reiterates what's in Article of the Convention. A. They do go on to have a clear definition. I say the notion of private life has been developed through caselaw by the French courts which have held that: "A person's private life includes his or her love life, friendships, family circumstances, leisure activities, political opinions, trade union or religious affiliation and state of health." So in other words, they have developed a fairly clear understanding of what privacy is through caselaw, which we don't appear to have done in this legislature. Q. Do you happen to know whether the Civil Code has a public interest exception? A. Frankly, I don't, but I would hope that it retains here in the UK -- I'm a full believer of the right of investigative journalists to investigate criminality and corruption, and if that means that they must sometimes break these laws in order to achieve that result, I accept that that must be a defence for that kind of genuine investigative journalism in the case of, say, the Guardian and Jonathan Aitken, where they did break the law in order to get that evidence out, and papers like the Guardian do run serious investigations but they don't fall foul of these kind of libel and privacy actions that the News of the World and the similar newspapers do now. Q. In terms of the PCC, what are your proposals in relation to that? A. In relation to which? Q. The PCC. A. Oh, the PCC? I think that what the Colcutt committee concluded back in or that there should be -- a statutory body should be put in place. I think the politicians who were responsible for not accepting Colcutt's representation recommendations were politicians who were, frankly, frightened of the press. I think what's happened in recent months has shown that politicians need not be frightened of the press, and the fact that Parliament has been able to pull in the Murdochs and question them shows that these people are not invincible, and therefore I think there's a much stronger appetite for putting some kind of statutory body in control of the press, but at the time, of course, the press were all throwing their hands up saying, "You cannot possibly gag us", but at the same time nobody was suggesting that the defence of public interest should be removed, and as long as that defence is there, I don't see that there's any problem in saying to the press, "You cannot transgress this far into a person's private life unless you are uncovering a crime or deep corruption", and I think that's a perfectly sensible position to take, and -- but the press always complain very, very strongly at anything that suggests that they might be in any way hampered in doing what they consider their job, or in the case of the tabloid press, putting out stories that are of no public interest whatsoever but do regrettably sell newspapers. LORD JUSTICE LEVESON: It may be that although the public interest isn't necessarily defined by what the public are interested in, what the public are interested in is relevant to decisions being made by the press as to what they should or shouldn't publish. A. If you completely disregard any individual's right to any kind of privacy, yes. LORD JUSTICE LEVESON: I'm not suggesting you disregard it at all, but it's part of the equation, isn't it? A. I accept that, but all I'm saying is that this kind of privacy should only be breached where there's a very good reason for doing it. LORD JUSTICE LEVESON: And do you consider that the suggestions you've been putting forward, and indeed you identified in your evidence, I think, to Parliament, would itself have a chilling effect upon the press and would limit what they need to be able to do that is in fact in the public interest? Or not? A. I don't see why it should, because if they're pursuing a story which is clearly in the public interest, and any serious grown-up journalist knows what is or isn't in the public interest, they can take that risk on the basis that they will have that defence. So I don't see why it should be a problem and I only think that the -- all the press object to any kind of regulation because they don't want any kind of regulation if they -- if it can be avoided, which is understandable from their perspective, but we need protection as well. LORD JUSTICE LEVESON: I understand the point, but I'm not sure that to say that anybody can decide what's in the public interest and knows what's in the public interest will actually necessarily work because different people will have different views about what's in the public interest. A. I understand that, but I think we should have a clear definition of what is the public interest as well, and I've suggested that in this book, that we define what the public interest is so that we all know what we're talking about. MR JAY: I think you said a minute ago every serious journalist knows what it is -- A. Quite so, but sometimes they need reminding and I think if it was codified, it would make it easier. MR JAY: Mr Burden, you've given us a mass of helpful material in your book, which will be put to other witnesses. I'm not going to ask you to rehearse it now. You've given us the benefit of your views for the future, you've identified your source material. We're very grateful. I have no further questions for you. LORD JUSTICE LEVESON: Do you still maintain your suggestion, I think it was in your evidence, that -- in the memorandum you submitted to the Commons Select Committee on Culture, Media and Sport, that one of the potential sanctions for an independent press watchdog should be the loss of one or more days' publication? A. (Nods head). LORD JUSTICE LEVESON: I wonder whether that doesn't interfere rather too extensively with the freedom of the press? A. Well, that's been put to me and my answer to that is always that if they had a serious story to tell, they could always tell it the next day. If it's a question of finding a sanction that would actually have teeth and hurt them -- LORD JUSTICE LEVESON: I understand that. But I just wonder whether that doesn't risk crossing the line between what is an appropriate way to go and what then does interfere with the essential freedom that we all have to speak our minds. A. I think if they have a genuine opinion to give about anything along those lines, or, indeed, fact, they can always put it in the next day's paper. These things are not usually a matter of hot news, are they? And to lose a day's publication would cost them money at several different levels, and it would make them look very obviously guilty for their transgressions, so it had two effects, as far as I was concerned: it would, A, punish them financially, and B, it would draw the public's attention to the fact that they had transgressed badly. LORD JUSTICE LEVESON: How would that cope with what is the other enormous area that we've touched upon but not really investigated as yet, which is the Internet, which is very difficult, based in this country, to regulate if the server and ISP is abroad? A. That's a whole other colossal dimension, which no doubt in due course we're going to have to deal with. But that's not something I was addressing here. LORD JUSTICE LEVESON: No, I understand. I just -- I mean, you've -- A. Well, if it's possible, in due course, I suppose similar laws will have to be put into place as regards material put up on the Internet, but of course that's going to be a great deal more difficult, but again it wouldn't be a bad thing to establish even in the print press that people will have to pay for transgressions, so that when we start looking at it for online news, we're in a better position to start applying it there as well, if that becomes possible or is possible, which theoretically, I suppose, it will be in time. LORD JUSTICE LEVESON: Yes, the risk, of course, is that the risky stories won't be published in the print press but will simply go offshore and still cause all the harm that you speak of. A. In answer to that, sir, of course it doesn't to the same extent because in the end material in the print press is much more widely available and more widely read. It's not a question of everybody looking for one particular blog. There is the instance of the footballer where a lot of people did know, through the Internet, the name of the footballer who was, as it were, playing away from home, but actually I didn't, because I didn't look it up, as a matter of fact, I didn't particularly care, but an awful lot of people didn't know, whereas if it had been published on the front page of the Sun, an awful lot of people would have known. I think it will be a while before that kind of information will become quite so freely available, but I accept that, yes, of course, that happens, and I don't doubt that if stories are bumped off the front page through stricter legislation, they may well appear online, but they still won't have quite the same currency. And also it means that the legitimate broadcast media can't refer to them either until they're, as it were, public domain as they've been printed by a British newspaper. So the BBC and the terrestrial broadcasters, indeed, all broadcasters, can't pick up stories from the Internet and pass them on in the way they can with newspaper stories, so I don't think it's quite such a risk, but I accept that of course that will happen, but no doubt in due course some kind of restraint will be put on that. LORD JUSTICE LEVESON: Yes, well, thank you very much. A. Yes. LORD JUSTICE LEVESON: Thank you. MR JAY: Sir, that concludes the evidence for -- LORD JUSTICE LEVESON: Yes. We've had to put off our other substantial witness until later in the week; is that right? MR JAY: Until tomorrow. Tomorrow the running order, the four witnesses are Mr Atkins, Mr Nott, Mr Leigh and Ms Harris. The precise order is to be determined and will be organised in the next minutes. LORD JUSTICE LEVESON: Right. Thank you very much indeed. (The hearing adjourned until .am the following day) I N D E X MR ALEXANDER OWENS (on former oath) .................. Questions from MR JAY ............................ MR FRANCIS GEORGE BODEN ALDHOUSE .................... (sworn) Questions from MR JAY ........................... MR PETER HENRY BURDEN (sworn) ....................... Questions from MR JAY ........................... Transcript-of-Afternoon-Hearing-5-December-2011.txt
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-6-December-20111.txt Mr Leigh's references on page below to "arms company " was a slip and Mr Leigh has subsequently corrected this to "a construction company " as he intended at the time. Tuesday, December (.am) MR BARR: Good morning, sir. LORD JUSTICE LEVESON: Yes, Mr Barr. MR BARR: We have four witnesses today. We'll be starting in a moment with Mr Nott, then Ms Harris and then finally this morning we have Mr Leigh and this afternoon, Mr Atkins. LORD JUSTICE LEVESON: Very good. MR BARR: The first witness is Mr Nott. MR STEVEN JOHN NOTT (affirmed) Questions from MR BARR MR BARR: Take a seat, please, Mr Nott. A. Thank you. Q. Could you tell the Inquiry your full name, please? A. My name is Steven John Nott. Q. You've provided a witness statement to the Inquiry on a voluntary basis. Are you familiar with the contents of the statement? A. I am, yes. Q. Are the contents of the statement true and correct to the best of your knowledge and belief? A. They are. Q. We're going to take your statement as read, but there are a few questions that I would like to ask you to amplify what is in your statement and to summarise it. You tell us, first of all, that you are a member of the general public, currently employed as a delivery driver? A. I am. Q. Winding back now to , you tell us that there came a point in time when you discovered that it was very easy to access other people's Vodafone voicemail accounts? A. I did. Q. Could you tell us in summary, please, how you came to find that information out? A. I was a salesman for a food company based in south Wales. I used to have a lot of customers -- new customers ringing up my mobile phone and leaving messages with new orders on the phone as I was driving, and you couldn't take the orders and write them down as you were driving so they would be left on my voicemail until I'd stopped, to be able to write the orders down, the new customer's details, and ring the production -- the sales team up to put the production into order, basically, at the company. At the time this happened, the network went completely down and I was expecting a lot of new customers' orders that afternoon and I was in a bit of a panic trying to get -- waiting for the network to come back on my phone so I could access my orders so I could ring the customers up, basically, to put the orders in, and I stopped at a service station and I rang up the customer services at Vodafone to ask them how long the network was going to be off for because of this problem I had, and they explained to me that the whole of South Wales area was down at the time, it had been off for a few hours, and I told them the problem that I had. They said it's not a problem and explained to me that I could access my voicemail from any other phone, from a landline, from a mobile and so forth. It was new to me at the time, and I asked them how I would do it, and they described -- they explained to me that I would have to ring my own mobile phone number up, and when I -- when it went into the voicemail, said, "This is a Vodafone recall service for..." whatever number you were ringing -- after you'd hear that message and it said, "Please leave a number after the tone", after you'd hear the tone, you'd press number . This is what the customer service lady was telling me at the Vodafone customer services. She then said, "You'd have to enter your security number", and I didn't realise what she meant by that and I thought that was the security number for when I switch my phone on. At the time, it was new to me, and she said, "No, obviously you don't know what it is, so yours is still at default, which is ." And I had that moment where I thought to myself: "This is insecure", straight away because I then said to the lady at customer services: "If that's the case, I could ring anybody else's phone up using the same method and access their voicemail", and they said, "Yes, you can, but you're not supposed to." That was that call and I sort of got my orders and got the food to the company and went on with my business. Q. I see. You then tell us that you later tried to attempt to get Vodafone to change their system and to improve their security. Were you successful in that endeavour? A. Not at all. I made many attempts at ringing the Vodafone headquarters, which was in Newbury at the time, trying to get them to listen. They weren't taking any notice of me, and they kept saying to me: "It's not a problem. We can't see why there's going to be a problem. Why you are making so much of a fuss?" I kept being fobbed off all the time and it wasn't the sort of service I was expecting from them, but then again, who am I to tell a large company to change their system? Q. Then you tell us that you then decided to contact the press. First of all, you contacted a reporter called Oonagh Blackman, who was at that time working for the Daily Mirror? A. I did. Q. And that she decided to look into it? A. She did. Q. When you spoke to her on another occasion, she said that she'd tried it on a few numbers that she had? A. She did. Q. And that she had some of her colleagues ringing up publicly profiled people in and around London? A. All of her colleagues in the newsroom is what I was told. Q. Did you understand that they were ringing up these publicly profiled people to tell them that their voicemail was insecure? A. Yes. Q. And were you given to understand that there was going to be a story published? A. Yes, most definitely. Q. But in fact, as we now know, the Daily Mirror decided not to publish the story? A. That's right. Q. And you were told by Ms Blackman that she wasn't interested in it any longer; is that right? A. That's correct. Q. Did she explain to you why it was that they weren't going to publish the story? A. No. Q. You explain in your statement that Ms Blackman threatened you with court action if you told anyone? A. She did. Q. Told anyone what? A. Told anyone that I'd explained or showed them or told her how to intercept voicemail, because I then thought to myself that perhaps I shouldn't have told Oonagh Blackman at the Daily Mirror, so I then accused Oonagh Blackman her over the phone of possibly keeping the information to themselves for that purpose. Q. And you were paid for the information by the Daily Mirror? A. I was, yes. Q. You then tell us that you contacted Mr Paul Crosbie, who was at that time a journalist at the Sun? A. He was a consumer affairs correspondent at the time. Q. And you discussed the matter with him, didn't you? A. I did. Q. Did the Sun publish the story? A. No. Q. You've been subsequently in correspondence by email with Mr Crosbie about this matter, haven't you? A. I have. Q. And he's explained, hasn't he, that he tried to get the story published but that the newspaper decided not to? A. He said it was a good story and he didn't see why it wasn't published. He didn't understand. Q. He's also explained to you, hasn't he, that he wasn't asked to demonstrate -- A. That's correct. Q. -- the way of accessing voicemail to anybody? A. That's correct. Q. Then you informed New Scotland Yard, didn't you? A. I did. Q. And have you had any reply to your communications with new Scotland Yard? A. Recently or then? Q. Then? A. No. Q. Perhaps we can have a look on the screen, please, at the document which starts at unique reference number . This is a document which is entitled "The Truth About Vodafone". We don't need to go to the following pages, but in the following pages you explain what you had discovered. A. Yes. Q. Is this a document that you submitted to New Scotland Yard? A. That is -- it's the same document. However, that's -- that's the second document I sent out. Q. I see, so you tried twice? A. Yes. Q. Was there any covering letter to this second document? A. To the second document, yes, but not the first document. Q. I see. Do you have the covering letter to the second document? A. No. Q. Why is that? A. I didn't find it in my attic where all these documents were. Q. It was a long time ago, but can you remember whether or not you asked the police to do anything? A. No, it would have been a basic note to say, "This letter is what I discovered. Please look into it." It wasn't -- there's enough details in that document to explain what I'd discovered. Q. I see. Then you wrote to the Department of Trade and Industry? A. I did. Q. The Home Office? A. I did. Q. And Her Majesty's Customs and Excise? A. I did. Q. Essentially explaining what you had found? A. I sent them the same document. Q. Did you get a reply from any of those departments? A. No. None of them. Q. You go on in paragraph to list the further people that you informed. These included MI? A. Yes. Q. The National Council for Civil Liberties? A. Yes. Q. The Orange press office? A. Yes. Q. Is that Orange the mobile phone company? A. It is. Q. And what happened there? A. I spoke to a few of the mobile networks at the time and Orange were the ones that were interested at the press office, so I kept in touch with them about what I'd done, basically, what I was trying to do, what I was trying to expose. Q. I see. You then say you contacted ITN? A. Yes. Q. And did they take an interest? A. I spoke to Chris Choi, the consumer affairs correspondent at ITN at the time and he sent a film or news crew or some sort -- film or news crew, whichever -- to my house and filmed me in my back garden telling the story about the Vodafone security flaw, not the story about who I'd been to see. Q. I see. And was that broadcast? A. No. Q. Did they explain why that wasn't broadcast? A. No. But I was told to stop hassling them after I kept asking. Q. You tell us you also contacted One One? A. I did. Q. BT Cellnet? A. I did. Q. And the Watchdog programme? A. I did. Q. Did the Watchdog programme take an interest? A. I had a phone call back from them, but nothing came from it. Q. So now we come to BBC Radio Live and it's right, isn't it, that BBC Radio Live did take an interest? A. They did. Q. And that interest led to a short piece being broadcast, didn't it? A. It did. Q. On October ? A. That's correct. Q. And you've been trying to obtain a recording of that broadcast recently, haven't you? A. I have. Q. And is it right that although Radio Live could no longer find a copy of the broadcast, they did find a copy of the technician's transcript? A. It's part of the transcript. It's only the engineer's transcript, not all of the actual programme. Q. I see. That may well be enough for our purposes. Could we have up on the screen, please, the document which ends . Could we magnify the paragraph that starts "Time now for business", which is almost halfway down the page. Adam Kirtley is a reporter who was conducting the piece, wasn't he? A. He was. Q. And there was a representative from Vodafone involved as well as yourself? A. Yes. Q. And we see in the paragraph that's been magnified the way in which the piece was introduced, don't we? A. Yes. Q. If we turn over to page , we see in summary the way in which it was dealt with from Vodafone's side, albeit we only get a part of the conversation. Is it right that Vodafone's answer was essentially to accept what you were saying and to say that customers would be well advised to change their voicemail PINs from the default setting? A. That's right. Q. Thank you. The document can be taken down now. You contacted Mannesmann Dusseldorf, which is a company which was involved in commercial negotiations with Vodafone? A. I did. Q. And also the BBC, you tell us, filmed you in the Blue Peter garden? A. On Percy Thrower's bench. Q. I see. Was that piece ever broadcast? A. No. Q. You then go on to tell us about contact with the South Wale Argus (sic), and the South Wale Argus did print a piece, didn't they? A. It's the South Wales Argus. Q. Could we have up on the screen, please, . This is the article, isn't it? A. It is. Q. Could we magnify, please, in the left-hand column the paragraph which begins "Horrified"? We see that the journalist wrote: "Horrified Vodafone subscriber Steve Nott, , found that anyone can access his answerphone service and listen to his private messages ... helped by the giant network's own operators." And the article goes on, doesn't it, to explain your discovery? A. Yes. Q. Could we highlight, please, in the second column the paragraph which begins "He said Vodafone has millions of users". We see the paragraph: "He said Vodafone has millions of users and many of them will be MPs and high-ranking government officials, people with highly sensitive information at their fingertips." Was it a concern of yours that there might be security vulnerabilities for people who held sensitive information? A. Definitely. Q. Was that one of your motivations in trying to disseminate your discovery as far as you could? A. Definitely, yeah. Q. Then if we could magnify, please, the paragraph a little below the one that's presently magnified, which begins "The Argus put Mr Nott's claims to the test". Thank you. We see there that the Argus said that it put your claims to the test and by following your instructions was able to access Vodafone users' personal message service. They're careful to point out that they did it with permission, and they too appear to have consulted Vodafone, who confirmed that your information was correct, didn't they? A. Yes. Q. So is it right in summary to say that although some of your efforts to publicise the story fell on deaf ears, there was at least some publicity in the mass media in ? A. Yes. Q. You also informed your member of Parliament, didn't you? A. I did. Q. Your statement moves then to , as the phone hacking saga began to break as a major national story. I don't need to go to the details of your statement, but it's right, isn't it, that since then you've been in contact again with very many different bodies? A. I have. Q. And you have provided a witness statement for use in civil legal proceedings brought by others? A. I have. Q. We've been asking every witness who attends the Inquiry, Mr Nott, if there is anything that they would like to say to the chairman in relation to the future regulation of the press. It's an optional question, you don't have to answer it, but if there is anything that you would like to say to Lord Justice Leveson about future regulation, now is your opportunity to do so. A. I would like to say something, if I can, please, if that's okay. Do I need to stand up or sit down? Q. No, no, you can remain seated. A. As an outsider and nothing to do with the industry whatsoever, I feel I don't have the right to have any say about the future of press regulation, but I would like to add something if that's okay. It may or may not be relevant. When I was younger and went to visit my grandparents, I always remember my grandfather sitting at the dining room table picking horses from the Daily Mirror and carefully filling out betting slips with the day's selections. Meanwhile, my grandmother would be sat in her chair with her glasses on the edge of her nose, marking off numbers in the Sun bingo, even using her best bingo board to rest on. I regularly visited my grandparents and once I brought my nan a large pile of Sun bingo cards that I'd been given by a WH Smith manager. It used to take her hours just marking the numbers off, but it kept her happy and us too. My nan used to roll up the Daily Mirror sometimes to swat the cat. My grandparents always had a newspaper each back then. They must have been rich. We always had a copy of the Daily Mail in our house when I was growing up. I rarely saw my father reading it though, merely skipping through the news to the crossword. He never had time to read the news stories; he was just too busy. I never really noticed my mother reading the newspaper either. She always managed to complete the crossword that my father hadn't. You can almost sense the air of victory in the house about finishing the crossword that my dad hadn't or couldn't. I left home at and wasn't really a daily newspaper buyer. I thought newspapers were for crosswords, bingo, horse races and TV listings, but I still carried on buying the Daily Mail on Sunday because of its long-running TV guide and that's what I was brought up with. I never read the news pages, but I always did like the crossword and have a similar issue now with my mother. She seems to manage to complete the crossword after I've attempted and failed. Over the past ten years, we've bought the Sun newspaper for its Sun holidays promotions and regularly went on cheap holidays. I stopped buying that newspaper because my daughter once had a look through it and couldn't believe her eyes when she looked at page . She was shocked by it and I'd never encountered the subject of dealing with soft porn with my kids before. I don't have a problem with it but I had a problem with my daughter seeing it at the time. I don't buy the Sun any more for this reason. My next door neighbours always save their papers for me so I can use them to light my coal fire. So how could I give an opinion on freedom of the press and press regulation when I've been brought up by a family who used newspapers for other purposes than to read them? I'm just giving you an insight into our family as newspaper buyers. Thank you. MR BARR: Thank you very much, Mr Nott. I have no further questions for you. LORD JUSTICE LEVESON: Thank you, Mr Nott. It's quite clear this was a problem you identified in the late s and it's now come home for us all to think about. A. I'm very grateful. Thank you. MR BARR: Would you like to return to your seat, please, Mr Nott? A. Thank you. MR BARR: Sir, the next witness is Ms Charlotte Harris. LORD JUSTICE LEVESON: Thank you. MS CHARLOTTE ROSE HARRIS (sworn) Questions from MR BARR MR BARR: Ms Harris, could you tell the Inquiry your full name, please? A. It's Charlotte Rose Harris. Q. And your professional address? A. I'm an employed barrister at Mishcon de Reya. We're at Red Lion Square. Q. You've provided a witness statement voluntarily to the Inquiry. Are you familiar with the contents? A. Yes, I am. Q. Are the contents true and correct to the best of your knowledge and belief? A. Yes, they are. Q. We're going to take the statement as read, and as with the last witness I shall just alight on certain parts of it for clarification. You tell us that you specialise in media law, in particular defamation, privacy and harassment, and that you now represent a substantial number of phone hacking claimants; is that right? A. That's right. Q. You provide the statement to assist the Inquiry in understanding surveillance of you? A. Yes. Q. And also to assist us with the nature of press treatment of some of your clients? A. Yes. Q. Can we deal, first of all, with the surveillance of you. You've provided to the Inquiry an exhibit which contains documents, some of which were adduced in evidence last week when we heard from Mr Lewis. You have seen surveillance evidence obtained about yourself, haven't you? A. Yes, I have. Q. And that surveillance was of you and of your family? A. It seems that it was of me and my family and my two children and perhaps the people around us as well. Q. The contents of the reports you've seen, were they accurate in their summary of you and your private life? A. They were littered with inaccuracies, but certainly there was a mixture of information, some of which was correct, some of which was speculation and some of which just seemed to be made up. Q. You tell us that you first became aware of this in May of this year? A. Yes. Q. When a contact provided you with some of the documents that you now possess on this subject? A. That's right. The documents that I was provided in May this year in my view are not documents that were necessarily prepared by News International. That's not clear. They subsequently led on to the discovery of documents that were the surveillance documents that have been spoken about, so it's important to understand that there was more than one type of surveillance going on. Q. So the first document that you were handed, the one which you are not sure of its provenance, you took that to News International, didn't you? A. I did. I was given the documents. I looked at them. There were four reports. From the four reports, there was one report that focused on myself and other lawyers, and certainly looked like it had some surveillance material in it. There were three other reports that talked about News International generally, people connected to News International and also matters that, as far as I'm concerned, were pure speculation. Not about myself, but about many other people, which is why I was keen that those documents remained confidential. There was nothing to back up what was said in them. But when I saw these documents, I thought that it was important to take it to News International directly because I was able to -- I had a meeting set up with them and we obviously are in talks the whole time because we are in the middle of litigation -- and to ask them what they thought and whether they could assist in finding out what on earth had gone on. Q. You took them to Simon Greenberg, director of corporate affairs at News International? A. At the time, yes. Q. You are careful to tell us that you didn't take them to Tom Crone, who was head of legal at the News of the World at the time. Could you explain to us why you chose to go to the director of corporate affairs and not to Mr Crone? A. At the time I didn't know that Tom Crone had any involvement whatsoever in the surveillance or the commissioning of surveillance or any knowledge of it and I was certainly surprised to find out that there would be any kind of allegation in Tom Crone's direction. Obviously I'd worked opposite Tom in litigation for many years. However, having had a good relationship with Tom, he'd stopped speaking to me for a little while, starting from November the year before, and so that communication had stopped and I thought that as Simon Greenberg had come in and was dealing directly with these matters, and having had a meeting set up with him anyway, I'd go to who I thought was the most appropriate person to deal with it, and that seemed to be Simon Greenberg and not Tom Crone. But I had no idea that there was any involvement at that stage. Q. Was there anything which prompted this sudden ending of direct communication with Mr Crone? A. I'd been getting on extremely well, I think, as a claimant lawyer with the other side. I think it's very important, when you're fighting battles -- important battles for your clients, not to put yourself in a position that you've fallen out with the other side to such an extent that communication breaks down completely, and that's the basis on which I've tried to run as successful a practice as possible. And so for quite a long time during working on, for instance, the Max Clifford litigation, what had happened was I'd started to speak directly to Tom Crone because he was head of legal, and it meant that I could forego some of the lengthy correspondence and get, you know, straight to it. And we'd got on quite well and it meant that when other issues arose -- not to do with phone hacking but just the day-to-day kind of issues that you have as a media lawyer, somebody might telephone and say that there's an article about to go in -- I would phone Tom directly, and this was, you know, extremely efficient as far as working together. In November last year, it stopped completely and it was very sudden, to the extent that I would have been embarrassed, I think, to have phoned him out the blue, having not received -- not received -- not received any telephone calls returned and having stopped all correspondence. I didn't know then that there was anything in connection to me. I've only ever represented my clients in terms of privacy. Q. Am I understanding you correctly that there was no obvious reason why communication suddenly dried up? A. No, but it was sudden. Q. You go on to tell us that you provided the material which you'd been given, which you call surveillance report in your statement, to the police? A. Yes. Q. Then there came a time when you had further contact with Mr Greenberg, and he told you that they had found some more surveillance material relating to you; is that right? A. That's right. The initial reports -- I still don't know their provenance, but that started off an Inquiry by Simon Greenberg as to whether there had been any surveillance, and so at a later date -- I think we get to August by now, so I first gave the documents to him in May, but I'd like to add the documents that I gave to Simon Greenberg, I made sure that the private information about the other lawyers and so on wasn't handed over. There was -- we were -- we were careful about that as well, because obviously you have to be careful not to breach somebody else's privacy when you're investigating a serious matter of an invasion of privacy. Q. Yes. A. One of the points -- LORD JUSTICE LEVESON: It's been one of the problems about all this. A. Absolutely. Absolutely one of the problems, and the same problem occurring in the Privacy and Injunction Select Committee, that in order to investigate, you have to be careful not to expose. In August, I went back for a meeting with Simon Greenberg and he said to me that -- and very nicely -- that he was terribly sorry, but it looked like although the original report didn't look like it had necessarily emanated from News International -- we don't know, it might have been anything -- that the material that he'd now discovered did emanate from Tom Crone and that he was going to look into it and he said he would look into it appropriately and so I allowed that investigation to continue. It culminated in the documents that are confidential to my witness statement being handed to the police and now it will form part of that inquiry. Q. Was it after the documents had been passed from News International to the police that the police showed them to you? A. Yes, it was, but I was expecting it. Q. Because you'd been told the documents existed? A. I'd been told -- yes. Q. Did the police show you redacted copies? A. They were redacted, but in such a minor way. I mean, they would have found it very difficult to redact this information and to keep it meaningful, which of course is another problem associated with keeping things confidential. Sometimes it's very hard to redact things and keep the meaning, and I think the police had that difficulty. They showed me the documents and it was very helpful. Q. Can we now turn to the question of what motivated the surveillance of you and the investigation of you -- LORD JUSTICE LEVESON: Just before you do, it's right to say, I think, that Mr Greenberg's assurances to you and his sincerity you don't question at all? A. No, I don't. LORD JUSTICE LEVESON: So he's been getting on with it? A. As far as I'm concerned, he got on with it. It was something that started in May with me voluntarily giving him the documents and then him volunteering too look, so it was a process that actually I think worked quite well. So no, I didn't doubt at all that there would be a problem with that. MR BARR: Thank you. I'd like to look now at the document which is number in the exhibit. If we could have that on the screen, please. That's not the right document. If that could be taken down, please. The heading is "Record of attendance", dated May . Thank you very much. This is a document that we looked at for other purposes with Mr Lewis last week. It's the attendance note of a consultation with leading counsel, Mr Treverton-Jones QC on May . If we move down the page a little bit, so that we can see the text, and it's the section under the heading, "Harris/Reed". Is it your understanding that the Harris referred to there is you? A. I think it's me, yes. Q. And we see there what leading counsel said about your case: "Gregory said that the problem with Harris and Reed was the waiver that NGN made in respect of those two. They relied on it. They even said (as recorded in our RXC attendance note of the meeting ..." Then it says "in Andrew", which doesn't quite make sense. Is that referring to a case? A. It would be Sky Andrew, who I -- Q. "... that if there was a problem they would not act. He cannot see that in light of that, there would be any way to get the Reed/Harris off the case unless there is a significant new development. He does not think there is any mileage in reporting them to their professional bodies either." LORD JUSTICE LEVESON: That's all to do with their concern that you were acting for other people, having acted for some others? A. That's right. They weren't keen on the fact that having done a phone hacking case, that we should continue to do phone hacking cases, all of which are actually quite similar, and so they had written to my law firm at the time, JMW, and said that they thought that -- I remember the word "shameless" in correspondence because it was quite a hard and harsh word to use and I took it very seriously, because you do when that kind of allegation is levelled towards you by, you know, what is a serious law firm. And so I took it to my senior partner and I took it to Mr Reed and we looked into it and the conclusion we came to -- and I think that their leading counsel here agreed -- was that there simply wasn't any case that -- you know, against us in terms of acting, and so we moved on and continued to act. LORD JUSTICE LEVESON: Yes. But that's the issue that's being discussed here? A. That is the issue, yes. MR BARR: If we go to the next paragraph, it reads: "The facts of the statements of case being similar (for example, the particulars of claim drafted by Reed), being a breach of confidentiality obligations, he was not sure was an issue. A barrister has to plead a case. He has done it in a way that is efficient/sensible. He must be entitled to go back and repeat that process." The gentleman being referred to there is Mr Reed, who is the barrister you had instructed? A. And still is a barrister I instruct. LORD LEVESON: Well, there you are. There's a tick. MR BARR: And we see no complaint there of his pleadings. A. No. Q. "JCP said that there is evidence of a transfer of information from one case to another. There has been reliance of information gleaned in the first case and used in the second, as shown in the similarity of the particulars." So this is Lord Justice Leveson's point. There seems to have been a suspicion on the part of Mr Pike, or even a belief, that you'd been sharing information? A. Yes. Q. But let's see in the paragraph below what leading counsel made of that: "Gregory said that there appeared to be no evidence in the pleadings that emanated from the first case. There was no confidential information that they could only have learnt through the Taylor proceedings. It did not seem to him that the similarities were a particularly significant feature." So he's rather pouring cold water over Mr Pike's concern? A. Concerns, yes. Q. Then we see the conclusion: "Gregory said that the case against Harris and Reed was hopeless. Gregory asked what the position was with Gordon Taylor ..." And then we go on to Mr Lewis, who we need not deal with today. There is a second later document that I'd like to draw your attention to. It's at page . It's headed "Farrer & Co". If we could have paragraph in the centre of the screen, please. This is a letter that was written on September this year by Farrer & Co to Linklaters, who were investigating what has happened. Paragraph contains, in a nutshell, Farrers' explanation for the inquiry: "The reason for this inquiry stemmed from the suspicion that Mr Lewis and Ms Harris were exchanging highly confidential information gained from acting for claimants (and Mr Taylor in particular) in cases against News Group News in order to bring further actions against News Group News by other potential claimants." It then goes on to give their explanation. It says: "While in hindsight the relevance of the results of such enquiries may be open to challenge, we are satisfied that there were legitimate concerns: apart from the issue regarding the possible exchange of confidential information, it was known that Mr Taylor was sufficiently concerned about the conduct of his previous law firm and Mr Lewis that he had instructed new solicitors to make a complaint to the SRA." Accepting that there was in fact, on your evidence, no wrongdoing, do you accept Farrers' position that there was enough for them to be suspicious of to justify investigation of you and your private circumstances? A. No. It seems an incredible thing to do. I'm at a separate law firm at this time. There's no wrongdoing or confidential information being passed from my -- on my part, and certainly -- we've gone through that evidence. The idea that when there is this kind of criminality going on, particularly now that we know a little bit more about the levels of knowledge and when various people knew -- and we know this through the privacy -- through the Media Select Committee as well as through this Inquiry. We've begun to get a better picture of what people knew and when they knew it. So taking that into account, the idea that if I was concerned about an opponent lawyer, or anyone, on the other side, that I would decide that a good way of dealing with that wouldn't be to write to them and say, "We are concerned that there is some kind of leak, breach, confidential information", or write to my senior partner or the Law Society, but to take -- you know, to take out surveillance on me and my kids or family members or to find out which of my siblings I lived with in what year, that kind of information -- I don't see how that could possibly help them. Why not just ask the question? Why not write a letter? Why not just go for the traditional approach, which would be: if you have a concern, raise it with me, raise it with my law firm, raise it with the Law Society. Don't raise it with Derek Webb, the private investigator, and send him on a train to Manchester. No need. Q. Thank you. Can we return now to your witness statement. I'm looking at paragraph . You say that within very recent time, within the last two weeks, Channel have shown you further material they obtained from the private investigator Derek Webb. Is that material you've already referred to today in your evidence or is this something new? A. I amended my statement slightly yesterday and so the date -- just for accuracy, the date changed to December . So it's actually inaccurate. It should be probably now four or five weeks ago, just to make that clarification. Yes, there was a list that was published by Channel , which named -- I can't remember the numbers. I think it's out of , and they did show me that list because I was on it. Q. So that's in addition to the material that you've provided us with on a confidential basis? A. That's in addition. I have written to the Information Commissioner about it. I think it's very important to try and make sure that, again, confidential information is handled properly. So the content of that list, of course, would be sensitive and so I've asked the Information Commissioner for guidance on it. Q. You go on in paragraph -- I'm now looking at page of your witness statement -- to talk about some of the conversations that you had with Mr Crone in the spring of . You say that between March and May , the intensity of the litigation was increasing. A. Yes. Q. That's a reference, isn't it, to phone hacking litigation? A. Yes. Q. And you say that you had many conversations with Mr Crone. Of particular interest to the Inquiry, you say: "He was absolutely wedded to the defence that there was only one rogue journalist engaging in phone hacking." A. Yes. When we talked on the telephone, I would sometimes say, "Well, what are you going to do about this? What do you think should happen?" And it was always Tom Crone's position that apart from in this case where there had been one rogue reporter, there was no evidence. He did take the position at times that he hadn't seen all the evidence and so if there was something -- but then historically, looking at the Gordon Taylor case and the Max Clifford case and then going on to the Sky Andrew case, it seemed to be that as soon as there was a door open to that kind of evidence, I don't think it was taken seriously or acknowledged. For instance -- and I think this is where it connects to the surveillance, because this isn't about me. This is supposed to be about my clients, the cases and the big wide issue. But in -- if you've seen, for instance, in your proceedings, the name of a person who is alleged to have been involved in your organisation, a journalist or whatever, to then take tips from them about, for instance, the personal life of a solicitor or a lawyer or a barrister on the other side, and to use that -- instead of asking the journalist: "So what happened? How are you involved in this?" but instead to say, "Well, if you think there's something going on here, we'll send somebody up to survey", does seem the wrong approach. Part of the reason why I was surprised in terms of Tom Crone was because we had had these discussions and I always took what he said to mean what he said. LORD JUSTICE LEVESON: Your relationship was professional and you expected everybody to treat you in the same way? A. I mean, absolutely. It's a little bit disconcerting to be sitting next to apparently eminent lawyers in court and to find out that a year ago they had ordered some surveillance on you rather than write a letter, that the people who you speak to on a -- maybe three times a week or twice a week on different matters and other cases, had behaved in that way. It's disconcerting and it does give you an insight of how your clients feel, certainly, in terms of not knowing what's going on. One of the difficulties with surveillance -- and I hear this from clients but I also speak for myself -- is you don't really know what happened when. You can only -- you know, did someone watch you as you, you know, left your house, as you left the supermarket, or on what day? And it's the same for my clients, where they've been under either surveillance or their telephone messages have been intercepted. You don't always have the evidence of the particular message that was intercepted or the particular occurrence or place they were when they were under surveillance. It's what you don't know that can cause, I think, stress. And it's -- that in itself might be a new form of harassment to look into. MR BARR: You deal with the impact on yourself of the surveillance that you had come to learn about in paragraph . Could you tell the Inquiry, in your own words, please, how you feel about what you have now learned? A. I think I have expanded on it a little bit just now. As a lawyer, I feel very much that I want to focus on my cases and my clients and I don't want this mischief from the other side, such as surveillance. It gets in the way. Obviously it's inappropriate and News International have said that and they said it pretty quickly and pretty early on. As a mother, you -- it's natural to feel terribly uncomfortable with the idea of anybody looking into your family or your children. But this has been very obstructive. It's obstructive to trying to sort out some very difficult litigation, some very difficult issues, and it's almost like -- I wish it hadn't happened not only because it's not nice, but it throws a spanner in the works in terms of just trying to get down to the groundwork of getting this whole matter sorted. LORD JUSTICE LEVESON: It disrupts orderly resolution of the -- A. Yes, it disrupts orderly resolution. It gets in the way and you shouldn't have to be suspicious of your opponents in that way. I'm sorry that they were suspicious of me and the other lawyers. I just wish they'd said so. MR BARR: I see. Can we move now from the surveillance of you to seek the benefit of your experience as a specialist media lawyer? Have you noticed, in your time in practice, any trend in prior notice? Has it been given more often or less often? A. Generally there's notification. I speak generally. You don't always know. Sometimes if there's a very big media story going on, so many -- you get a certain amount of notification and then all the papers cover it. So you -- you know, you sometimes find yourself in a position -- something's come out on the Internet or in an early publication and then everybody else will publish after that. So it's not always -- you don't specifically always get it. Q. I'm thinking here about exclusive stories, when they are first broken by a newspaper. A. Generally, generally. Exclusive stories by a newspaper I've received prior notification or my client has received prior notification. Sometimes it's not enough prior notification to get a matter sorted. It's very difficult on a Saturday. Saturday can be a very busy day because of the Sunday papers, and so when the phone rings at .or o'clock, you have to -- and you can tell, because normally there will be a few calls and a journalist on the other end of the phone -- I don't even want to give an example because I don't think I can think of an example that isn't real at the moment. Q. You say generally. Can I ask you about those cases where you don't get prior notice? Is there any particular pattern to those? Is there a particular type of case? A. They tend to be cases that have got something to do with criminal law, actually, where there's possibly a stronger apparent public interest in it. So if, for instance, they're reporting some kind of allegation of a crime, you don't -- you tend to hear from the journalists if it's a sex scandal, if it's some kind of, you know, maybe if there's some kind of chance that they might get an interview out of your client, that can happen. There's always the standard ploy of: "We're going to run this. Are you going to co-operate?" And then you have to decide. Up until May, when there was a lot of movement and debate and discussion in terms of the appropriateness of injunctions and privacy injunctions -- one of the first things you do is you decide whether or not this is private information. Is it something that we should consider instructing counsel on immediately? Is this a story that could be stopped? Now, things have moved on. There are certainly less injunctions and you have to decide: are you going to let this story run or are you going to manage it in some other way? Are you going to make a comment? I think that the press have been, during this Inquiry, more careful. I think that my workload in terms of scandal has been somewhat reduced. LORD JUSTICE LEVESON: Is that good or bad? A. I'm delighted. Absolutely delighted. Thank you. LORD JUSTICE LEVESON: I'm pleased somebody's pleased. MR BARR: On the question of injunctions, can I ask you this: have you had experience of injunctions being defeated by talk on the Internet or through social media? A. When you say "defeated", do you mean lifted? Or -- Q. No, I mean -- A. Breached? Q. -- the practical purpose is negated. A. Breached. Certainly in terms of the May injunctions, there were breaches on the Internet and one of the things that people say quite a lot is: "Oh, well, what's the point of having this injunction? There's all this information out there." But the fact is all the information isn't out there. If there's an injunction in places and a small amount of information has leaked out, sure, that's a breach, but that doesn't mean that the newspaper can run an exploitative story where they pay money to an individual who is breaching the injunction. A lot of the salacious detail doesn't come out. There's a rule of law. There's an injunction in place that has been lawfully provided and one of my problems with it was that it's very easy for -- certain tabloid newspapers who have been eager to expose scandals, I think very hypocritically, don't expose their own scandal. So it's difficult for me to take it seriously when they say that this is all about public morality. Q. I see. Moving to the PCC, have you had much experience of dealing with the PCC? A. I deal with the PCC generally in terms of harassment, generally in terms of photographers. So if, for instance, there have been occasions where I've had clients who have had enormous amounts of photographers outside or they can't exit a building, they've tended to be very effective in terms of sending a notice around. Q. Have they been effective with harassment cases as well as photographer cases? A. One of the things about the PCC is you sort of have to make this choice. You can't have civil proceedings going on at the same time as a complaint with the PCC. So I have tended to go down the civil route, although the relationship that I've had with the PCC in terms of getting something done immediately hasn't been too bad. Q. Are there any areas in which you think the PCC could be improved? A. Whether it's the PCC, whether it's some other body, whether everybody decides that it's time to obey the law -- which, you know, seems to be strange that you'd even have to say that -- something has to be done so that there is resolution to law breaking, and whether it's, as I said, a PCC, a new tort, regulation, not having regulation and following the law, as long as matters become better than they are, I'd be pleased. But the PCC have limited powers. Q. So you don't want to be specific about any particular changes you think might help, you simply want a system that will ensure the rule of law; is that right? A. The approach that we take at my law firm, at Mishcons, is that we are -- we have a lot of internal discussion about what should happen, and we are lawyers. So therefore, as a first base, you want to respect the rule of law and you want -- and I think there are decent laws that have been properly applied. When it comes to speaking of regulation going forward, obviously there's a certain reluctance in terms of regulation, not just from the press but in terms of what form would it take? And so nobody wants a sort of bureaucratic knee-jerk reaction to some of the terrible things that we've heard. So I can't be specific at the moment about what model and what the outcome of this Inquiry should be in terms of recommendation. I just know that I want the law to be obeyed in some way so that we don't have this ridiculous situation that we had over the injunctions, where it was okay to breach them, where if there's a scandal exposed, that can be printed all over the papers but if there's a phone hacking scandal, there can be silence for years. That doesn't seem right. There has to be proper sanctions as well. LORD JUSTICE LEVESON: It's not just a question of the law in that sort of rather grand sense. One can talk about the criminal law. A. Sure. LORD JUSTICE LEVESON: But there are always going to be areas that are grey, where the criminal law might not be engaged but which many might think -- perhaps not all -- lines have been crossed which should not have been crossed. A. Absolutely. LORD JUSTICE LEVESON: So that's the really difficult issue. A. There are issues in terms of what people agree private information should be. There's -- and where criminality starts and where it stops. These grey lines have come up in so many cases, particularly, for instance, just to give you an example, where -- if a journalist is looking into a public person in a position of authority who they suspect might have committed a criminal offence, if they haven't committed that criminal offence, you know, at what point do you get to where it's okay to investigate? Same goes for areas of privacy law. When does your privacy start and stop? When do you first become a public person? So, for instance, if I was addressing some students, like you sometimes do, who might, in ten years' time, have a career which takes them into the public domain, if they become a public figure, does what they did yesterday -- is that still private? Can that be revealed? And should we be frightened, even when we're not a public person, of what we've done or said now? Will that be exposed later? There has to be a certain amount of personal autonomy and freedom to be, without fear that you're going to be a role model in five years' time. So I think a lot of the law is very grey in that -- well, actually, the law isn't grey. I think a lot of the areas of interpretation of the law is grey if you're looking at it from the point of view of how a journalist or a tabloid newspaper might interpret it or how the PCC might interpret it and how the person whose private information it concerns interprets it, and then how the public might perceive it. I think it's deeply complex. LORD JUSTICE LEVESON: I agree with you that it's deeply complex. The trouble, of course, is that if you make rules specific -- this is on that signed of the line and that is on the other side of the line -- in one sense that helps, but in another sense it hinders because it removes the elasticity that comes with the exercise of sensible discretion. A. But the judges do that. Part of the rule of law -- LORD JUSTICE LEVESON: Oh, judges do that. That's -- A. That's my point and I absolutely agree with you. Trying to express it like that, when you're in court and you have applied for an injunction, there are areas that the judge will look at and evidence that the judge will look at where he will considerable precisely those points. Here's an area that is private: information about somebody's health. Here's an area about somebody's employment and correspondence or what they've done and where, and where there are these balancing processes going on, the judge will look at that, look at the evidence then make a decision, and then also make a judgment. Very few super-injunctions, injunctions that people don't know about; much more public judgments, even if parties are anonymised. I think once a judge has made that decision and it's been put into an injunction that's been served, it is not right for other people, particularly those who have got commercial interests, to pre-judge, make a decision and simply say, "Well, we'll just put that out on the Internet because clearly that decision was wrong." LORD JUSTICE LEVESON: That's all about the rule of law. A. Yes. LORD JUSTICE LEVESON: I'm actually concerned about trying to find a mechanism to resolve these issues, and of course as lawyers, we might very well all say, "Well, we have a system that deals with it. You issue proceedings, you go before a judge and you go into this with microscopic detail and then you get a result." But whether that works for people who don't have a lot of money but whose privacy might be just as important, and whether it indeed works for the press, who then have to respond appropriately -- A. The press don't want regulation, though, I think, generally. LORD JUSTICE LEVESON: -- is another matter. A. The idea, which is a little bit of a myth, that you have to have vast sums of money in order to have a lawyer look after your privacy is one of the arguments that was happening in May, where it was: "This is just a rich man's law." You can get a CFA as a claimant and -- on a no win, no fee. Not only that; the fact is that the fodder of tabloid newspapers -- so the front cover, the big sex scandals -- tend to involve not the ordinary person. I'm sure you've heard this argument before. They're far more interested in -- and understandably -- interested, in terms of sales, in who a footballer might or might not be having a relationship with than who, I don't know, my postman might be having a relationship with. And so to an extent it self-corrects, and that's why CFAs are important as well, for both claimants and defendants, and I have worked on both sides of injunctions, for claimants and on behalf of newspapers. MR BARR: For my next questions, there's no need for you to name clients or breach any confidences unless you have instructions which enable you to do so. The Inquiry's had a lot of evidence about phone hacking. What I'd like to ask you is: from your experience of acting for claimants, is email hacking also an issue? A. The first sprouts of evidence starting now -- it's at such an early stage. So there may be -- there may be something. I'd like to take as forensic approach as possible. So I expect we'll hear more about that. Q. I see. So not very much as yet? A. No, not very much as yet. There's Operation Tuleta, who are looking into email hacking. But have I seen the evidence of email hacking in the way that I've seen evidence of phone hacking? No, not yet. MR BARR: Thank you very much, Ms Harris. I've asked every witness at the end if they want to say anything further to Lord Justice Leveson. There's already been some discussion of the regulatory issues, but if there is anything else you would like to add, please do so. A. No, I think that we've had the discussion. LORD JUSTICE LEVESON: Thank you very much indeed. A. Thank you. MR BARR: Sir, would you like a break now before we call the final witness of the morning? LORD JUSTICE LEVESON: We'll need a break some time. If it's more convenient now, Mr Barr, as long as you don't blame it on me, then I'm comfortable to have it now. If you want to carry on, whatever. MR BARR: I wouldn't dream of blaming you, sir. LORD JUSTICE LEVESON: You were, actually. All right. We'll take a couple of minutes. (.am) (A short break) (.am) MR BARR: Sir, the next witness is Mr David Leigh. LORD JUSTICE LEVESON: Thank you. MR DAVID LEIGH (affirmed) Questions from MR BARR MR BARR: Mr Leigh, good morning. A. Good morning. Q. Could you tell the Inquiry your full name, please? A. I'm David Leigh. Q. And you provided the address of your employer, Guardian News and Media Limited. You've also provided a witness statement voluntarily -- sorry, I think actually in response to a notice, I correct myself. Are the contents of your witness statement true and correct to the best of your knowledge and belief? A. Yes, they are. Q. You tell us that you are a journalist. You are presently an assistant editor at the Guardian, with special responsibility for investigations; is that right? A. Yes, it is. Q. You have more than years' experience working on titles, including the Times, the Observer, the Washington Post and the Guardian, as well as for television's This Week and World In Action programmes? A. Yes. Q. In addition to your work as a journalist, you are the professor of reporting at City University, journalism department? A. I am. Q. And you are the author of seven books on journalism and politics? A. This is correct. Q. We're going to take your statement as read and so I shall proceed, as with the other witnesses, simply to ask you to expand on certain parts of your witness statement. Can I deal first of all with paragraph of your witness statement, which is where you set out the role of corporate governance at the Guardian. You tell us that the editor sees every story that is submitted. A. Well, an editor sees every story that is submitted, yeah. Q. An editor, and that's an important distinction, isn't it? A. Well, I don't think the editor personally sees every single story in advance. It would take more than the hours there are in the day to do that. Q. You explain that in your newspaper there are two codes of conduct that you have to have in mind: there's the Guardian News Media's own code of conduct and the PCC code of conduct, and the latter is set out at the end of the former, isn't it? A. Yes, it is. Q. I'm just going to read a few extracts from Guardian News Media's code of conduct. It starts off under the heading "Summary", with the quotation: "A newspaper's primary office is the gathering of news. At the peril of its soul, it must see that the supply is not tainted." A. Yes, this is a quotation from our great past editor, CP Scott, who was regarded as a guru in these matters by all of us. Q. So can I take it that that is a principle which you hold dear to your heart? A. Yes, I do. Q. The summary goes on to say that your most important currency is trust? A. I think that's right. Q. The next section deals with professional practice, and amongst other things, it says: "We should be honest about our sources, even if we can't name them." Does that mean that you would deprecate the false attribution of sources in an article? A. What do you mean by "false attribution"? Q. We've heard evidence, for example, which suggests that stories which were obtained by the interception of communications were then attributed to the friends of, for example, celebrities. Of course, everyone would deprecate the illegal means, but would you also deprecate the false attribution of the story? A. Yes, I think telling lies or misleading statements about your sources is just wrong. It's misleading the reader as to what is really going on. Q. Moving now to the way in which the Guardian News Media's code deals with the issue of subterfuge. It reads: "Journalists should generally identify themselves as GNM employees when working on a story. There may be instances involving stories of exceptional public interest where this does not apply, but this needs the approval of a head of department, see PCC code section . This applies to anything we publish, including any information obtained by the subterfuge of others." What I'd particularly like to ask you about there is the use of the word "exceptional public interest". It seems to be a further qualification above and beyond that which we'll come to in a moment in the PCC code. Is that a very deliberate raising of the test? A. Well, what I understand by that and what my own practice is, is that normally, as a rule, I don't use subterfuge and I think that would be the case with Guardian journalists. Normally they don't use subterfuge. So the occasions when they do are exceptional by definition, really. Q. We're going to come in due course to some very interesting evidence you can give about your own use, on occasion, of subterfuge, but before we do that, I'd like to take you to clause of the PCC code. It says: "The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices or by intercepting private or mobile telephone calls, messages or emails, or by the unauthorised removal of documents or photographs or by accessing digitally held private information without consent. ". Engaging in misrepresentation or subterfuge, including by agent or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means." On the face of it, that's a tight test, but what it doesn't do is distinguish between those methods of subterfuge which are legal when one takes into account an express public interest defence, and those techniques which are illegal and have no public interest defence, such as the interception of communications. Do you think that that is a flaw in clause of the PCC code or not? A. The wording of the PCC code isn't something that I have in front of me when I'm doing stuff, because their exceptions about public interest are so broad that I think everything in that code is pretty well negated by their remarks "except if it's in the public interest". It's a problem for me like it's a problem for all serious journalists where to draw this line about public interest and we do spend a certain amount of time thinking about that. That's the area of difficulty for this Inquiry, too, I suspect. I don't think that journalists should break the law. I don't think they should break the criminal law, at any rate. Sometimes, as I said in an article you've referenced there, we challenge the law and sometimes it's difficult to stay on the right side of the civil law, certainly, because there are arguments about, you know, how far we should actually be bound by, for example, the alleged law of confidence. So we constantly find ourselves in collision with different interpretations of the law. The bottom line of all this is that I wouldn't want to break the criminal law in what I do, and I don't think I have ever deliberately done so. Q. We'll come back to interesting questions such as public interest and what exactly it means in due course, but I'm now going to move on to paragraph of your witness statement, where you tell us about your role in ensuring corporate governance. At paragraph , you say: "My formal responsibility is to adhere to the rules personally and to make sure anyone I am working with also does." I'm sure everyone readily understands your duty to obey your employer's procedures in this regard, but what I'm interested in is you see it as your role also to ensure that others do as well. Are you talking about your peers or only about your subordinates? A. Well, the Guardian's a pretty flat sort of organisation, and to try and read it in strictly hierarchical or military terms, subordinates, can be misleading. What I'm talking about really is if I'm working with a group of people, some of whom might be junior to me, I would want to know how they got material, yes, because I would want to work closely and trustingly with the people I do. Q. To put another example to you, if you were working with someone who was equivalent to you or even superior, do you regard yourself as still having an ethical oversight role? A. Well, we're all pretty candid with each other. I don't conceal what I'm doing from my superiors and I don't expect my juniors to conceal what they're doing with me. I think we try and deal openly with each other. Q. So is it your experience that a certain amount of peer self-regulation on ethical matters works on your newspaper? A. It's about the culture. One of the terms of reference of the Inquiry appears to be about the culture of the press, and the culture of the Guardian and of other serious newspapers and media organisations is quite different from the sort of culture that you've been hearing about in recent days, and I think our culture, and a culture that's deliberately tried to be encouraged, is one which is -- I don't want to sound holier than thou, but it's a culture that's supposed to be pretty ethical, pretty candid, pretty serious-minded. LORD JUSTICE LEVESON: Could I throw two questions into there? First of all, it was a question that I was going to ask anyway, but you've just raised the issue: the cultures at different newspaper titles may be different, but in your experience, perhaps from your academic work rather than the august bodies for whom you have been employed, is there a difference or should there be a difference between the ethical approach of titles that are differently orientated to the Guardian, that have different readership and therefore different interests to those which are at the broadsheet end? A. Well, as you tell from my CV, I haven't worked for tabloids myself, so my experiences are second-hand there. All the media organisations I've worked for have been at the serious end of the business, and I think at that serious end of the business, people do have a strong civic notion about what they're doing. The reason why they feel comfortable about what they're doing is because they think they're serving some useful social purpose, you know, as well as paying the rent. The tabloid -- LORD JUSTICE LEVESON: I think they might think they also fulfil a useful social purpose. A. The tabloids? LORD JUSTICE LEVESON: Yes. A. It seems to me there are other factors that are in play more strongly, and one of those is commercial. It's possible to make a great deal of money out of running a particular kind of newspaper, and some of them are, you know, more cultural in the sense that there's a climate of "anything goes", there's a climate of almost delighting in roguery, sometimes, from the way colleagues of mine have talked along the tabloids about their life, about the stunts they pull, about the stories they invent, and that is culturally different from the atmosphere in the newsroom of, say, the Financial Times. LORD JUSTICE LEVESON: Yes, I understand that, and that's why I was focusing on your academic work, whether you'd actually looked at this sort of issue before, because, as you know, there's a great deal of concern about my getting to grips with what goes on in tabloid or mid-market newspapers. A. Well, I don't think the stance we take towards what's going on ought to alter, depending on whether we're talking about tabloids or whether we're talking about serious journalists. If there's wrongdoing, it's wrong. If there's law breaking, it's wrong. If there's unethical behaviour, it's wrong. I don't think you can mount any kind of justification of tabloid behaviour on the grounds that they're different from the broadsheets so they ought to be allowed to behave differently. What you've been hearing at your Inquiry seems focused on the sometimes appalling impact on ordinary people, people who are victims of rather ruthless, amoral behaviour, and I thought that's the bad thing that you're seeking to address. LORD JUSTICE LEVESON: Yes. MR BARR: Can we move now to paragraph of your witness statement, where you deal with the question whether practices have changed either recently, as a result of the phone hacking media interest, or prior to that point, and if so, what the reasons for the change were. You say in reply to that question -- and we now have it up on the screen: "Following concerns expressed by the Information Commissioner in two reports published in ..." If I stop there, that's "What price privacy?" and "What price privacy now?" isn't it? A. Yes. Q. "... Alan Rusbridger reiterated that private detectives could only be used to obtain otherwise confidential information where the public interest justified it and in all cases only after reference to him." And this is reference to the editor, not an editor? A. The editor-in-chief, in fact. Q. The word that I'd like to alight upon is your use of the word "reiterated". Just to confirm, is it your evidence that in fact nothing changed, there was just an emphasis on maintaining the status quo, or was there really any change? A. It wasn't the Guardian's practice to use private detectives before these reports, and it isn't their practice now. So I think "reiterated" was the right word. Q. You then go on, in answer to question , to deal with checking sources and telling us a little about, in your experience, who gets to know what about sources. If I try and condense what you've said, is it right that there are various variables in play, one of which is the sensitivity of the source? A. Mm-hm. Q. And the other is the importance of the story? A. Mm-hm. Q. And who gets to learn the name of the source, whether they get to learn the name of the source, rather depends on the interplay of those variables? A. Yes. Q. So it's right, is it, that there can be stories where the person with editorial responsibility for it does not get to know the name of the source? A. Well, I don't much like the habit of some reporters of cloaking the origins of their stories, the provenance of their stories by talking in mysterious terms about sources. I think -- if I have a story I'm concerned about, I question my colleague or my junior reporter pretty closely about the nature of the source, and I expect my editor -- either my immediate editor or the editor himself -- to question me pretty rigorously about a story that's important and sensitive or contentious. Q. Does that necessarily involve naming the source or is it sufficient, in your view, sometimes only to identify in other ways who the source is? A. I think some of it depends on the level of trust. If my editor said to me: "I really want to know who this source is", and I would say, "Listen I really don't want to give you the name but I will tell you the nature of the source, where they come from, how I came by them, a general indication", I would hope that my editor would trust my integrity enough to accept that. There might be occasions on which he wouldn't and say, "Sorry, I'm not going to run this unless you actually tell me who the source is because it's so sensitive." Q. So I'm getting the impression that in certain circumstances, you think that an editor can responsibly give the go-ahead to a story even without knowing the precise source? A. Even without knowing the precise name of the source. I mean, you would certainly want to know the type of the source. Q. Thank you. I'm going to move now to paragraph of your statement, where you start to talk about the use of different means and you refer to whether the end may justify the means. We'll come to some specific examples in due course, but if we can deal with it, at this stage, on a theoretical basis. In what circumstances do you think that the end may justify the means? Can I start by asking you: does it always justify the means? A. Well, no, the end doesn't always justify the means. Q. Where do you draw the boundaries? A. It's quite a difficult question to answer because that's the whole issue, isn't it? Where do you draw the boundaries? Where is the frontier? The answer, in my experience, is apart from some rather sort of broad and banal distinctions, it's case by case. It depends absolutely on the particular circumstances of a particular case. The art of what journalists like me do, the judgment we exercise, is whether it's appropriate, it's ethical, it's right to do things in the particular circumstances of a case. Q. If we accept for a moment that it's a judgment that has to be done on a case-by-case basis and is fact-sensitive, what then are the pointers that the journalist can use to answer the question whether the end will justify the means? Is public interest one of the pointers? A. Public interest is the central pointer, yes. I mean, that's the compass, really, I mean, I find. You say: what is justified in this case in the public interest? First of all, is the inquiry you're making in the public interest? Is it in the public interest to take the steps you're thinking about taking? And in the article I wrote that you may want to come to in when the News of the World reporter was arrested, I tried to start what I hoped would be an adult debate about where you draw these lines by drawing examples from my own experience of where there had been difficult decisions. Were you on the right side of the line or not? Q. I wanted to ask you whether, in considering the public interest, can you get a public interest which is so acute that it will justify, in your mind, any means? A. Well, I can't imagine a public interest that would be so acute it would justify pushing a High Court judge off Beachy Head or murdering anybody. LORD JUSTICE LEVESON: I'm relieved to hear you say that, Mr Leigh. MR BARR: So there are some outer boundaries? A. Yes, that's what I meant by banal distinctions. That's pretty obvious, isn't it? Q. Perhaps if we move from that interesting vision to try and test out the boundary more realistically. Can you help us as to where in your mind you think the outer boundaries of are what means are out of bounds? A. Right, I mean, I have broad approaches -- I don't/we don't use private detectives. I don't/we don't harass people normally. I don't/we don't write up -- intrude into people's sex lives unnecessarily. Those are very obvious boundaries. And we don't practise chequebook journalism as a rule. Having said that, I can think of circumstances where I've applied those rules in problematic circumstances. Maybe it would help if it did. For example, I remember a source once came to me and he offered to sell information about the way an arms company had been spying on anti-arms protesters. There's an organisation called Campaign Against the Arms Trade and he said he was in a position to sell me documents showing that this arms company had infiltrated the protesters at quite a high level and he wanted ,for it. And I brooded about this and thought: "Well, there is a public interest about exposing this. On the other hand, I'm not sure it justifies me in paying a large sum of money like that" -- because there are good reasons why we don't pay money, apart from being poor, and one of the good reasons is it encourages people to embellish. It sets up a market in stories which can taint and corrupt the information. So I said, "No, I won't do it, the balance is wrong for me", and then this person, to my amusement, went off to another newspaper and obviously succeeded in selling it because the same story then appeared in this Sunday paper a few days later. To my chagrin, I realised that actually the documents had shown some rather important things, that some politically connected people had been organising this espionage and in fact it was the person who was at the very top of the Campaign Against the Arms Trade who had been infiltrated in an undercover way, and since then it's been proved that this use of undercover infiltration has been growing as an industry. So I asked myself afterwards: did I make a mistake? Was I too prissy in turning down that? I still don't know the answer, because these things are judgment calls. Q. Perhaps we can explore that a little further in our voyage towards the line. Would you criticise as unethical the newspaper which did pay for that story? A. That's where I'm in a dilemma, because it's like the way the Telegraph newspapers paid a large sum of money for the information about MP's expense. Q. You've stolen my next question. A. Yes. Well, I've often scratched my head about this and thought that it's a good job the person selling that didn't come to me because my first reaction would have been: "I don't want to pay a large sum of money for what is, in a sense, stolen documents." Would I have been right? Would I have been wrong? I don't know, because I was never faced with the choice, fortunately, but I think everybody now agrees that the Telegraph was right to do what they did because the public interest was so overwhelming. Q. As a matter of principle, do you think there may be circumstances where a journalist should be permitted to break the law in the public interest to get a story? A. In the abstract, I can imagine circumstances, yes. As I say, obviously if you broke the law in a grave way by murdering someone, there's no conceivable public interest that would justify it, but there might be ways in which, theoretically, the interest would justify it. I can imagine it. Q. I think here we may come on to what some may describe as a fastball, because I want to ask you now what you teach your students as a professor of journalism. Would you ever consider teaching a student of journalism that it might, in certain circumstances, be permissible to break the law if it was in the public interest? A. I try and teach my students of journalism to think. I try and present them with these problematic issues, like the ones that I write about in the paper, or like the example I've just given you. I take them through stories that have been published, stories like the Telegraph one, and I ask them to think as deeply as they can about what the issues are. I don't presume to give them the answers, because the whole structure of my teaching is to say: this is about the line, and we'll talk about the frontier and here you find problematic areas and if you think very hard about this, you will work out your own position about what the public interest is. I'm not a teacher like I'm issuing fatwas to people. I see my job as stimulating them to think ethically. Q. I get the impression that the result of that is that ultimately a lot is going to depend upon the conscience of the individual journalist; is that right? A. Well, the informed conscience. If you like, when I'm teaching students, I try and inform their conscience. I say, "These are the factors you ought to take into account." I mean, the chief one is the public interest. It's what is in the public interest? Can I give you another example of where I think I wave wavered about? I think we discussed already at this Inquiry the David Blunkett case, in which people started to publish information about his private life. I know that we on the Guardian initially took the view this was over the line, it wasn't in the public interest. Then it transpired that some public interest issues did come up. Had he, because of his personal relationship, fast-tracked a visa for someone? And I then felt it was in the public interest, and I say to my students: "What do you think? You decide. If you had to make that call, do we write this story or not, what are the factors you would take into account? Would it be justified? Would it be not?" And I say it's not easy. We on the Guardian, some of us thought one way, some of us thought another. Some of us thought one way to start with and then changed our views. Q. So if so much comes down to a case-by-case judgment and to the use of an informed conscience, how important is training in upholding ethical standards of the press? A. Oh, well, my experience is that people emerge from journalism courses with their heads full of ethics, because they get taught a lot about it, and as soon as they are plunged into the raw atmosphere of the tabloid newsroom, it comes under a lot of pressure. It's about the culture of the place where you work much more than the culture of the place where you trained. Q. So if the culture is so important, does that point to a need for strong ethical leadership? A. Well, self-evidently it does, but I don't think that can happen in a vacuum. Where does leadership come from in a newsroom? It comes from the editor. The pressures that operate on the editor are different in these different places. The pressures that operate on the editor of the Guardian or the Financial Times are quite different, I suspect, from the pressures that operate on the editor of the Daily Mail or the editor of the News of the World. Q. But if the editor is to propagate the right tone, if I put it in that way, are there any pointers from your experience, working on a number of titles, that you would like to share with the Inquiry which might be ways of ensuring a proper culture is instilled? A. I think to be brutal about it, you have to make people fear the law. This Inquiry has come back again and again to the question of law-breaking, and it seems to me that most of the issues of concern, whether it's harassment or it's telephone interception or it's data theft, they're all crimes, and it seems to me that what we've been circling around is the fact that the law is not enforced, and if I was an editor, I'd fear the law if it was enforced. LORD JUSTICE LEVESON: But the law carries with it in some regards, certainly in relation to Section , its own public interest defence. A. Yes. LORD JUSTICE LEVESON: And if one is to have regard to the wider public interest, that's inevitable, isn't it? I mean, one doesn't have to go back very long in time to see prosecutions which, on the face of it, appear unanswerable but which lead to acquittals because the jury are not prepared to convict in those circumstances, and we can all think of the examples. A. Well, that's the law operating in the right way, I'd have thought. Things are tested in that way. LORD JUSTICE LEVESON: And the other problem about the law, if I might just say, is that in one sense you're absolutely right, and if there could be a policeman at everybody's shoulder, then it would be very easy to say, "This isn't our problem, let the police sort it out", and indeed now we're in the position that an enormous police investigation is being undertaken for reasons which everybody understands. But the fact is that there isn't a policeman at everybody's shoulder and there won't ever be, and therefore we can't just say, "Well, it's a failure of the criminal law", and so wash our hands of it, can we? A. I wasn't suggesting -- LORD JUSTICE LEVESON: I know you weren't, but I'm testing the proposition that it's comparatively straightforward to say there's a criminal law, harassment, data theft, RIPA interceptions. All that stuff bites on the individual, but it does have its own complications. A. What I was driving at was I don't think you get very far by improving training or by appealing to the conscience of the editor of a tabloid newspaper that's driven by greedy and cynical attitudes. I don't think you'll get very far by appealing to people's conscience. You have to look at the pressures that are operating upon them. LORD JUSTICE LEVESON: I understand, and with respect, I think that's absolutely right. But if one just presses that a little bit, the more you try to put in levers in place to drive what might be thought to be a more appropriate approach, the more you run into arguments about the freedom of the press and the very real importance that everybody has to be able to express themselves as Article permits. A. I've been campaigning for freedom of the press for as long as I've been a journalist, and I couldn't disagree with you in any way, but fear of the law does act as a deterrent, and one of the things that I've written about is I think it's a shame the law is not enforced. I think it's a shame, for example, that the proposal to bring in custodial sentences for improper breach of the Data Protection Act for blagging data, that that hasn't happened, and I think the lobbying by some sections of the tabloid press against it shows it would be a good sanction. It would probably make private detectives very reluctant to, you know, risk jail by doing these kind of things unless there was a proper defence. So, you know, I would like to see some deterrents in place, and I'm sure they would have an effect and I'm sure they would have more of an effect than abjurations on editors to behave better and be nicer people. LORD JUSTICE LEVESON: I understand. I understand the point. MR BARR: Can we move now to consider a couple of specific techniques. You tell us at paragraph of your witness statement about an episode in which you stood up, if I use the jargon, a story by making a telephone call under a false pretence to Mark Thatcher. A. Yes. Q. Again to use a jargon, I think that was blagging, wasn't it? A. Sort of blagging. I mean, I was trying, as I said, not to be holier than thou, so I was trying to think of examples about my own practice that people would regard as questionable and, you know, analyse them. And this was a minor example of the use of subterfuge. I'm trying to prove -- this is many years ago when I was on the Observer. I'm trying to prove there's a connection between Mark Thatcher, the then Prime Minister's son, and an arms company executive because I suspect that they have a relationship, that the arms company has hired Mark Thatcher for their own purposes. The man is called Jamil Amunyi. I ring up Downing Street and say, "I'd like to be put through to Mark Thatcher", the switchboard operator says, "Who's calling?" and I say, "Tell him it's Jamil." When he comes on the line, what he immediately does is he says, "Hi Jamil", and I think: "That's brilliant. I've proved that these two men know each other." And we then have a conversation -- I have a conversation with Mark Thatcher about it and say, you know, "You had a deal with this person", and he says, "Oh, it's confidential." So I think: "Ah, that's proved again." And we then wrote a large story on the back of this, with some confidence, saying that Mark Thatcher was employed on the quiet by this firm. Now, I think that was completely in the public interest and I think the minor deception that I used, minor and temporary, was completely defensible and appropriate, and I can't think of another way in which I could have got that information. I was investigating impropriety, or perhaps worse, in public figures. So I give that as an example of the use of subterfuge that I regard as completely okay, especially bearing in mind that journalists on public interest investigations have to use a certain amount of guile because we don't have powers as journalists. We can't arrest people. We can't summon people to an Inquiry like this, under pain of contempt of court, and we have to find out things often from powerful people who are anxious to conceal them. Q. Thank you. I've been asked on behalf of another core participant to ask you whether you had any role in blagging information from Jonathan Aitken. A. The short answer is no. The other participant who has asked you that seems to have their research a bit sloppy. I didn't have anything to do with that. I wasn't working at the Guardian at the time. You'd have to ask someone else if you want details. Q. Thank you. In that case, we can move on to the general point which you were just adverting to, which is the important point if you're going to blag information is whether it's in the public interest. So if we think about public interest for a moment. I'll start with what might be described as a very underarm ball. We've had a journalist who's come to give evidence who suggested that the public interest is what the public is interested in. Do you agree with that proposition? A. No. To my mind, it's an absurd proposition and most judges appear to say it's an absurd proposition too. I have some experience of the public interest being used in a legal context because it's a live phrase in the so-called Reynolds defence in libel now. We have a defence in libel if we can show that what we're investigating, what we're writing about, not only have we taken steps to verify it but the original story that we were pursuing was in the public interest to make known. So I go through this checklist when I'm writing stories that are potentially libellous. Is what I'm doing in the public interest? Have I taken the relevant steps to verify it? Have I behaved as a responsible journalist? So actually, that notion has got quite familiar to newspaper lawyers and to newspaper reporters. Q. If the public interest is not what the public is interested in, what pointers can the journalist thinking through the assessment that you've just spoken about use to establish whether a story really is in the public interest? A. Well, I mean, Lord Northcliffe said all those years ago -- and I think my colleague Nick Davies repeated it -- that news is something that somebody wants to suppress. All the rest is advertising. That's a starting point. You know, it has to be something that somebody wants to suppress. And then the question is: do they want to suppress it for a good reason or bad? There are many powerful organisations in society who want to keep things quiet for their own reasons, and that includes newspaper corporations, too, obviously. The question I ask myself is: is this something that ought to be made known? You know, would people agree generally that this is something that society ought to know about? Q. If I might suggest, in the answer you've just given, it was hard to distinguish between -- you mentioned a large corporation, but initially it was hard to distinguish whether you were talking about large corporation or an organ of the state on the one hand or a private individual on the other. Perhaps with private individuals the question is particularly acute. When is a story about a private individual going to be in the public interest? A. Well, I gave you the example about the Blunkett case, where a private relationship of a public individual -- it was very uncertain where the public interest was, and in fact possibly the public interest wasn't there at one point and was at another. Generally, private individuals, there's much less public interest in writing about their private lives, and that's why papers like the Guardian don't write about -- we don't publish gossip about celebrities, by and large. Q. Does there need to be some wrongdoing that is being uncovered or not? A. Broadly, I'd have said yes. That includes people being hypocritical, I suppose. I mean, I don't have very much time for these arguments about adulterous footballers or role models for small boys, but maybe they are for all I know. LORD JUSTICE LEVESON: I'm sorry, just so I understand that, you don't consider that marital infidelities, if that's what they are, of footballers justify invasion of privacy in publication? A. By and large, no. But in my mind, there is not a sort of either/or situation. LORD JUSTICE LEVESON: No, I can see that. A. That something is either allowed to be published or to be forbidden to be published. It seems to me that there's a category of material which there probably isn't any or much public interest in making known, such as footballers' marital infidelities, but it doesn't automatically follow from that that there's a public interest in censoring it or banning it. Does that distinction make any sense? LORD JUSTICE LEVESON: No, no, I understand, I think. Quite how one works that out, though, is not entirely straightforward. A. We're all hoping you will. LORD JUSTICE LEVESON: Yes. Move on, Mr Barr. MR BARR: I'll move on this far, sir. In the relationship between public interest and privacy, we've heard a witness who said that in many years working as a journalist and many intrusions into privacy, he'd never come across anyone doing anything good, and he effectively said that privacy was something which people who were doing bad things needed. Is that a proposition with which you would agree? A. No. I think it's a proposition few people would agree with. We all have not exactly skeletons in our cupboard, perhaps, but things about our private lives which are embarrassing, perhaps, or shameful perhaps, or just overly intimate or -- I mean, medical things, for example, and the whole question is whether you're entitled to bring these up. People aren't necessarily doing something wrong because, for example, they are now an MP but years ago they had a brief affair with a woman not their wife, or a man not their husband. It doesn't follow, does it? So this line that privacy is for paedos was a very good News of the World headline, and I thought it was quite insupportable. Q. Can we turn now to an article that you wrote on December . It's entitled "Scandal on Tap" and there should be a copy for the projector. LORD JUSTICE LEVESON: Sorry, what date? MR BARR: It's December , sir. LORD JUSTICE LEVESON: I don't know that my copies are in chronological order. MR BARR: It should be immediately behind the tab divider in your bundle, sir. LORD JUSTICE LEVESON: Yes, that makes an assumption. MR BARR: In that case, it's immediately after the -- LORD JUSTICE LEVESON: I have it, "Scandal on Tap". MR BARR: That's right, sir, thank you. LORD JUSTICE LEVESON: Yes. MR BARR: This is an article you wrote after Clive Goodman's guilty plea, isn't it? A. Yes. Q. And you discuss the ethics of journalism and various respects of it. Can I alight, first of all, please, on the second paragraph, where you say in the second sentence: "But there is not a newspaper or TV channel in the country what has not, on occasion, got down in the gutter and used questionable methods." Can I ask you, first of all, was that a statement that you believe to be true or was it using a little bit of dramatic licence? A. It was put in a blunt and provocative way because I was hoping to stimulate people to read the rest of it and enter into the debate without immediately rejecting what I was about to say on the grounds of: oh, it's just the Guardian being holier than thou. I was trying to be as frank and candid as I could be. I wouldn't say I embellished it but I would say I put it in a more blunt way than I might normally. Q. I see. To what extent was this assertion based upon factual knowledge that you possessed at the time? A. Well, I was racking my own brains for all the things I've done that people might have questioned over years in both newspapers and television. Q. I certainly don't want you to name them or indeed the titles they were working for, but were you thinking about the actions of others as well that you might have known about? A. Well, I've come across lots of newspaper malpractice over the years, and you know, I mention a few things there. Q. What I'm ultimately coming to is to what extent could Lord Justice Leveson use this statement as an evidential basis? A. Well, it's not evidence because there's no detail there, is there? It's a sweeping assertion designed to position me in a particular place to start off the argument. Q. So really, as you say, something to get the readers' attention? A. Yes. Q. All right. Let's move two paragraphs down: "I've used some of those questionable methods myself over the years. I, too, once listened to the mobile phone messages of a corrupt arms company executive -- the crime similar to that for which Goodman now faces the prospect of jail. The trick was a simple one: the businessman in question had inadvertently left his pin code on a print-out and all that was needed was to dial straight into his voicemail." And you go on to say: "There is certainly a voyeuristic thrill in hearing another person's private messages. But unlike Goodman, I was not interested in witless tittle-tattle about the royal family; I was looking for evidence of bribery and corruption. And unlike the News of the World, I was not paying a private detective to routinely help me with circulation-boosting snippets." Now, you are careful to point out those distinctions between what you did and what Mr Goodman had been doing. Does it boil down to you thought that what you were doing was in the public interest and therefore it was ethical? A. Well, I don't hack phones normally. I don't hack -- I have never done anything like that since and I'd never done anything like that before. On that particular occasion, this minor incident did seem to me perfectly ethical, yes. Q. As a matter of law, there isn't a public interest defence to intercepting -- LORD JUSTICE LEVESON: Don't tell me I should have cautioned Mr Leigh. MR BARR: There is a code for Crown prosecutors. LORD JUSTICE LEVESON: Yes, right. MR BARR: Which may be your get out of jail free card, and so I think the answer to the chairman's question is no, but do you think there is a discrepancy between the lack of an express public interest defence to interception of communications and the express defence in the DPA? A. Well, I'd prefer it if there was an express public interest defence. I think, in fact, there probably is an implicit public interest defence in cases like that because -- and I listened to the former Director of Public Prosecutions, what he had to say about this, Sir Ken Macdonald. There is always an implicit public interest element about whether to prosecute or not, and I like to think that if the incident I've described there came to the attentions of the DPP and I was asked about it, the DPP would conclude that there was no public interest in seeking to prosecute me or another person for doing something like that, and that's a backstop that the law has, isn't it, to stop it making an ass of itself. LORD JUSTICE LEVESON: There are actually a number of back stops, to be fair. I think that first of all there is the possibility of a specific defence as in section . Secondly, even if there isn't, there is the code, and one of the things that I will need to think about is whether to encourage the director to issue a guideline, rather as he has done in relation to assisted suicide, to provide some clothes on the framework of how discretion will be exercised. The next is the jury, as we discussed before the Ponting defence, and finally there is, I hope, at the end of the line, a sensible judge who would take a view that even if it is a strict breach of the law, and even if there isn't a public interest defence, then this is not a very egregious problem. So there are a number of hoops through which a journalist would jump or not jump, as he might prefer, which could cover the situation. That's not intended to give you comfort for the future. A. I think I would say a journalist ought to be prepared to face up to the consequences of what they've done. I mean, if I do something that I think is okay in the public interest, I have to be prepared to take the consequences, and it's very reassuring to hear you say there are that many backstops. LORD JUSTICE LEVESON: Well, I think there are. I'm just listing them from my experience of the criminal law. A. What I think is not okay is that the law shouldn't move against a journalist just because they're afraid of the power of the press, and that seems to be what's happened with the News of the World cases. I think. MR BARR: You go on in your article to say: "That is my defence when I try to explain newspaper methods to my current university journalism students, some of whom are rather shocked." That's why I asked you earlier on about what you teach in this respect. What are your students shocked by? A. Well, I try to shock them. I try to say to them: don't imagine that investigative journalism is just a case of a knight in shining armour riding about on a milk white steed doing easy things. You have to do difficult things. Journalism of this kind requires sometimes guile. It requires sometimes making hard choices. If you're to get results, then you have to sometimes, you know, go up to the edge of what's acceptable. So you need to have a clear ideas in your own minds of what is acceptable and what's not, what is in the public interest and what's not. So I'm trying to wake them up to the hard choices and the difficulty decisions that I get paid to make. Q. If they need any indication of how grubby things might get, you go on in your article to say: "I did not turn up my nose when the notorious Benjy the binman emptied a bag of stinking rubbish onto my carpet. He wanted to show me incriminating statements about Saudi arms deals which a City law firm had been too idle to shred before putting out on the street for collection." LORD JUSTICE LEVESON: This is the example you've already given us, is it? A. No, this is a different example. LORD JUSTICE LEVESON: You gave an example of being asked for a large sum of money. A. Yes, that was -- LORD JUSTICE LEVESON: That was different? All right. A. That was different. Another one. LORD JUSTICE LEVESON: I see. MR BARR: "I read the information with interest. I did, however, refuse to pick up the other gossipy documents about celebrities that Benjy was also peddling and when he wanted large amounts of cash for copies of those documents he had that were rather more in the public interest, I sent him off to the Sunday Times." Can I ask you to be clear about what the objections were on an ethical ground to buying material from Benjy the binman? Was it simply financial or was it more than that? A. No, it was more than that. Benjy, who was a notorious figure in Fleet Street, had presented himself to me unsolicited and was waving these pieces of paper at me. I thought those particular pieces of paper were important and in the public interest and should be made known. I didn't want to pay him for them because I didn't want to encourage him. If he was going to do this stuff of his own volition as a law unto himself and put it in front of me and I was going to take a view on whether it was appropriate to publish it or not, that was one thing. I didn't want to be commissioning the man, as it were, to go and root through people's dustbins. Q. I see. There was some evidence given by Mr Davies about this instance. Did you hear that evidence? A. I have seen that evidence, yes. Q. And he suggests that you were very clever in passing on Benjy to the Sunday Times because it resulted in you obtaining the information but somebody else paying for it and the matter coming out into the public domain in any event. Do you agree and accept Mr Davies' evidence or is your evidence different? A. I think what Nick Davies meant -- he meant it as a compliment, he told me. I didn't regard it as clever so much as a solution to a ticklish ethical problem. Here am I. I'm a professional journalist. When information comes my way that's of importance, I want to know about it so that I can make a judgment about what to do about it, but I didn't want -- for the reasons I've given, I didn't want to be paying Benjy and encouraging him in his sordid behaviour. So what was I to do? And I thought it was quite a good compromise, that he could deal with newspapers who were less fastidious than me about paying, but I would continue to have sight of his stuff, so that if anything came along that was important, I'd know about it. That was my thinking at the time. Q. You used the phrase "continue to have sight of the material". So was this an ongoing relationship? A. Well, it went on for a little while. It went on for a little while, and I said to him, "If you have things you think would be of interest to me, then I'd like to see them", you know, and he said for a while: "Yes, okay, I'll do that." But his primary interest was, of course, in the newspapers who were going to pay him, and indeed mainly what he was doing was tittle-tattle about celebrities in which I was not interested at all. Q. And so what was in it for him, continuing to show you material? Was it that you would put him in touch with somebody who might be interested in paying him for it? A. I think -- he's a rather erratic person and I'd hesitate to look into his mind. At the time, he seemed to feel friendly enough towards me because, you know, I would be nice to him. I would be civilised to him and I would say, "I'd like to help you". I would say all the things you'd say to somebody that you want to keep in play, as it were. I'm sure you do understand that in the world of journalism, just like the world of being a detective in the police force, you have to deal with some rather unsavoury people because they may be in possession of important evidence. Q. Yes, because what I'm building up to, of course, is the ethics of having a continuing relationship, obtaining information from a man who is obtaining it in the way that he was. Did you think that the public interest in what you were receiving justified your conduct? A. Yes. Evidently I did. That was the decision I took, that it was acceptable in the public interest to structure the brief relationship in that way. Q. Even though he was stealing the rubbish? A. Well, my stance was I wasn't encouraging him to steal rubbish. It wasn't -- I didn't give him the idea. He was going to continue to do it whatever I did or said. Q. You go on in your article to deal with stings and then blagging, and you give the example we've already touched upon with Mark Thatcher. You discuss the public interest. I'd now like to settle on a paragraph on the second page of the article. It's the fourth paragraph down. It needs to be read with the end of the third. In the third, you've said that the rule should be that deceptions, lies and stings should only be used as a last resort, as indeed you've told us today. A. Yes. Q. At the end of that paragraph you say: "I have had my share of confidence injunctions, lost libel actions and threats of prosecutions under the Official Secrets Act. These tend to breed disrespect for the law, and a nonchalant attitude to these billionaires and cabinet ministers who wheel in solicitors when it suits them to try to conceal their own crimes and misdemeanours." I'd like to explore with you in what sense you meant "disrespect for the law". A. Well, just as earlier on when I spoke about the voyeuristic thrill of listening to other people's private messages, I was trying to think myself into the frame of mind that takes some journalists, particularly tad journalists, so cavalier about what they do and I was trying to think of the pressures that work on them, and one of the pressures that does work on all journalists -- not just tabloid journalists, not just serious journalists -- is that you do collide from time to time with the law or the law as it's being enforced. At its most crude, when you're trying to take on rich people and powerful corporations, they can and often do hire fleets of very expensive lawyers in order to try and intimidate you by threats of libel, for example. This makes you feel rather hostile to the fleets of expensive lawyers who come after you, and it makes you fell that the law is being misused against you. When you've been subject to injunctions and super injunctions wrongly, as I have and other journalists have, things that are not about privacy issues, you very much sympathise with what Ian Hislop, the editor of Private Eye once called "censorship by judicial process". What this means is you're a journalist doing the right things, trying to expose wrongdoing of various kinds. Your opponents then go to court and they get an injunction from, let's say, not particularly well-informed judge, and it then costs you and your newspaper immense amounts of time, which is distracting, and money, which you may not have, to fight your way out of the legal mire into which you've become entangled by your wealthy opponents, and I think that's an abuse and I think "censorship by legal process" is a good phrase to describe it. When you're on something like the Guardian, you have legal resources so long as we still, you know, get some revenue, to fight these things. When you're a small magazine or when you're, say, a scientist saying something at a scientific conference or whatever, you just don't have the resources to fight that and so the lawyers sit on you and you can't fight your way out of the legal mire because you don't have the money or the time. Those are the kind of experiences which lie behind me saying that some of these collisions tend to breed disrespect for the law. What I mean is that the law can be abused against journalists trying to do good things. LORD JUSTICE LEVESON: I'm not so sure that is quite how I'd read that sentence but I'd just like to take forward the idea that you've just identified, because what I would like to think about, and I want everybody to think about is how you solve that, because on the one hand what you are criticising is the abusive use of the law to smother appropriate debate or discussion, but it's not a million miles away from having the problem that the journalist is abusing his or her position to interfere with the legitimate activities of whatever. I mean, these are two sides of the same coin. The problem with it that you've just identified is that it's all too expensive, because you have very distinguished Queen's Counsel and solicitors and lawyers and everybody all climbing out of the woodwork, looking at the authorities, trying to analyse the position, engaging judges on a Saturday night, who is the duty judge -- a position which I myself have been in -- who is trying to do the right thing. So all that, but if not that system, what system is there or should there be to resolve that sort of issue? I don't necessarily ask you to deal with it now, unless you already have a prepared solution in your inside pocket, but it is a very, very important issue, and to my mind one of the crucial questions which I have to address. A. There are a couple of things I'd like to say, if I may. Obviously journalists do things wrong sometimes and the law is there to stop them. Prior restraint is a very bad way forward. I think that's a principle that's been lost sight of. When you hand out injunctions, which is then a big struggle and an expense to struggle out of, you're applying prior restraint. "Prior restraint" is another word for censorship. I know that in privacy cases everybody says, oh, well, you have to have an injunction because otherwise the cat is out of the bag. I don't think that's a good argument. I think what you need is punitive damages. If you had punitive damages, a newspaper will be very much deterred from invading somebody's privacy if they know that the last time that happened, it cost them million, and I think punitive damages is a much better way to go than censorship in advance. LORD JUSTICE LEVESON: I understand that, but then you have to deal with Mr Mosley's argument that his life, which had been lived motor racing and the rest, is now defined by an article that the court ruled was an inappropriate invasion of his privacy. A. Yes, but my argument is that that article would never have been published and that video would never have been put out if the News of the World had known that it was going to be -- it was going to be penalised for millions of pounds as a result of doing so, so they wouldn't have done it. They did it with impunity. So I think if you had a deterrent effect, you wouldn't get these invasions of privacy and I think that would stop the mischief. The other side of this is if newspapers commit libel, which they sometimes do, sometimes because they make mistakes as we all do, there needs to be a simple, quick, cheap method of resolving those disputes with ordinary people that doesn't cost a fortune, that doesn't enrich lawyers with per cent success fees to the point where newspapers just can't afford to fight them even if they have a good case. So you need a tribunal there that is going to resolve these things sensibly without fleets of lawyers. If you could think of a way of doing that, I'd be very grateful. LORD JUSTICE LEVESON: Yes. MR BARR: Looking at another question that arises from the phrase "breed disrespect for the law", is there any connection between the disrespect which you've described emerging from the use of the law to thwart your journalistic endeavours and willingness to use borderline or illegal methods to obtain information about institutions who may have all this legal muscle? A. I think you're pushing this a bit far with me, really, because the Guardian and I, we don't do this bad stuff as a rule. These issues don't really -- aren't really problems for us. Move the time, we're extremely well behaved, and as I say, I've tried not to be holier than thou about it and I've tried to think myself into the forces that operate on all journalists in the tabloid world as well, but you need to direct these questions towards the kind of newspapers that are doing the bad things, because they're special in the pressures on them, the people who own them, the way they're constructed. LORD JUSTICE LEVESON: I think we probably shall. MR BARR: Indeed. Just a final question on the article. It's in the paragraph which starts "Thomas says there is a public interest defence available under the Data Protection Act", which is presently right at the bottom of the screen. Could that be raised up, please? You go on to say: "... and honest journalists have nothing to fear. We shall have to see about that. Personally, I am resigned to seeing the tabloid cockroaches doused with a spot of legal insecticide." LORD JUSTICE LEVESON: There's some journalistic-ese for you. A. Sorry. LORD JUSTICE LEVESON: Well, you weren't writing it for me. MR BARR: You may wish that word to be your evidence in relation to this part of your article, but in case it isn't, can I ask you: are you intending to communicate a real disdain for the practices of tabloid journalism? A. Yes, it's very upsetting because it does bring our trade into disrepute, and because they fail to clean up their act it makes it more difficult for people like me, people on serious newspapers trying to do worthwhile things. Q. Why did you use the verb "resigned"? Because it suggests a certain reluctance to see the law changed and earlier today you've told us that you're in favour of the imposition of custodial sentences for grave breaches of Section . A. Well, resigned because, as this Inquiry is obviously well aware, there are threats to the freedom of the press every time you introduce new regulations and the words "statutory regulation" make me feel very uncomfortable. It is not an accident that dictatorships lock up journalists as one of the first things they do, and very often, prior to locking them up, they set up systems for licensing them and regulating them. So naturally, I don't look forward to that prospect with any enthusiasm. So as I say, I am resigned -- because of the refusal of the tabloid media to clean up their act, I'm resigned so something being done but I'm not happy about it. Q. That runs into some evidence which Mr Davies gave last week when he said that he'd -- his thinking had evolved to the point where he'd concluded that the press was incapable of self-regulation. Is that a conclusion which you now share? A. I don't like this phrase "the press". The Guardian, for I which work, as far as I'm concerned, is capable of self-regulation and we do regulate ourselves quite well. You know, we have all the code you've talked about. We have a reader's editor who is independent, who people can appeal to. We publish corrections in what we think of as the main leader page of the paper. We do regulate ourselves. So the bit of the press that I'm currently working in, we do self-regulate it. I think the tabloid press is incapable of self-regulation. Q. The one technique that I don't think was mentioned in the article we've just looked at was bribery. It's made very clear in material from the Guardian that the Guardian doesn't do that, but can I ask you this: do you consider that the bribery of public officials to obtain information is one of those matters which is completely ethically off limits? A. Yes, it's a crime. Q. Moving now to the PCC. You've written about the PCC. It may not be necessary to go to the article but could you help us, from your understanding, from your experience, as to, first of all, what are the strengths of the PCC? A. The only strength of the PCC is that it does circulate newspapers with pleas that they should stop harassing people. The other strength of the PCC, in its own eyes, I guess, is that it works as a sort of political fixer, managing to keep the government and the royal family off the backs of the newspapers, especially when they've gone too far. These are not very great strengths, in my view. Q. So we turn inevitably to your opinion about the weaknesses of the PCC. What do you think these are? A. If you think the PCC is a regulator, then you are wrong. One is wrong. Insofar as it holds itself out to be a regulator, it's a fraud and a bogus institution. It doesn't regulate, it can't regulate and it doesn't want to regulate. What it wants to do is fix, and keep the government off the back of the popular papers. Q. Can I take it from that that you would be in favour of abolishing the PCC and coming up with some other alternative solution? A. Personally, I would be in favour of abolishing the PCC. I say that because it's not necessarily the policy of my paper corporately, which is a bit more optimistic than I am about the possibility of reform. Q. Finally, the question of the Internet and new media, which are assuming increasing importance in many aspects of our lives, but in particular in the propagation of news and also the circumvention of court injunctions. Is this an issue which, as a professor of journalism, you've given any thought to from a regulatory point of view? A. The Internet makes it much more difficult to control and censor what appears in British newspapers and we no longer live in that world where you can control it. I've watched this over the years. All of us who have been around for a long time remember the Spycatcher affair of or so years ago, where the issue was how slippery was a book, and the book which had been banned in Britain was published by publishers in hardback form in Australia and in Ireland. So in fact, you know, that idea that information can slip and slide about between jurisdictions isn't new. What is new, of course, in the world of the Internet, is that everything happens instantaneously, so it's much more slippery and any laws do need to take that into account and they need to take reality into account. We've had some situations, which have been very unreal, in which things have been banned that everybody is reading about on the Internet and we have to find a way of being realistic. Q. Just to tease out those potential solutions to those broad problems, one method might be to regulate the Internet content that comes into the jurisdiction, if that were technically possible. Would that be a solution that would find favour with you? A. Well, that's a sort of Chinese solution. Q. It might be described that way. A. I don't think many people would be keen on that. It would cast us not as an open society and it would -- it wouldn't work, either. Q. And if you can't use the Chinese solution, what might you do? A. Well, one thing you can do is take a deep breath and learn to live with it. In criminal cases, judges have now, I think, wearied of berating juries that they should not look things up on the Internet. Instead, they've taken a more realistic view. People will look at things on the Internet and they tell juries how to regard that or how to disregard that. So, you know, I think it's better not to be King Canute in these situations. MR BARR: Thank you very much indeed -- I'm just about to be passed a note. Subject to the note, those are the questions I was going to ask you, save for the last questions we save for all witnesses, which is if there's anything else you would like to say to Lord Justice Leveson about the future regulation of the press, now is your opportunity. A. Well, I think I've sounded off quite enough already. MR BARR: Just a moment. I'm going to need some -- LORD JUSTICE LEVESON: The real issue, while they're resolving that, is to try to find the right place. What you've identified for me is -- you say, "Well, for the Guardian it's easy because we're there, but we don't have the same pressures or the same interests by our readers that other newspapers have", and therefore one has to be careful about seeking to read across what works for the Guardian into other papers because of the different dynamics of the organisation. A. (Nods head) LORD JUSTICE LEVESON: The problem is going to be how you read what is good about the approach to journalism that you have spoken about into the context that other journals, perfectly legitimately, operate within. A. Yes. I mean, I always used to argue that liberty was indivisible, and that if we lived in a country with free speech, then we must let everybody do things, particularly things we don't like. But as I said, I am now resigned to the fact that something has to be done. MR BARR: Just a couple more issues to explore. They're based on the theme of circulation. The first is this: I think you would readily accept that the circulation of the tabloids is much greater than the circulation of the broadsheets, including the paper that you work for. A. Yes. Q. Is there something to be said for the argument that a newspaper that prints a certain amount of tittle-tattle but also some serious stories is a very effective way of mass education, mass communication on serious issues? A. What's the question, exactly? Q. The question was: do you see a benefit in a newspaper publishing a mixture of tittle-tattle and serious stories in order to reach a wider audience with the serious message? A. Well, obviously yes. Nobody objects to people publishing tittle-tattle if they want to and people reading tittle-tattle if they want to. Why this Inquiry has been set up, I guess, is because the tittle-tattle is being got illegally, intrusively and sometimes cruelly. Q. So it's a question of method rather than content? A. I think so, yes. Q. And the second question is: the market for a purely serious newspaper, which doesn't have any tittle-tattle in it, is necessarily limited, isn't it? A. It would be nice to think that more people would take things more seriously than they do, but obviously, yes. MR BARR: Thank you. LORD JUSTICE LEVESON: The Lord Chief Justice in A v B said the courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest. A. The result of this scandal is we have had one fewer newspaper published, and that wasn't because of -- that was because of their own behaviour or misbehaviour. LORD JUSTICE LEVESON: Yes. That's a salutary moment upon which to end. MR BARR: Mr Leigh, thank you very much. LORD JUSTICE LEVESON: Mr Leigh, thank you very much indeed. MR BARR: Sir, that concludes our evidence for the morning. I understand that Mr Atkins is lined up to give evidence at o'clock. LORD JUSTICE LEVESON: Thank you very much, Mr Barr. Right, we'll resume at o'clock. (The luncheon adjournment) Transcript-of-Morning-Hearing-6-December-20111.txt
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-6-December-2011.txt LORD JUSTICE LEVESON: Yes. MS PATRY HOSKINS: Good afternoon, sir. The only witness this afternoon is Mr Chris Atkins. I'm just going to ask him to come up and sit and make himself comfortable. Sir, before he's sworn and just while he's making himself comfortable, I just want to remind everybody that the cameras are switched off for this session. Mr Atkins will be here and there is picture and audio in the hearing room and annex only. Nothing will be going through to the website broadcasters until after we've finished showing the clip of the film that we're going to see. LORD JUSTICE LEVESON: All right. It ought to be clear that I have agreed the restriction to the publication of the evidence of this witness, such that although it will be carried audio, Mr Atkins will not be seen on screen. MS PATRY HOSKINS: That's correct. LORD JUSTICE LEVESON: I have done so for reasons which I have accepted. Sorry, yes, Mr Brown? MR BROWN: Of course, I don't know what those good reasons are and I am prepared to accept they were persuasive. Could I just enquire whether your Lordship, when exercising the discretion, took into account the fact that Mr Atkins' image is easily obtainable on the Internet by both a Google search and by going to the Guardian Media website, where it's actually possible to see, even, I think, now but certainly this morning when I looked, a six-minute video clip of an interview with Mr Atkins, full face, in which he promotes Starsuckers? LORD JUSTICE LEVESON: Well -- MR BROWN: I'm sorry, if I could just add: if the issue is to do with his appearance, then, in my submission, that needs to be borne in mind, that anyone can find photographs and a video of his appearance on the Internet. Indeed, it's just been done by the Associated Newspapers team in court. LORD JUSTICE LEVESON: It might be so, but the information that has been passed to me suggests that there is good reason why it would not be in the public interest that his image be displayed as publicly as I have noticed that images emerging from this Inquiry are being displayed. I am not suggesting -- and it hasn't been suggested to me -- that somebody could not in some way find out what he looked like but the question is whether what he looks like now could be linked to what he is presently doing. Mr Brown, I do not believe that making this order in any sense impinges the free exchange of information about the conduct of this Inquiry. Several witnesses have requested different types of protection, the most rigid being in relation to a witness who is known only as HJK, whose visual appearance and voice were not displayed, but his evidence was given in public and went on to the website almost as soon as it had finished after it had been checked to ensure that he had not disclosed any information. There is another witness who I know is going to come who has sought similar types of protection because of the work that he is generally involved in, and each one of these decisions I have to consider with care, and I do, and in my judgment the balance in this case is clear. MR BROWN: You've ruled, and all I wanted to be sure was that you knew how widely available his recent image was. LORD JUSTICE LEVESON: Yes. Mr Brown, you're right, but that's not to say that had you said something different to me, I might not have changed my mind. But nothing you have said to me in my judgment impacts on the particular reason for this particular request. In other words, it wasn't a discourtesy that I didn't ask you before I ruled. Right. MR CHRISTOPHER WALSH ATKINS (affirmed) Questions from MS PATRY HOSKINS MS PATRY HOSKINS: Thank you, Mr Atkins. Could you please state your full name just for the record. A. My full name is Christopher Walsh Atkins. Q. You've provided a witness statement to this Inquiry which you should find in the folder which we've prepared for you, right in front of you. Can you confirm that the contents of that witness statement are true to the best of your knowledge and belief? A. Very much so, yes. LORD JUSTICE LEVESON: Let me just ask this question as well. Your image is not being displayed for reasons which are set out in a request made to the Inquiry by you or on your behalf. Are those reasons true? A. They are. LORD JUSTICE LEVESON: Thank you very much. MS PATRY HOSKINS: You've already also provided a number of annexes or exhibits to your witness statement, and they are essentially transcripts of either telephone calls or meetings that you had with various journalists. We'll turn to those in more detail later in your evidence, but what I want to confirm is this: is the content of those transcripts true to the best of your knowledge and belief? A. Yes. Q. Are they full verbatim transcripts of the telephone calls and meetings that you had with the journalists involved? A. Yes. Q. Are they full and complete, ie does the transcript record every word that passed between you and the journalist on each of those occasions? A. No. In the case of the two additional transcripts supplied for the People and the Sunday Mirror, it's, I think, approximately half of the meeting. Q. Can you tell us why you haven't provided full transcripts to the Inquiry? A. There's a basic journalistic principle that you don't put unedited journalistic material into the public domain unless it's absolutely necessary. This is something, I think, that the newspapers in question will understand themselves, that they would never put unedited journalistic material into the public domain. It was actually the request of this Inquiry that I put larger sections into the annexes, which I've decided to do. There's nothing that's been left out that would in any way change what is being alleged of the newspapers and their behaviour. Q. I think I'll leave that there. If anything else arises, we'll deal with it then. Can I ask you, pleasure, to turn to the first page of your witness statement. I want to ask you very briefly about your background. Paragraph , you confirm that you've been working in the British film industry for about years. In your s, you produced a series of independent feature films with Richard Jobson, Sixteen Years of Alcohol in , nominated for five independent British film awards -- and you won two -- a number of other films, including The Purifiers and A Woman in Winter. You then went on to direct the feature documentary Taking Liberties, about how the Blair government eroded civil liberties under the guise of the war against terror. That was released in . It was nominated for a film BAFTA in for best first time writer/director and was screened on Morein the True Stories strand. Is that correct? A. That is correct. I think they're called British Independent Film Awards. I've just noticed that error. Very upset about that. Q. We're going to show an extract from the film Starsuckers in just a moment. Let me ask you about now how you came up with the idea, if I can. You refer to this at paragraphs and , but perhaps in your own words, if you could just tell us why you decided to make the film which ended up being Starsuckers in due course. A. Over the course of making Taking Liberties, we were looking at the reasons that various laws had been passed that were eroding our basic rights and freedoms, and in lots of different cases, we found that the tabloid press -- and certainly the Murdoch press in particular -- were playing a very active role in increasing a climate of fear in amongst the British public, and there were certain cases -- for example, the raids in Forest Gate -- where the Sun and the News of the World were just actively smearing the suspects with information that presumably had been fed to them by the police. You also saw, in the case of Charles de Menezes, they effectively smeared a dead man. There were all sorts of lies put into the media and happily printed by various newspapers about Charles de Menezes that turned out to be wrong. We saw that no one was really correcting the press on this. We saw that the rest of the media was very unwilling to expose wrongdoing in the tabloids and I also read Flat Earth News by Nick Davies and I saw a wealth of material there, ample prima facie evidence for all sorts of wrongdoing in the British press, particularly in the tabloids, and no one else was following this up, and I just thought it was a very kind of fertile area to make a documentary about. Q. You tell us at paragraph that you made the film over a period of two years and you released it in ; that's correct? And you go on to tell us that the chapter that's of most relevance to this Inquiry is the section on the news media, and that lasts approximately minutes. A. Mm-hm. Q. We'll come onto that. We will show that, but if I can break it down this way. There seem to be four particular areas that this part of the film covers: paparazzi, and the way that they operate; secondly fabricated, inaccurate stories; thirdly, kiss-and-tells, we'll see in a moment, and then fourthly, what you describe, I think, as criminality of the tabloids. This is also referred to as the medical records sting. A. Mm-hm. Q. The film will be self-explanatory. Before we go on to show that, I'd just like you to explain whether you tried -- before exposing the tabloids in the way that the film does, did you ever try to speak to any of the journalists or any journalists on the record about their working practices? A. Absolutely. I mean, we tried extensively for well over two years to try and get people to go on record and tell us what really goes on in tabloid newsrooms, and I think that the public at large had a right to know that, because the public pay for news through their -- the cover price and through absorbing advertising, but are pretty much left in the dark as to the veracity of the stories and the techniques used by the journalists to acquire them, and we asked -- I couldn't give you an exact figure, but I'd say definitely probably about two dozen people to go on record. We put in formal requests to all sorts of publications and were turned down. I remember particularly the Express and Northern & Shell said they had a blanket policy of no filming anywhere the buildings ever, for example, and I believe the same is true of Wapping. And we're not the only people to have tried it. I mean, many people over the years have tried to make documents about what life's like -- you know, how the tabloids operate, and they have a very strict sort of no filming policy, and even to the extent where you -- very rarely do you get journalists and editors and proprietors even going on record. So you don't have the editor of the Sun going on the Today programme to defend themselves. It as kind of -- I think this has changed now after the death of the News of the World, but there was this kind of brick call wall, this sort of fortress mentality, that you don't explain yourself, you don't go on record, you don't discuss these things. Q. In the light of that blanket refusal, what did you decide to do? A. We decided to use subterfuge, being the only sort of option left available to us, and we think in each case the subterfuge was proportionate to what it was we were trying to expose, and we knew when we were making the documentary, especially given the experience of my previous documentary, Taking Liberties, that we definitely wanted this to appear to television. So we set ourselves a very high professional ethical standard because we knew that it would have to go through an Ofcom audit and -- we'll come to this later but the regulations in Ofcom are sort of much, much higher than they are for the press, so we knew it had to withstand that, but we set about using various means of subterfuge in the public interest to investigate how the tabloids behaved. Q. Did you have legal advice before -- A. We had extensive legal advice throughout that continues to this day, but yes, we took extensive legal advice. Q. Would you like to explain a little bit about what you were doing in each of those: paparazzi, fabricated stories, kiss-and-tells and the medical records sting. Would you like to give us a bit of an introduction or should we just show the film? A. I think just -- I'll quickly run through each one because if you look at the paparazzi, there's actually -- in the course of making a documentary like this, you film over two years so you collect a vast amount of material and only a fraction actually goes into the film and it's my job as director to decide what goes in and what goes out. There's various things -- if I was making the film specifically for the Inquiry, I might have made it differently, because there's lots of material that we sort of found when the Inquiry was announced we thought might be of interest. So for example, with the paparazzi section, there was a guy called Owen Beanie who ran -- I think he still does run -- World Entitlement News Network and I got him to speak very candidly about the Britney Spears situation, which then was sort of exploding in Los Angeles. I won't read it all out, but there's a section here in the transcript which I think is worth reading about how they actively misrepresent situations, and in Spears' case was trying to make her out to appear suicidal and were happily selling these images and the story attached to all British news outlets. And not just the tabloids; everyone was buying these images. The point we make obviously when we look at Kev the pap in Soho is that essentially the people were accusing Pete Docherty of a crime which he wasn't. The bit that got us the most attention is the fake stories, and I think the fundamental question there is: will tabloid journalists check facts? That was kind of our initial decision when we went out to do that. And kiss-and-tells -- again, it was something that we had a huge amount of off-record information about, how kiss-and-tells are actually engineered by the tabloids and how they have this sort of ever-replenishing army, shall we say, of kiss-and-tell girls who essentially almost sort of -- not sent out, but targets are suggested to them. So they'll know if they sleep with a certain celebrity, they'll get a certain amount of money, but we weren't able to put as much of that in as we wanted because a lot of the information wasn't particularly reliable because of the nature of the sources. But yes, then with the medical records sting, we were essentially looking just to see if tabloid journalists would act within the law when it came to sourcing stories. So that's the set-up of what we're about to see. Q. We're just going to show a very short clip on churnalism. Can you tell us what churnalism is? A. I think the phrase was coined by Nick Davies, which is this process by which a press release will be regurgitated as news and how public relations has managed to infiltrate all parts of the British news media. Nick Davies and I think Aberystwyth University did a study and they found that per cent of news articles in the national media are wholly or partly sourced from public relations, and public relations is essentially there to not serve the interests of the readers and viewers; it's there to serve the interests of the advertiser or the politician or whatever it is. What happens is people write a press release and they send it in to the newspaper and the newspaper cuts and pastes that and puts it as a news article and presents it to the public as news that's been sourced and verified and everything else, when of course it's nothing of the sort. So the Media Standards Trust came up with this rather clever idea for a website called churnalism.com, where people could insert press releases and find out which news articles had been cut and pasted from those press releases. They wanted to publicise it and they came to me and said, "Would you help? Would you do some hoaxes?" I seem to have this reputation now as a sort of hoaxer but I do actually do lots of other work. And I thought it sounded like a great idea, so we basically created a series of fake press releases and sent them into news rooms to see which ones would get picked up. That was earlier this year. Q. I will ask you about that in more detail. A. Okaying. Q. If we just show the extract. LORD JUSTICE LEVESON: Just before you do, you've said something which was something of a tease. You said that if you'd been making the film for the Inquiry, you might have put some different material in than you did in fact put in. A. Mm. LORD JUSTICE LEVESON: You said that some of it you'd included in your statement, and the statement is there for us to see. But do I gather from that that there is, on some cutting room floor, a great deal of other material which is relevant to the circumstances of the Inquiry? A. I like to think I've been working quite hard at this, so I'd like to think that everything I think is relevant to the Inquiry is in my statement and in the annexes as well. There are some extensive annexes. The letter from Bob Geldof, for example, runs to ,words and it's there. You can read it or not but -- LORD JUSTICE LEVESON: Thank you very much. That's the confirmation I wanted. MS PATRY HOSKINS: Sir, once the two clips finish, apparently we will need to rise for a very short time while we ensure that the feed is back on; is that right? LORD JUSTICE LEVESON: Because the film isn't going anywhere. MS PATRY HOSKINS: The film isn't going anywhere, but the audio will need to the switched back on once the film has been shown. LORD JUSTICE LEVESON: Right. MS PATRY HOSKINS: Don't ask me any difficult questions about that, please. (Starsuckers Media Section DVD is shown) (Churnalism Short Film DVD is shown) MS PATRY HOSKINS: Sir -- LORD JUSTICE LEVESON: Do you want to put the audio back on? MS PATRY HOSKINS: It will just take a few minutes, as I understand it. LORD JUSTICE LEVESON: All right. (A short break) MS PATRY HOSKINS: Thank you very much indeed, sir. I think now the audio feed is back on. Hopefully no camera, just audio. LORD JUSTICE LEVESON: Right. MS PATRY HOSKINS: Mr Atkins, come back to my questions. I am going to deal briefly first with the paparazzi. We've seen the excerpts from the film dealing with that. I don't want to dwell on it for too long but if you look at paragraph of your statement, you explain you approached Mr Beanie of WENN and he allowed you to accompany some of his photographing when they were following Britney Spears? A. Yes. Q. This was a time of great turmoil for Ms Spears, as we know, and you say you saw repeated incidents of paparazzi breaking the law, including life-threatening dangerous driving, trespass, breaking and entering and violence. Can I just assume for the moment that this all took place in the United States? A. Yes. Q. We know that you followed Kevin Rush, the paparazzo, in the UK, but did you ever witness any of that type of behaviour in the UK? A. I need to be careful what I say. Not as bad, but certainly dangerous driving is an absolute given for paparazzi. Violence, yes. It's a very tough world, especially now that everyone has a mobile phone and can take pictures. You see lots of people who aren't really trained photographers kind of converging around celebrities and celebrities themselves -- sorry, paparazzi get very angry that members of the public are stealing their income. But you also see it the other way around. You see members of the public getting angry at paparazzis for trailing the celebrities, so we did see quite a bit of violence, but not anything as bad as the Britney Spears situation. Q. Before I turn away from the paparazzi part of your witness statement, is there anything that you'd like to say? A. No, I think it's all covered in this. Q. The second thing I want to ask you about is the fake stories or the accuracy of tabloid journalism. This part of your witness statement starts at paragraph . We saw, when we saw the extract of the film, what you were trying to do. A researcher from your team would ring up one of the tabloids and give an entirely false or partly false story and then you would wait to see whether it would be picked up and then printed in that particular tabloid the next day. Have I summarised that accurately? A. Yes, yeah, that's about right. The entirely false -- what we did is we researched the celebrity's location, so -- and that actually we did quite often from the tabloid newspaper's website itself. So where they were was correct and everything else was fictitious. Q. So that the story would have a ring of truth? A. Yeah, it would also be able to be sort of checked within the realms of the information that was already in the public domain. Although something that did happen while we were doing it -- we didn't even run this story, but I think the Metro managed to have Bono on both sides of the Atlantic at the same time, so even outside of what we were doing, we could see that that didn't always stack up for the news desk. But yeah, we decided to stick with location, and everything else above that was fantastical. Q. There are actually two paragraph s of your statement, I have noticed. A. I'm sorry about that. Q. The second of the two, top of the second page there, you say that you created six celebrity stories and you fed them to the newspapers over a two-week period. A. Yes. Q. Were there any more or is that it? A. Yeah, if you look at paragraph , I tried -- I think it was actually a little later. I was actually annoyed that my researcher had kind of had all the fun, so I thought I'd try one and we tried a story about Alan Sugar which wasn't run, but we subsequently discovered that he was very litigious, so they -- basically, tabloids don't like running stories about him that isn't PR for The Apprentice, but yeah, of the six that Jenn created and fed through through that two-week period, they were all run by at least one tabloid. Q. You tell us at the second of the paragraph s that your biggest story was in the Sun, revealing that Sarah Harding from Girls Aloud was secretly a fan of quantum physics. We saw that obviously in the film as well. You say it ran as a lead story in Gordon Smart's Bizarre column and there was a fabricated quote: "There's a lot more going on under that blonde barnet than Sarah's given credit for. She's a smart cookie and does read an awful lot." You say that this quote didn't come from Jenn, your researcher? A. No. Q. Showing that the Sun will add fictitious quotes into their articles as well as not running basic checks. Now, I've been asked to put to you that the Sun did in fact check the story with her PR and it was the PR who gave them that quote. Do you have anything to say? A. I find it a staggering coincidence and remarkably convenient, shall we say, for the Sun newspaper to come up with that, and it's the first I've heard about it and they've had two years to sort of make a mention of this. And certainly at the time, when the Guardian put this story to them, they didn't say that. In fact, they actually said, "Look, look, it's true, it's in our newspaper, and look, it's all over the Internet", without realising that actually it was us and them that had put it there, so yes, I find that a remarkable coincidence that they've managed to come up with this. Q. I hear some whispering. Just give me a moment. I don't think I need to ask you anything else about that. I'll ask you now about the Guy Ritchie story we saw on the film, the juggling cutlery in Scott's restaurant. A. Indeed. Q. Again, I have been asked to put to you that most of that story was in fact true. It was true that he'd been at Scott's; is that right to the best of your recollection? A. I mean, as to whether it's true or not, we read in the Sun that he was at Scott's so -- we don't know whether he was there or not, but yes, in our story we said that Guy Ritchie had been seen at Scott's by Jenn, who was pretending to be a waitress, yes. So that element we believed was true. Q. And it was true that he'd been drinking that evening? A. People do drink in restaurants, yes, I'm sure. Q. And it was also true that he had a black eye? A. He didn't actually have a black eye. He had a very slight mark on his cheek which I noticed in a photo, so we thought how -- we wanted to riff on that and thought: "Okay, where did he get it from?" Tabloid journalism is always about continuing the narrative, so I think the Sun had already reported that Guy Ritchie had been in the restaurant, so they were obviously looking for something to spin it along further. So we came up with the story that he had been juggling cutlery, which of course he hadn't. I don't know how you juggle cutlery. It's a ridiculous thing to do. That bit we invented, but I don't think he actually had a black eye; he just had a very small mark on his cheek in the photograph. Q. I have been asked to put to you that they did check the story with a source and the source confirmed that he'd been at Scott's, that he had been drinking and that he did have a black eye and therefore did do just what you would suggest they did, they did check their facts. A. I think they checked their own website, which is exactly the same thing we did, but the crucial -- people go out every day, people drink every day, people go to restaurants every day. People do not juggle cutlery and stab themselves every day. So they didn't check what I would say is the ridiculous, fantastical bit of the story; they just checked where he was, and he had been in a restaurant and he might have had a glass of wine. All that was known from their own website. But the absurd part of the story, they just wrote down and put in their paper without checking. Q. If we look at paragraph of your statement, you tell us what we can conclude from this evidence. You say: "We concluded from this evidence that chequebook journalism is structurally designed to produced exaggerations and distortions. Celebrities are usually fairly dull people, particularly footballers and actors, who rarely do anything particularly newsworthy. Conversely, the more unusual or funny the story, the more valuable it becomes. Those selling celebrity stories are obviously motivated by profit rather than accuracy, and will be naturally inclined to exaggerate and distort the truth in order to make more money from the newspaper paying them." Can I ask you this: these stories were all published, by and large, in the gossip sections of newspapers. Is there any problem, Mr Atkins, with the reporting of stories as gossip if stories aren't defamatory or malicious? A. They were run in the celebrity pages. I don't know if they're necessarily called the gossip pages. To my mind, from what I remember of those stories, they were presented to their readers as fact. There wasn't a "we hear that". They were presented as an absolute sort of direct piece of actuality. I suppose the question is would you -- if Gordon Smart put under his byline or his rather large photo in the Bizarre column "probably not true", then we probably wouldn't be so concerned about hypocrisy, but whenever these journalists go on record and talk about their craft, they talk about it as though it has like the same rigours of all the rest of their journalism. In fact, there was a quote from Dominic Mohan, who is the editor of the Sun to this Inquiry -- he stood up and made is speech and said: "The way showbiz journalists operate is like a political journalist in the lobby." So he seems to be making a direct comparison, to my mind, between the rigours of political reporting as he is with his celebrity reporting. So they're presenting these stories as fact. And also, celebrity stories dominate these newspapers. I think it's no longer the case that you have the gossip pages anymore. You buy a copy of the Sun or the Star -- celebrity is throughout, and this is what we were sort of looking at in the film, is how it has kind of spread to all different parts of the news media, taking these sort of lax standards of fact-checking with them. Q. I think I understand the point. Is your view then that newspapers should be prevented completely from printing gossip or rumour which they cannot check factually? A. Gossip is -- I have several pages of notes on gossip. Gossip and rumour can be very damaging, and it can ruin lives, especially if it's not true, and I think we rely on journalists to sift through gossip and rumour and tell us what they think is true. If you're spending pence or whatever on a newspaper, you're hoping that many so of that money has gone towards someone doing some basic checks. If you want wild, unsubstantiated rumour, we have Twitter, and I think journalism is all about verification. It's an absolute bedrock of what I think most people in the country think journalists do is to check and verify and see if things stand up. And if you put a rumour in a newspaper, you're giving it credibility just by printing it. Q. But isn't the great British public able to decide for itself what they think might be rumour and what is real news? A. But if we said, "Chris Atkins denied rumours that he's having an affair", straight away you've put the concept of me having an affair into the public, and a proportion, maybe lots of the public, will now think that I'm having an affair just because a newspaper has printed that. And it's a very kind of underhand way, I think, often of slipping stories out into the public that they can't stand up, and they can't stand up because they might not be true. So let's just call it at that rumour, some are saying. Well, how do you define rumour? Is it four people in the newsroom reckon it might be true? "Let's call a rumour, let's whack it in." That's someone's life ruined. And I find that sometimes rumour is used as a cover for getting, as I say, stories out there that don't have any factual backing. I think some of the reporting in the Chris Jefferies case, a lot of that was rumour and insinuation. That demolished a man's life. It's a smear campaign. So I think rumour, one has to be extraordinarily careful with it and I think newspapers should be very careful with using rumour, but often they're not. Q. One of the solutions that you suggest in your witness statement is that what they should have done in each case is to check with the respective celebrities PR at the very least, but then you go on complain later on in the film that PRs are guilty of essentially mass deception. So how do you match the two? A. I don't necessarily -- it doesn't necessarily have to be with the PR. It could be with an agent, and even though, yes, PRs are inherently unreliable, at least that's a check. At least a phone call has gone through and you would hope that the people that they're checking it with are acting in the best interests of the celebrities, maybe even call their lawyer, maybe even call them. But the fact that no checks were made, even, as I say, to a PR, it shows that these newsrooms are just -- as I said, we called them up, we gave them fantastical lies, and they wrote them down and put them in their newspaper the next day, without anyone calling up and asking anyone whether or not it might be true. So yes, I'd be the first person to say that PRs are sometimes unreliable as a source of truth, but in that instance they're probably better than nothing. What we got were nothing. Q. Some might say that the stories that you planted were harmless, didn't hurt anybody's feelings, just a bit of gossip, the public are able to tell the difference between a bit of gossip and some real news. No? Any thoughts on that? A. I think one of the problems that we have is how these news standards spread throughout the newspapers and I think they spread with the journalists who practice them. So you have -- when journalists start on tabloid newspapers -- and again Richard Peppiatt has helped confirm this. They often start to the celebrity desks. It's often one of the first jobs they have. If they thrive there, and if they thrive there by not checking facts, and in some cases even fabricated details -- the Daily Star added to our Amy Winehouse story that a friend of Amy's ran in and punched her in the head to put out the blaze, and that was just -- that didn't come from us and I don't think that was given by a PR. So they'll fabricate quotes, they won't check facts, they'll add their own details to it, and if they're successful on the celebrity desks in this regard, their behaviour isn't punished; it's rewarded. And quite often they get promoted to other parts of the newspaper where they have far more control and impact, and in the film we gave three examples: you know, Piers Morgan, very successful celebrity journalist, went on to run the Mirror and then had to leave his job rather abruptly because they didn't properly check their facts over some photos of British soldiers apparently abusing Iraqi prisoners, which of course was nonsense. Then you look at Andy Coulson. Well, he was a very successful gossip -- celebrity journalist and I don't need to tell anyone in this Inquiry where he ended up. And same with Dominic Mohan who is now running the Sun. So I think that people learn their journalistic craft on the celebrity desk and then, if they're successful, very quickly move on to other areas. Richard Peppiatt was telling me that someone would be writing -- at the Daily Star, one day they would be writing a sorry about Bubbles giving evidence at the Michael Jackson trial, and the next day they would be writing a story about global warming. And it's the same journalists with the same ethical values covering both. Q. Why do so many tabloid editors come from the showbiz desks? A. Celebrity stories are massively commercially successful. They are the single most successful stories in newspapers. They boost circulation, they increase clicks on websites. So if you are adept at handling showbiz stories, you will rise up the career ladder at a tabloid newspaper. Gordon Smart has just been apparently voted -- recently, about a year ago, after Starsuckers, was voted the number one celebrity journalist of the year, and second was Clemmie Moodie at the Mirror, and both of them ran our stories. So you can see that if they just stuck to printing what was rigorously factually true, it would be really dull news articles, so they want to add the spice and the sparkle and the extra fluff around the edges to make the stories more appealing. Those who stick to the facts aren't going to succeed. Q. Let me move on to churnalism. Again, I'll do this briefly because it's extensively covered in the clips that we've seen. We saw the extract about the chastity garter and you explained in the film, I think, that it was published on the Mail Online and in the Daily Star, that story. That's right, isn't it? A. Mm. Q. The Daily Mail wanted me to point out -- and I think this was confirmed by your clip, wasn't it -- that the story was pitched originally to the Daily Mail news desk, it was rejected, but then once you had fed it through to the news agency, they then picked it up and it was then that it was published online; is that right? A. Absolutely true. I make that point to show how important news agencies are in this whole machine. It's the same with PR. I don't think you can just say, "Oh, it's a newspaper, let's look at the newspaper." They have these other things sitting behind them and one much them is news agencies. There's quite a lot of local news agencies in Britain that basically feed stories into the national press, and that's what we found, this agency called Caters News Agency, which, as far as I can understand, is just a couple of people sitting in an office in Birmingham. After the Mail said no to this story, for whatever reason, we sent exactly the same story to Caters News Agency, and within minutes they'd put it on a newswire and sent it back down to the Mail, who then -- word for word, identical story -- then said, "Oh, it's on a news wire, it must be true", and then copied and pasted it onto their news site. This all happened extremely quickly, within hours. Q. That begs the question: did the news agency take any time to check its facts? A. Absolutely not, no. They said, "Great, let's run it", I think. I might even have the emails. Q. I've been asked to ask you whether you're aware that the agency spoke to the alleged husband and wife team who had come up with this invention of the chastity garter. Is that right? A. Absolutely not, no. It was a handful of words email. I can dig up the correspondence if you want, but it was like: "Great, we'll whack it on the wires." It was something like that. I think after the event, after they saw how successful the story was -- because it was the most-read article on the Daily Mail's website for quite some time -- I think the news agency, sniffing some money, came back to us and said, "Could we do an interview? Could we speak to the husband and wife as a follow-up article, maybe sell it for the women's magazines?" And we looked at this and thought while it might be quite good fun, it wasn't actually in the interests of what we were trying to prove with the hoax, so we said no. I think they're probably getting confused with that. But no, at the time we sent it to Caters, they copy and pasted it into the wire and sent it to London, all in a matter of hours, with no checks. Q. Are you saying, Mr Atkins, that newspapers should never use copy provided by PR? Isn't that unnecessarily pedantic in your view? A. I think if a news article is based, more than half the news article, on a press release, I think the public has a right to know that. Again, the public is trusting journalists to give them an objective look at what is true and what's not, and if they're just copying and pasting huge chunks from a press release in five minutes, that's -- they're failing in their job. You have advertorials in newspapers and you have a full page that is sort of promoting Coke or whatever, and because it's sort of advertising looking a bit like a news article, you have to put "advertorial" on the top. My understanding is that regulation is quite old, and I think the same thing should apply to PR. PR, press release, is just a very good way of circumventing that rule. So what you'll do is you'll get a newspaper article, you'll read it, and think, "This journalist really thinks that Tesco is an amazing supermarket", or whatever it is, but the public won't know that all of that story, all that copy, all those photos, have actually been provided by the supermarket. So I think per cent is a good arbitrary tipping point. When it goes over there, it's the public's right to know. It doesn't say you can't run the article. It just means you just have to be honest about its source. LORD JUSTICE LEVESON: Is it a question of labelling? In other words, for this stuff, you know: "The material provided by the manufacturer tells us that..." A. Yeah. LORD JUSTICE LEVESON: For the celebrity stuff, it is: "We've received an anonymous tip-off that ..." I'm not suggesting the words, but is it more than labelling? A. No, I think, as you said, the public are smart. I don't want to denigrate the public too much, but I read newspaper articles that I know are sourced from PR because I can see it, I spent so long looking at it. I still read the article because I'm actually interested in this product or this film or this service or this government press release or whatever. I'm still interested. It's just I can make a more accurate assessment of how much I take it on board, knowing its source, so I think absolutely with press releases, just say advertorial or churn or from Bell Pottinger or whatever it is, and then the public can make their own mind up. MS PATRY HOSKINS: All right. I'm going to turn on to the medical records sting, if I can. Let's start with the basis for it. It's paragraph onwards of your statement in case you want to find where we are. A. Yes. Q. You say at paragraph that what you wanted to do was to test the Sunday tabloids to see if their journalists were willing to break the law and the PCC code to obtain private information about celebrities that was not in the public interest. A. Mm. Q. Just to make it clear, you did not have any real confidential information to sell, did you? A. None whatsoever, no. It was all fictitious. Q. You explain that you would pose as an intermediary who was selling the details of celebrities' plastic surgery operations but was ignorant of the rules of modern tabloid reporting. You would claim that you were the ex-boyfriend of a nurse who worked in a plastic surgery clinic who had evidence of high profile celebrities having operations. You say: "Given the intrusive nature of the stories, the newspapers would be likely to need to obtain proof that the stories were true in order to print them. Any such proof would inherently involve a breach of the Data Protection Act, which prohibits the sale of medical records. Even harvesting information to research the stories would ostensibly involve a breach of the DPA." Did you take legal advice to that effect before you carried out -- A. Yes. Q. You go on to say: "The DPA does have a general opt out for journalists when the information is in the public interest ... so we deliberately created stories that, while of interest to tabloid readership, could never be classed as being in the public interest. The PCC code also makes it clear that health issues are extremely sensitive." And then you set out the relevant parts of the PCC code. Again, did you get advice on whether or not this sting or purchasing information that you were going to offer would be in breach of the PCC code? A. Yes. There was actually quotes and I came back to this before, but Paul Dacre, in his capacity of, at the time, the chair of the Editors' Code of Ethics on the PCC, went before Parliament and discussed -- Q. Paragraph . A. Yes, , -- in which this was discussed and he said -- Alan Keen, who I think was an MP: "Do you think the public is entitled to any privacy. You have explained one or two examples. Medical records." Mr Dacre: "Absolute privacy guaranteed. It's part of the PCC code. No question." Alan Keen: "Medical records?" Mr Dacre: "Absolutely." Q. Lets turn to what you did. At paragraph you explain this succinctly. To initiate the investigation, March , you called the news desks of The Sunday Express, The News of the World, The Sunday Mirror and The People. We've obviously seen extracts of the telephone calls and of the meetings with various journalists in the film, so we can probably take this quite briefly. I just need to ask you a few questions and I have been asked to slow down again, now twice. Let's start with the Sunday Express if we can. This is important that we do so. In a nutshell, what did the Sunday Express say when you indicated that you might have confidential medical records for sale? A. They categorically said that this was not something they could in any way be involved in, and they didn't even want to hear what the details were, which I thought was quite comforting, actually, to have the Sunday Express say this. But I will just read a quick line from the phone call, because it sums it all up: "From our point of view, there would be three really difficult areas: a privacy side of it -- and there's the privacy side with the fact that it's a health issue, which makes it even more private from her point of view. They would also be regarded as a sort of breach of confidentiality as well, a legal minefield." And pretty much put the phone down. Q. Good. Let's turn to The People then, if we can. You spoke to a journalist called Sarah Jellema at The People; is that right? A. First of all we spoke to a news editor, Tom Carling, who I understand is still news editor of The People, and he listened to our story first. This is actually in an annex which I supplied to the Inquiry. We explained to him -- I explained to him first what the situation was, and he weighed this up and then put us through to Sarah. Q. Do you want to look at that extract, that transcript of the telephone call? A. Not particularly. I mean, it's just we told him what we were about and he said, "Great", and put us through to the journalist. Q. You then spoke with Ms Jellema. Can I ask you to turn, please, to tab in the bundle. For the technician, it's . If we look at the top half of the page first, you'll see the conversation that you had with Mr Carling. A. Mm-hm. Q. And you see then, about three-quarters of the way down the page, a section that starts: "Well, we're definitely interested in these sort of stories. Obviously, we've got to be very careful with -- you know, there's a new wave of privacy laws, but you know, lots of people in the public eye are quite open about the work that they've done, you know, stuff we can elaborate on, and it does entirely depend on who the individuals are." Anything wrong with that? A. I think what he's opening the door to, as I was going to come to in a second, is this concept of harvesting. So what he's saying, I think, is to sort of give himself some kind of cover, to say, "Look, there are a new wave of privacy laws" -- well, we all know that -- "and we do need to be careful." Absolutely fine. But he then passes me on to a colleague, who is then instructed to come and meet me and to harvest as much private medical information as they possibly can, so I do -- it's a nice little touch to say, "Oh, got to be careful", but then proceed to action an investigation by his newspaper that, as far as we're concerned, is definitely breaking the rules. Q. You were then passed on to Sarah Jellema on the telephone. I'm going to skip to the fourth page of that exhibit, halfway down the page, where she says: "Yeah, definitely. It sounds like it would be right up our street, to be honest with you, so whereabouts do you live?" And then you arrange to meet her. A. Yeah. Q. Out of fairness to Ms Jellema, is there anything else in that extract from the telephone conversation that you'd like to draw the Inquiry's attention to? A. Not particularly. I think the telephone is call is in its entirety, so it's all there. She's working under the supervision of her news desk, it seems to me, so I think that in fairness to her, she was not a rogue reporter in this instance. Q. You then arrange to meet up with her and you do on March . The transcript is at tab in its entirety, but it's summarised at paragraph onwards of your statement. A. Mm-hm. Q. It's probably easier if we go through the summary. A. Mm-hm. Q. I'm sure if anyone wants me to add anything, we can come back to it. Could I ask you to draw out for the Inquiry the particular passages that you think are relevant to this issue? A. Sure. Well, her opening remarks: "Obviously, it's very legally dodgy." Which I think is what the Guardian used in its headline when it broke the story. "I was batting around with my news editor who you spoke to before, Tom ..." Which indicates he's sort of across this story. "... sort of ideas of how you might do it, ideas of maybe a spread of silhouettes or people hinting who might have done it." So that, to me, would indicate that they would take the information and do a kind of "have they, haven't they?" silhouetted story to shield where the information had come from. So even though they would be in possession of sort of illicit data-protected material, they wouldn't be letting the readership know that's what the source was. And then quite early on: "Obviously as well, the first thing we want to know is what back-up we have. There will be something written or whatever, just something for the file. I'm sure they'll want something, I'm not sure what. Some kind of documentary proof, yes." Paragraph I found interesting. It's not specifically relevant to the breach of the DPA and so forth, but I thought it was quite interesting about how they operate. After I gave them the -- I said a member of Girls Aloud had had a boob job, but I wouldn't tell her which one, so she was obviously desperate to know which one. She said: "Even if it wasn't Cheryl [Cheryl being the most famous one] you could do a teaser on the front and people wouldn't know until they got inside. So you wouldn't even put a name on the front. You'd go 'Girls Aloud'. But if it wasn't, they'd do a teaser and everyone would be like: 'Oh, is it Cheryl?'" Which, to me, I think, indicated that they were essentially looking at tricking the readership, so even if it turned out -- Q. By doing what? A. By hinting that it's Cheryl, by knowing the readership will think that it's Cheryl and they buy the paper from the front page. They buy the paper and they get home and it's not Cheryl, by which time they've already spent their money. So just a little bit further on, paragraph : "I spoke to them [presumably the news desk] before I came down. They wanted names." This, I think, comes to the heart of this, and also what we were talking about when we come to the News of the World journalists. This idea of collating the information. So even without them printing it, by taking the information wholesale from us and taking it back to their news desk where, presumably, they store it and keep it on file, they are breaching the Data Protection Act, just by me verbally imparting the information, and those breaches do not have any public interest and from the data protection point of view, they're trying to become the data controller. They're trying to essentially have a pipeline from our clinic to their news desk, so anyone coming into that clinic with any kind of surgery, they want that information, and they later decide whether or not -- which completely goes against the point of the Data Protection Act. Q. And the comments on the PCC? A. I think her comments on the PCC speak for themselves, really. That's why we intercut them in the way we did within the film. I think we've just got honesty, really, about how journalists view the Press Complaints Commission. Actually, right down at the bottom here, this idea that: "They will tend to take more risks if they think a PCC will be involved." So obviously they have these two types of potential restrictions, and one of them is a libel case or privacy in the courts, and another one is the PCC. If they think it's just the PCC, they'll push it further. So yes, I think her comments on the PCC speak for themselves. Q. Have you seen Ms Jellema's statement to the Inquiry? A. Very briefly. You gave it to me just before I came in, so I haven't actually -- Q. She says any views expressed about the PCC were solely her own views and not those of the newspaper for which she was working at the time and may not be representative of every journalist's views. What do you say to that? A. It sounds like what journalists put in their Twitter bios, doesn't it? "All views are mine and not that of my newspaper". As I say, it's just a rare glimpse of honesty, of how journalists view their regulator. I'm not saying every single journalist believes that, but as I say, where we were unable to get anyone to go on record, then these comments, I think, are still quite valuable. Q. You say at paragraph that the following week Ms Jellema called you, left a voicemail? A. Yeah. Q. "The message said that they were very keen to do the stories, she had consulted with her news desk and legal team and they had asked her to ask us to provide a copy of the appointments book of the surgery or similar to prove that celebrities had been in and what they were for." Again, you say you'd seen Ms Jellema's statement to the Inquiry. A. Yeah -- you'll -- I don't -- Q. She says she returned to the office, reported back to the news desk and was told that The People would not pursue this any further. She then called you and left a voicemail message to that effect. What's your recollection of what happened? A. As is in my witness statement, she called more than once and she was very keen to run the story. I actually felt a bit sorry for her because obviously I'd just basically ceased contact and she was obviously under pressure to -- it seemed, to be under pressure to make all this happen. And, yes, as I say, we made a specific note at the time, and it was discussed with my producers, that one of the messages said: "Can you get us a copy of the appointments book or similar?" And I think, therefore, that takes this beyond the excuse that some people have maybe presented to this investigation, which is: you never knew that they were going to run the stories so they could have just been mouthing off. I think this indicates they were very keen. Again, it's not Sarah acting as a rogue agent. It's with the authorisation of her news desk and legal team. Q. Have you kept a copy of any of these voicemail messages? A. No, because it was a voicemail phone. It was a 'pay as you go', so we didn't. Q. Can we turn very briefly to the Sunday Mirror and the meeting with Nick Owens. Again, this is summarised in your witness statement, paragraph onwards, and the reason why I ask you about this is you say later on that you believe Nick Owens' behaviour to be in the most blatantly in breach of the rules. So as we're going through, perhaps you could tell us why you take that view. A. Certainly. I think this -- they all sort of cross the line to different degrees, and I'd be -- I think it's important to make that point, and I think with Owens, as he says right at the start, he has the eye and the ear of the news editor and the editor as well. I think he seemed to be a much more senior journalist in the organisation than maybe Sarah was in hers. Paragraph , I found this very interesting. When we were talking about the confidentiality issue and the source potentially losing her job for giving me information, Nick Owens said: "I understand that. I cover a lot of health stories, and I work with a lot of health professionals ... I work with people in that area as well." Now, we come to paragraph , and this is where -- we'll come to the public interest in a minute, but this, I think, sets that up in terms of how tabloid journalists view the subject of public interest, because they're talking about potentially reporting a story that's in the public interest and saying: "There isn't a public interest in reporting that somebody has had a gastric band operation unless they are a massively big name, then you might make a decision." You know, he comes on to say: "It's always up to the editor. Put it in front of the editor and she will make the decision." He steers the conversation onto documentation, paragraph : "Is there a document somewhere, piece of paper? Is there an email that would prove that she had it?" Then paragraph -- I didn't notice -- sorry, actually paragraph , there is quite a curious phrase. I'd like to note what he has to say about this. He says: "It's not like the NHS, obviously, where you phone up and they tell you about an operation that has happened on such a such a date." I don't know whether this is something they would do at the NHS, but I noted that earlier. So we're discussing about the process, about how he might have to go to his news desk and they might then come back and ask for documentation and he suggests a way around this, so: "Have you got anything available now? Do it in one." So he's essentially asking us to go away and start collating information right now and get as much as possible. Coming on to paragraph , we're talking about Rhys Ifans, who -- we had, again, fabricated a story that he had had a tummy tuck: "I think Rhys Ifans is funny because -- you know, Rhys Ifans wanting a tummy tick is a very funny story but then again, is it justified in the public interest? That's the problem. We could get away with Gemma [ie Gemma Arterton]. That's massive, good story." But then he revisits Rhys Ifans, after thinking about it: "Having a tummy tuck to get rid of Rhys Ifans' beer belly, isn't it -- it's a fucking good story. Of all of them, you could do Rhys. You could probably do Rhys Sunday. Rhys you could probably get away with because it's so funny." Then just the last bit of paragraph : "The thing to say to your friend is what can you get, because the more the better, really." This is in the context of medical documentation. "If she can, get a document on everything." That's why I think his behaviour was the worst. Q. You then go on to say that he went on to write an article about Chris Jefferies which was defamatory. You don't enclose that article. What I've done is I have printed out one of the exhibits to Mr Jefferies' witness statement. It doesn't need to -- in fact, it probably shouldn't be shown on the screen, but for the other core participants in the room, it's document , and I've caused it to be handed out this afternoon. Is that the article you were referring to? A. Yeah. I mean, I think -- I don't know what we expected, actually, when we went to this film, when the news of this investigation was made public, but there was no comment from the Mirror Group about the behaviour of the journalists at The People or the Sunday Mirror, and the PCC did nothing apart from occasionally write things about the film, and the journalist, Nick Owens, stayed in his job and he's there, he still works for them, as I speak. And I just thought because I was making a film about Chris Jefferies and I was researching articles on that and it struck me that Nick Owens wrote an article about Chris Jefferies, about him being obsessed by poetry and how this basically indicated that he might be a murderer, and it just struck me that maybe if the Sunday Mirror had done their job and disciplined him or if the PCC had investigated and he had lost his job, basically, for trying to buy medical records, then maybe this article wouldn't have been written, and this article was subsequently found to be very libellous and defamatory and the Sunday Mirror had to pay damages. So I think it was just a general point that if they'd disciplined him and moved him on, then maybe this article wouldn't have been written. But as I say, no one really did anything as a result of the film. Q. Can I touch on the meeting that you had with News of the World? A. Yes. Q. I think we can agree that Ms Numar(?) was much more cautious than the others? A. Definitely. Q. Can we park her on that basis. A. Please do. Sorry, to return to the point I made about still breaking the rules because she was trying to set News of the World up as a data controller. So she was still asking me to impart verbal information to her that had no public interest so they could store it, and this is obviously in breach of the Data Protection Act. But I completely agree; she was much more cautious than the other two. Q. Can we agree, though, a number of things about this medical records sting. All of the newspapers you spoke to did recognise that there were difficult confidentiality issues involved? A. Yeah. The confidentiality -- actually, I had a look for that word. Nick Owens talked about confidentiality issues, but mainly as something to be overcome, to be sidestepped and basically something that needed to be overcome, and he didn't think there would be a problem overcoming them, and actually confidentiality issues were mainly talked about -- in fact, I think wholly talked about in the context of protecting source, which to be completely fair to them, they did all say that we would go to extreme lengths to protect the source. However, I also find that quite self-serving, because they'd also want to protect the fact that it came from a breach of the DPA, which is why they were talking about hinting that the story had come from somewhere else. Q. Can we also agree that none of the newspapers committed to publishing any of the information based on medical records? A. No, we didn't want to go anywhere sort of near there. We couldn't jeopardise them actually printing something, because this isn't about Sarah Harding being secretly into quantum physics. This is obviously a story about plastic surgery. So we went, I think, as far as ethically we could and should have done to prove that had the stories been true and had we had documentation, they would have printed them, and I think that's fair to say in the case of The People and the Sunday Mirror. But no, of course they didn't actually do that and that would have been grossly irresponsible for us to have even risked that. Q. I'm going to come on to the public interest in just a moment, but let me touch on one thing. A number of journalists seem to think it might be okay to publish the story if the story was funny. A. Mm. Q. Does that make it better, in your view? A. No. Whether a story is funny or not is -- I don't think should have any bearing -- I'm not a lawyer, but I don't think it has any bearing in law of whether it's a defence -- LORD JUSTICE LEVESON: I don't think it's defence. That wasn't Ms Patry Hoskins' -- A. Sorry. LORD JUSTICE LEVESON: I don't think it's a question of a defence. It's a question of whether you think it makes it different. A. No, certainly not in terms of something about someone's private life. MS PATRY HOSKINS: So public interest. In the sting, the journalists you spoke to did state that records could be used to publish a story if it was in the public interest. A number of them do actually say that in terms. But in your view, would any of the stories that you were describing -- so Gemma Arterton's gastric band, one of Girls Aloud having a boob job -- would any of those be in the public interest? A. No. No. We sort of crafted them as -- I say "crafted" -- we created them as such, so we wanted to pick things that definitely could not qualify in the public interest. I find it hard to see how any story of a similar nature could be classed as in the public interest. Q. A number of them refer to the Fern Britton example, if I can call it that. They said she'd had gastric band surgery, but then when she was asked, "How did you lose the weight?", she seemed to suggest that she'd been eating healthily and exercising and the argument was then: "Well, we're entitled to publish this story because she has lied to the public about how she lost the weight." Do you consider the publication of the fact of her surgery was in the public interest? A. I don't know what the source of the Fern Britton story was. In fact, no one knows -- Q. Regardless of source. A. But I think the source is actually important because if, for example, it was her friend or her PA who tipped off the News of the World, and they ran it based on that, that wouldn't involve a breach of the Data Protection Act. That's just someone giving some evidence about something that happens to be true. I think maybe in that circumstance, you could say that has more merit than other stories about being in the public interest, so it has a weight to it. I'm not -- you know, it never went to court, it never went to the PCC, so we'll never know. But in that instance, you could say yes, it had more weight. But crucially that doesn't imply that that covers a breach of the DPA. What you're talking about here is a doctor or a nurse selling to a newspaper what happens within the confines of a medical room, and that should be sacred. As I say, I fail to see what public interest there can be for anything -- even if they have made some comments about eating Ryvita, I can't see how encouraging a medical professional to break that could be seen in the public interest in this context. Q. I'm going to ask you some brief final questions. I have two more topics to cover with you. First of all is the release of the film. You tell us at paragraph onwards about the release of Starsuckers and the problems you had? A. Yes. Q. Do you want to summarise for us very briefly, please, the problems that you had distributing the film and having it seen, et cetera? A. Well, no one wanted to help us, I think, but that's probably because the very people we need to help -- you need to help you when you release a film were all criticised within the film. So people weren't -- all media organisations weren't going to help a movie that specifically criticised them, and I did like to be fair by criticising everyone, so we didn't have very many friends. The Film Council was supposed to be giving us a grant -- it's only ,, but to help with the releasing costs and just before the film was released, because we were experiencing legal difficulties, they actually pulled out of that, just to give an example of how everyone did run for cover. But on the other hand, some people stepped up and really tried to help us. So the London Film Festival put it out in their festival. Independent cinemas said, "Look, we don't even care if the film is going to be sued. We're going to put it in the cinema because it's really important." And the Guardian obviously gave us a big push and then Channel came in and eventually bought the TV rights. So it wasn't like everyone ran for cover but the majority of the people within the media and the film business just didn't want to have anything to do with us at all, because -- I think they emotionally didn't like the idea that we were sort of criticising our own industry, and also there were these sort of legal threats that sort of exploded in a very sort of short period of time. Q. I'll come back to the legal threats, but let me just take you to paragraph . You say that on October , the Guardian ran an article on their front page that you'd been selling fake celebrity stories to the tabloids and then the following day they ran the results of your medical records investigation. You say that the BBC covered this extensively. Did any other newspaper mention the fake stories or the medical records sting? A. No, no. There was absolutely no pick-up by the British press whatsoever. Q. Come on then to tell us, please, about the legal problems. At onwards you tell us that you had a bit of a battle with the News of the World. Tell us about that as briefly as you can. A. The News of the World obviously got quite upset that we'd invaded their privacy and they contacted our lawyers. The in-house legal team of the News of the World contacted our lawyers. Q. Mr Crone? A. It wasn't Mr Crone, actually. It was -- I can find out who it was. It was someone who worked just beneath him. It was their in-house legal team, certainly someone working under Mr Crone, basically saying that they felt that their journalists had been libelled and they wanted to basically prevent us releasing that section of the film, even though Tom Crone has said publicly before he wouldn't use libel laws against other journalists. Q. What was the upshot of this? Did they take you to court? A. No, sorry. The upshot was -- there was three legal teams in one week who all tried unsuccessfully to order us to edit the journalists and the News of the World out of the film, and we basically said, "We'll see you in court", and they went away. Q. You then tell us that the film was released, paragraph , and a number of newspapers printed reviews. Did any of the tabloids print reviews of the film? A. The Express gave us four STARS, which I thought was very nice of them. A nice bit of -- I actually got a nice letter from them as well, thanking us for the first decent bit of publicity they'd had in a long time. But no. I missed The Sun off here. The Sun didn't print a review. So all -- I know all these critics came to see the film because you have a press release that says who came to see it. So they all came to see the film, but none of them wrote reviews. So none of the papers that were criticised printed reviews, no. Q. You say at paragraph that the reaction of the PCC was mixed. What does that mean? A. It's film parlance. When you say reviews are mixed, it generally means "not good". Yes. Alison Hastings spoke to some journalism students at City University and was apparently very disparaging about the film. Stephen Abell from the PCC wrote a letter to the -- Dublin Times, was it? Belfast Telegraph, basically disagreeing with what I was saying and disagreeing with the general thrust of our arguments. Q. Did you ever ask the PCC to investigate any of the fake stories or the medical records sting? A. Did I personally ask them to investigate? No, we kind of thought it was something they might have the initiative to do themselves. Q. Did they investigate it? A. No, not to the best of my knowledge or the knowledge of anyone I've spoken to. We just generally assumed that they would start looking, but they didn't. Q. You then go on at paragraph to tell us that the True Stories strand on Moreacquired the British TV rights for the film and the film had to go through an Ofcom compliance check? A. Yes. Q. Which took several months. You say the film was passed uncut, bar a handful of minor alterations, and they were not relevant to the parts -- A. Elsewhere in the film, yes. Q. Absolutely. Can I ask you this: you said right at the outset that you'd always intended for the film to be shown on television so you'd always had the Ofcom regulations in mind. But you go on to say at paragraph of the statement that although the PCC system is, in your view, is ineffective, the Inquiry shouldn't use Ofcom as a regulator either. Can you tell us perhaps a little about which specific aspects of Ofcom you believe should be avoided? A. Ofcom's a very sort of tough regulator for television, and I think in some circumstances that's probably quite necessary, but I think when it comes to journalism and current affairs, it's far too onerous. This isn't just my opinion; this is widely held opinion. The penalties exacted on broadcasters are such that I think some broadcasters -- and I think sadly in particular the BBC -- almost in fear of an Ofcom complaint will sort of water down their journalism and stories. And we're not talking about celebrity tittle-tattle; we're talking about really important things in the public interest that they will water down, and in some cases not even run cases in fear of what happens when there's an Ofcom complaint. Rather than accepting that every year, someone's going to get something wrong and that's just part of life if you're making this huge output, it's generally felt that Ofcom penalties are so harsh that they have to be avoided at all costs, which means you cannot possibly risk having an Ofcom complaint. And I think that is having a chilling effect on television journalism. What is happening now is that technology is completely overtaking this regulatory framework. So you have Ofcom, which looks after television, and you have the PCC which does or doesn't look after newspapers, but newspapers are doing internet TV journalism. There was a story that broke this morning about Bell Pottinger being secretly filmed, which is on the Independent, and they have clips on their news site of some of the undercover meetings. I've done short films for the Guardian which sit outside of Ofcom, but if people are sitting at home and they have the internet wired up on their television, then they can watch the two side by side. So it means that newspapers are able to do TV-esque current affairs programme completely bypassing Ofcom and what you're having is stories that aren't being shown on TV going to newspapers because there's a sort of a less harsh framework. Then you also have the Internet, which is completely unregulated. LORD JUSTICE LEVESON: So you have the three regimes: Ofcom, the PCC and nothing. A. Exactly, and for the viewer at home, they're not aware of this. They're just watching stuff and they're completely unaware of what is regulated by who. And what you, in my view, need to do is just level it and have parity, either of two regulators or just have one regulator. But as more and more newspapers are doing video, this problem isn't going to go away, and you see lots of documentary makers in some cases abandoning television and going and taking their stories to the Internet and to newspapers because they can tell a better story. And I think, you know, the example of today's story in the Independent totally stacks that up. It's a fantastic story and it's video and it's online. MS PATRY HOSKINS: Is there anything else that you'd like to say about perhaps reform of the PCC or anything that you'd like to add to what you've just said? A. I think it's perfectly simple to me and lots of people how the PCC needs to be reformed. LORD JUSTICE LEVESON: Oh? A. To my mind, the newspapers understand one thing, which is money, and I think the undercover meetings that we've shown show that the PCC adjudications are as good as meaningless, really, in terms of correcting behaviour. So if you had a body that could exact penalties and fines, then it would be viewed in the same way that libel fines are, and it's interesting if you look at some of the things that we tried to put out, like Alan Sugar. They said -- we found out they couldn't print anything nasty about Alan Sugar because he's litigious, so therefore the newspapers thought: "Well, we won't touch him." But what would happen if everyone was litigious, or what would happen if this new body could fine newspapers in the way that a litigious celebrity can hire Schillings or whoever to sue? Then the newspapers would self-correct. They would say, "I'm not going to run this story about this person because if it turns out not to be true, I might get fined by the PCC, and if I get fined by the PCC, I might lose my job." I think the other thing crucially is the lack of credibility that the PCC has because of the number of editors on the PCC itself, and I think that ruins its credibility if people are complaining to the very people who have wronged them. There's an argument I remember approximate being put forward that basically says that members of the public can't possibly understand how newspapers work. I think that's nonsense. I think it's very easy to understand how newspapers work. I think that's as self-serving argument that's put forward to keep newspaper editors in control of the PCC. So I think you need to sever that link, be independent of the press and definitely independent of government and be able to exact fines. The code is good. I wouldn't alter the code. It's just who sort of -- who's responsible for enforcing it that needs to change. MS PATRY HOSKINS: Mr Atkins, is there anything you'd like to add? A. Just one thing on the public interest, sorry. Q. Of course. A. I think the public interest -- it's just the question you asked about how you define the public interest. In my view, it isn't difficult. If you look at when public interest justifies invasions of privacy or breach of the Data Protection Act -- if you look at the MP's expenses, that was a human breach of the Data Protection Act but there was no question of the authorities prosecuting because it was so overwhelmingly in the public interest. If you look at some of the undercover filming done by Dispatches on lobbying a year ago or the one today, no one is questioning whether or not this is in the public interest. I think that as a term the public interest has been sadly taken away from where it should be, which is that sphere, and then it's used by tabloid newspapers sort of after the fact as a kind of stick-on to try to justify something that's just invading someone's private life, and I think as a term, it's been just taken out of its correct context, and as even you saw with Max Mosley, they invented details to turn it into the public interest and I think -- I think we almost need a new term for it, like the prurient interest or something. That's the tabloids' legal trick, and this is the public interest over here that justifies proper investigative journalism going on. MS PATRY HOSKINS: Thank you very much. Unless you have anything else to say, thank you very much for answering my questions. LORD JUSTICE LEVESON: Thank you very much. Thank you for the work that you've obviously put into the submission you've put in. MR CAPLAN: Can I just say that on behalf of a third party, Caters News Wire -- the news agency, in fact, which put out this story regarding the chastity garter that ended up eventually, having being refused by the Daily Mail and the Mail Online -- I think it's just fair to say in relation to that third party that we do understand that they spoke to Mr Atkins -- or Mr Atkins spoke to them, pretending, of course, to be a PR company. Caters News Wire then spoke to the couple concerned, who Mr Atkins had put them in touch with. They did make checks with the couple before publishing it and they did look at the website, of course, which has been fabricated, and without that deception of the couple and the website, the news wire would not have published the story. I think it's fair to say that. MS PATRY HOSKINS: Sir, I think I put that question to Mr Atkins and he said that conversation never took place. A. It never took place. LORD JUSTICE LEVESON: Yes, Mr Patry Hoskins did ask about it. Thank you. MS PATRY HOSKINS: Sir, that concludes the evidence for this afternoon and I understand that we -- I'm losing track of days. LORD JUSTICE LEVESON: No, no, we have something else to do. Yes, Mr Brown? MR BROWN: I indicated to Ms Patry Hoskins that I would be asking you to order that Mr Atkins provides the entirety of the tapes and the covered film footage. LORD JUSTICE LEVESON: But why? MR BROWN: Because it's necessary to see the whole of the conversations in context. LORD JUSTICE LEVESON: Why? MR BROWN: In order to see in what circumstances a story might have been published and, if published, could have been justified. LORD JUSTICE LEVESON: Well -- MR BROWN: Can I develop the submission? LORD JUSTICE LEVESON: Please, develop it. MR BROWN: First of all, let me indicate the material that we are interested in. LORD JUSTICE LEVESON: Have proceedings been commenced for libel? MR BROWN: With respect, I'm not sure that that has anything to do with it. LORD JUSTICE LEVESON: But that's the way that you would get discovery of the entirety of the material, isn't it? MR BROWN: We suggest, with respect, that it's fairness to the paper and to its journalists, who have been criticised in trenchant terms by Mr Atkins for breaching not merely the PCC code but also the Data Protection Act, that one looks to see from the material in the tapes and the entirety of the material whether there was a basis for the newspaper investigating the matter in order to see whether the material could be justified, either because it was in the public domain -- it had been put there in part by the celebrity; a point that Mr Carling raises -- or in the public interest in the sense that it was necessary in order to correct a public figure who was misleading the public, and the example obviously has been given of Britton, and one sees how that reasoning can be traced back to the House of Lords' decision in the Naomi Campbell case. What we know is first of all that there are audio tapes of the conversations on March. They are said to have been transcribed in toto, but we've not had the opportunity to check the accuracy of the transcripts. More significantly, there is the video footage of the meetings on March between Mr Atkins and first Mr Owens and then Ms Jellema. We learnt this afternoon that, so far as that is concerned, only half -- only half of the material had been transcribed. And finally, there is the issue of any notes of voicemails that were left by any journalist, and in particular by Ms Jellema for Mr Atkins, because it was clear from Ms Patry Hoskins' questioning and the answers to those questions that there is a dispute, an important dispute, as to whether, as Ms Jellema says, the news desk told her that they were going to drop it and she left a note on the voicemail of Mr Atkins, or whether, as he said, the messages on his voicemails were enthusiastic and wanting to pursue this story. So there's an important dispute there -- LORD JUSTICE LEVESON: But I don't intend to resolve it, Mr Brown. MR BROWN: Well, I understand that the Inquiry's position is that there will be no specific findings in this section of the Inquiry, but on the other hand, an afternoon has been devoted to considering all of Mr Atkins' many complaints against the press in relation to my clients, what he says are blatant illegalities, and the issue -- it's not so much whether or not the Inquiry is going to make a finding, but what in those circumstances is fair, and that's what I don't need to remind you -- LORD JUSTICE LEVESON: I am very conscious of wanting to be fair, Mr Brown, and if your clients and the journalists want to submit evidence, then of course, to be fair, it shall be deployed, but I'm not getting into a discovery exercise. MR BROWN: Can I just see what I have to say about discovery? The problem is that these conversations took place now over two and a half years ago, back in March of , so the difficulty that we have -- and Ms Jellema is no longer in our employ, Mr Owens is, but the difficulty is the best effort as to what they said would be the full tapes. It's not surprising that they can't recall precisely what was said, and it would be of benefit, you may think, to this Inquiry, to know from the available material all they said in order to gauge what precisely was the position in relation to possible defences, and both Section and Section of the DBA, in slightly different wording, provide for public interest defences, and there is no, as Mr Atkins is suggesting -- and there is no absolute sanctity attaching to medical treatment or hospital treatment. One sees that from the Naomi Campbell case itself, where she was seeking clinical treatment to cure her addiction. If I can just list why I say that fairness necessitates the full examination of any record that he may have of anything said and left on his voicemail, but also, and just as importantly, the entirety of the covered film footage, firstly it's the context, as I've said, which may well indicate that the approach that was being adopted was consistent with the PCC code rather than flouting it -- LORD JUSTICE LEVESON: I find it quite difficult to see how that might be, out of what we've seen. MR BROWN: That is the point. What have we seen? LORD JUSTICE LEVESON: We've seen a distinct chunk. Mr Brown, if I go down this route, if I go down this route, then in relation to each fact -- and we over the last few weeks have heard many, many facts, many allegations, great issues raised by a number of the journals, media representatives who are here -- if I was to do that, then it would be quite impossible for me not to do it in every single case, and I would be here for a decade. MR BROWN: Well, I'm not suggesting that it would be necessary, still less desirable, an exercise of discretion in every single case, but what I am suggesting is that it wouldn't be right and would offend basic fairness if you were to take the position that it would never be done. And here, where allegations of illegality have been made against my clients and where, if the full covered film footage is examined, there could well be a basis, as I submit there is, for submitting that there was no breach of the code, not likely to be a breach of the code, and no illegality, my contention is that it ought to be possible to look at this material and it will speed the evidence that will ultimately be given by the journalist and their editors. LORD JUSTICE LEVESON: I'm not so sure about that because whereas I'm perfectly happy to receive the evidence, and of course the right of response, if it's necessary, will be considered, I am focused very much on a much, much wider question. The fact is that, as I understand it, this film was screened in -- MR BROWN: October . LORD JUSTICE LEVESON: -- October , thank you, in other words, within months of the events. I have absolutely no doubt that your clients were on top of the allegations. Doubtless they have responded, and I'd look at a response, but the problem about remembering now is not a new problem. This is something that they've been actually on top of for some time. MR BROWN: Can I just direct your attention out of the question of relevance? It would be very different if one of the Inquiry team had looked at the other half of the covered film footage and -- Mr Jay or Ms Patry Hoskins were to say there is nothing relevant there to the issue of a possible defence. But as I understand it, the arbiter of relevance is Mr Atkins himself and it might be said that in that respect, given the strength of his feelings towards the tabloid press, he's somewhat parti pris. The other point that I would make is this: he appears to believe that there is some form of journalistic privilege in law which attaches to unedited material. He says as much in paragraph of his witness statement. He's repeated it again today. If material is being held back on that basis, there is, in my submission, no footing in law on which that can properly be done. LORD JUSTICE LEVESON: I understand, but that's not the reason that I would say no. What you raise is the interesting question. First of all, I am absolutely opposed to a satellite investigation. I will consider, and I am prepared to consider, whether to ask Mr Atkins to allow a member of the Inquiry team to see or to read whatever else is there. I'd have to discuss that and think about it, but I am prepared to think about that, simply in the spirit of seeking to deal with your concern. But I'm not going to go down the route of disclosure between witnesses and core participants. I'm just not going to do it. MR BROWN: Well, you've made that very clear. So far as any safeguard is concerned, that is some consolation if one of the counsel on the Inquiry team looks at it, and in the light of what I've said about relevance to any possible defences -- LORD JUSTICE LEVESON: I understand. I understand. I will give that immediate thought. MS PATRY HOSKINS: Sir, may I clarify one matter? LORD JUSTICE LEVESON: Yes. MS PATRY HOSKINS: I just want to make it absolutely clear, on November this we're we wrote to the Mirror Group enclosing a draft version of Mr Atkins' witness statement, making it clear that they were being given a full opportunity to respond to the allegations that were made. We made it clear when serving the notices concerned that you would not be deciding any specific issues. It wasn't an issue of Mr Atkins is right or the journalist is right. The notices contained the most general questions along the lines of, well, "If what is said by the journalist is accurate, what would be the view of your newspaper group?" et cetera, et cetera. There's simply no need, in my submission, for Mr Brown or his client to see the underlying material in those circumstances. LORD JUSTICE LEVESON: I understand the point. MS PATRY HOSKINS: But I'm happy to go to Mr Atkins' studio and watch hours of footage, if that would assist. I don't think it's necessary in order to comply with the notices. LORD JUSTICE LEVESON: I'll contemplate that. I don't anticipate it would be hours, because it's a specific video, but I would need to think about it and I would need to take Mr Atkins' views, which I don't intend to do in public at this moment. Thank you. MR BROWN: Could I just add that we only got his witness statement last week on November. LORD JUSTICE LEVESON: I'm sorry about that, Mr Brown. You'll appreciate that -- well, I will investigate as to when you got it. I'll look at that question. MR BROWN: You'll see that's -- LORD JUSTICE LEVESON: I think you've had access to the Lextranet website. MR BROWN: Yes, but I -- there wasn't. Herbert Smith tell me it wasn't there until November. LORD JUSTICE LEVESON: That's interesting. MR BROWN: We didn't have the full transcripts which are annexed to the statement. The statement itself is dated by Mr Atkins when he signed it, November, so it wouldn't have been possible to serve it on us before then. LORD JUSTICE LEVESON: There was a draft version, Ms Patry Hoskins said. MR BROWN: She did say that. As far as I know, we never saw it. LORD JUSTICE LEVESON: I'll look just for the sake of clarity. MR BROWN: That's very kind. Thank you. LORD JUSTICE LEVESON: Thank you very much. Could I just raise a very different question for reasons which don't need to be elucidated? I am quite keen to understand whether I've correctly understood the position of the core participants who do represent newspapers today. Mr Caplan, can I start with you? It's not a difficult question, I think, but I've always understood that you came for Associated Newspapers representing the editor and the editorial team, such journalists as you felt required representation and also the proprietor, whatever form that was. Is that right? MR CAPLAN: Yes. I think the interests of those people and of Associated Newspapers Limited. LORD JUSTICE LEVESON: Yes. I'm going to ask others that, because it's recently been suggested that proprietors haven't had the opportunity to take part, and I'd rather thought that each of the newspaper organisations who are represented are representing all the strata of the organisations from which they emanate. I just wanted to check that position. Mr Brown, is that so for -- MR BROWN: Yes. It's not any different for us. I mean, obviously if there were to be a conflict between the managers of the paper and a journalist, something different might arise. LORD JUSTICE LEVESON: What I said, I think, at one of the earliest hearings was that this is not the normal contentious litigation, and that I would hope that those who were acting for titles could manage the differences of view perfectly satisfactorily without feeling themselves conflicted from so doing. I'm not going to start saying, "Well, you can't say this because somebody in your team says that". I'm keen to get everybody's help to such extent as they can give it, and -- MR BROWN: Yes, I understand that, and I've taken a rather less restrictive view than one might have done in ordinary litigation. To take the example with Ms Jellema, she talks about the PCC being a slap on the wrist; the editor would say something very, very different. LORD JUSTICE LEVESON: Yes, I understand. Thank you. Can I ask the same about News International? MS BOASE: This team acts for News International and its subsidiaries and three titles. It's never been relevant as to whether we act for the proprietors of News International. If you'd like me to take instructions on that, I can. LORD JUSTICE LEVESON: I hope you are, and you might obviously like to consider it. It's only because it was suggested that I wasn't listening to proprietors that I felt it right to ask the question. MS BOASE: We'll take instructions. LORD JUSTICE LEVESON: Anything else? MS PATRY HOSKINS: I don't think so, unless anyone has anything they would like to raise. LORD JUSTICE LEVESON: Thank you very much. It's Thursday. (The hearing adjourned until o'clock on Thursday, December ) I N D E X MR STEVEN JOHN NOTT (affirmed) ....................... Questions from MR BARR ........................... MS CHARLOTTE ROSE HARRIS (sworn) .................... Questions from MR BARR .......................... MR DAVID LEIGH (affirmed) ........................... Questions from MR BARR .......................... MR CHRISTOPHER WALSH ATKINS ........................ (affirmed) Questions from MS PATRY HOSKINS ................ Transcript-of-Afternoon-Hearing-6-December-2011.txt
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-9-December-2011.txt Friday, December (.am) LORD JUSTICE LEVESON: Yes, Mr Jay. MR JAY: I must apologise for the delay; it is entirely my fault. The witness today is Mr Richard Thomas. LORD JUSTICE LEVESON: Very good. MR RICHARD JAMES THOMAS (sworn) Questions from MR JAY MR JAY: Mr Thomas, please make yourself comfortable. Your full name, please? A. Richard James Thomas. Q. Thank you. Mr Thomas, you provided us with six witness statements. I'm going to identify what they are in a moment, but each one is signed and has a statement of truth and it constitutes your evidence; is that correct? A. Yes. If I could just start by apologising to the chairman and to everybody here for my non-appearance last week. My voice was non-existent last week. I appreciate it caused enormous inconvenience and I do apologise. LORD JUSTICE LEVESON: No apologies are necessary, Mr Thomas. It's obviously very important that you're fit and your evidence is clearly very important. Can I say that I'm very grateful to you for the obvious care that you've taken in responding to the various requests that the Inquiry has made of you and producing these statements which form the basis of your account of these events. Thank you. A. Thank you, sir. Mr Jay, I have submitted six witness statements to the Inquiry. The first was one I think I put forward in September, a full statement -- MR JAY: Just pause there, Mr Thomas. I want to identify them precisely and then we'll go through them. You're right; the first one you submitted, if I may say so, extremely timeously -- and it's a detailed statement -- on September of this year. It's tab , I think, in the main file you have there, and it has exhibits; is that right? A. That's correct. Q. It sets out in your own words the narrative from between about to the present day, or probably more pertinently, to when you left the ICO's office; is that correct? A. It's correct in the sense I left in . My first statement concentrated primarily on events leading up to the publication of the two reports by my office and the events following that. Q. Thank you. Your second statement is dated October . It has exhibits RJTto . It will be in tab , I believe, of the file we have prepared for you and it deals with the detail of the ,requests which were made of Mr Whittamore. We'll look at that in more detail in due course. Your third statement is dated November . It's tab in that file. It deals with the position of the journalists, without, of course, naming any of the journalists, which policy we're going to continue to adopt, Mr Thomas. Your fourth statement is November, paragraph , and that deals with Mr Owens' evidence, which you had seen his witness statement; is that correct? A. That's correct. Q. And it's your tab . Then there's the fifth statement of November, tab A, which deals, if I can describe it in these terms, with Associated Newspapers' evidence; is that correct? A. That is correct. Q. And your sixth statement as recently as December, with exhibits RJTto . This deals further with the evidence of Mr Owens. Is that correct? A. That is correct. If I could just explain that when I prepared my second, third and fourth witness statements, I had not then had the copies of the legal materials which you've received from my former office. Having received those, I prepared my sixth statement on Tuesday of this week. Q. Thank you. A. There's nothing inaccurate in my previous statements but my sixth statement elaborates some of the points made previously. Q. Mr Thomas, in order to make your evidence as sort of vivid and intelligible as we can, I'm not going to cover it quite in chronological order. I'm going to do it thematically, if I may. Before we start, may I invite you to tell us a bit about your career? This is paragraphs to of your first witness statement. On the unique reference numbers we're using, the last five numbers are . In your own words, your career, Mr Thomas, in the law. A. Well, I'm trying to think. I was Information Commission from to . Before that, I had been in various roles. I qualified as a solicitor in . I trained and qualified at Freshfields. I spent three years there. I then went to the other end of the legal spectrum. I became the solicitor for the Citizens Advice Bureau on a full-time basis. In , I was the legal officer and then head of public affairs for the National Consumer Council. In I was appointed as the director of consumer affairs for the Office of Fair Trading. In , I joined Clifford Chance as their director of public policy, then -- November until June I was the Information Commissioner. Currently, I am the part-time chairman of the Administrative Justice and Tribunals Council. I do that about three days a week, and about three days a month I'm a consultant to a think tank which is called the Centre for Information Policy Leadership, based with a law firm in the United States and I'm also -- I'm the deputy chairman of Which? the consumer association. I'm a trustee of the Whitehall and Industry Group and I'm a member of the management board of the International Association of Privacy Professionals. Q. Thank you very much, Mr Thomas. Paragraph deals with the functions and role of the Information Commissioner. This is . You cover really two different and, in one sense, antithetical functions. On the one hand, you are concerned with privacy in the context of the Data Protection Act, but on the other hand you are concerned with the dissemination of information under the Freedom of Information Act . Is that correct? A. Yes. When I started at the end of , the Freedom of Information Act had been passed but had not yet come into force. It came fully into force on January . But the functions under both acts have certain circularities. I think they dovetail and are complementary to each other. The way that I commonly describe the various functions is that the Commissioner is required under the Acts to carry out various duties, and the language I used was that we were partly a regulator, partly an ombudsman, partly an educator and partly a policy adviser. So we had a range of functions under both Acts which were involving both regulation, dispute resolution, education of both organisations and the general public and also giving policy advice at the national and at the international levels. Q. You confirm -- and this is correct -- that you are not a regulator of the press as such, nor do you have any powers under RIPA; is that right, Mr Thomas? A. No powers whatsoever under RIPA. Every media organisation will be -- in the language of the Data Protection Act will be a data controller. There's over ,data controllers, and I think it's inconceivable that any person involved in the media would not be a data controller, so they would have to notify their activities on a public register maintained by my former office. Q. Yes. Under section , subsection of the Data Protection Act, a data controller -- you'll know this off by heart but others will not necessarily -- is a person who, missing out irrelevant words: "... determines the purposes for which and the manner in which any personal data are or to be processed." So that would cover media organisations, would it not? A. Indeed. Q. Presumably it would cover personal data transmitted by someone like Mr Whittamore to a media organisation? A. I think it almost certainly would. I'd need to think closely about that particular question, but one of the points I should make is that the powers of the office in relation to what I can broadly call the press were really quite severely circumscribed, particularly by section of the Act, which disapplies in the effect -- I'm using lay language, perhaps, but disapplies many of the powers of the Commissioner where information is being processed in most cases for the purposes of journalism. That is an incredibly complicated part of the Act. We could spend a lot of time looking at that. I don't think it's particularly relevant to most of the issues which the Inquiry is examining but I do actually have a cribsheet on section , if that would help the Inquiry. Q. May we attempt an overview of your powers. See how far we get with this. First of all, please, Section , which, sir, will be found in Mr Graham's bundle under tab . It's page . I'll not going to spend very long on this, Mr Thomas, but just so that we see the terrain. We've seen Section before with another witness. As you say in your witness statement, this is the criminal provision, of course. There are three possible actors: the person who obtains, the person who discloses and the person who procures the disclosure of information to another person; is that right in broad terms? A. Yes. Section is really an entirely self-contained part of the Act. Its origins go back to legislation . There was a scandal involving Norman Lamont -- Lord Lamont at the time. His credit card details became available in the press and I understand there was concern at that time and that led to an amendment, I think, to the Criminal Justice Act of and that in due course was transposed into the Data Protection Act, so it's a self-contained part of the Act. Q. Certainly. Mr Aldhouse told us about that and you're absolutely right. There's just one point, though, I need to raise with you on Section ()(a). Would you agree that one can obtain personal data through the use of an agent? A. I don't recall ever having that point discussed or analysed inside the office. Certainly my understanding of the conventional wisdom inside the office that "obtain" meant more than just receive. It meant actually seek out and obtain. "Disclose" I think is self-evident, and primarily where agents were concerned, I think we would be looking primarily in terms of section (b), the procuring element of Section . Q. So a journalist then -- A. I understand the argument. I'm simply saying that primarily when we had -- I think you have to also recall that the majority of the prosecutions we brought were against people who had actually sought out and obtained the information in that sense without the consent of the data controller. I understand the point you're making. I wouldn't like to make a definitive ruling here, nor am I aware of any debate in the office on that particular point. Q. So a journalist who asked a private investigator to obtain personal data and then receives it through the agency of the private investigator, you don't think clearly falls with Section ? A. I'm not saying one way or the other. I'm just not aware of that one being tested in court or elsewhere. LORD JUSTICE LEVESON: Normal principles of aiding and abetting would probably work, in that he is also obtaining it, but is what you're really saying that because of ()(b), the procuring offence, it may not take the matter very much further? A. Well, I have to speculate, sir, but when Parliament drafted it in this particular way, I can only speculate that they included the procuring offence within Section to cover the situation of where somebody got someone else to obtain the information. But I don't know. The point has not been tested. MR JAY: The other point, please, on Section is Section ()(d), which sets out a defence that in the particular circumstances, the obtaining, disclosing or procuring was justified as being in the public interest There are really two points a that. The first is that this is an objective test, is it not? A. That is correct. Q. Secondly, the public interest is not defined in the Data Protection Act; is that correct? A. That's correct. Q. Did you ever provide guidance as to what it might mean? A. In , when there was a great deal of controversy about the criminal justice and immigration bill, which I'm sure we'll come onto later, at that time people were saying, "We're not sure exactly what the public interest means in this situation. You are the Commissioner. Can you help us?" And we therefore drafted a draft statement setting out what we thought the public interest meant in those circumstances. I cannot recall for sure whether that was ever published. I think it was shared with some of the people we were talking to at the time and it was certainly shared with, for example, the minister of justice. But I -- for various reasons, I don't think it was published. I'm not even sure whether to this day it's been published. But there is -- one of my exhibits does actually set out the draft as it stood in early . Q. Thank you. We'll come to that exhibit, but I think you're right in saying we've seen no evidence that it was published. May I just delve into this public interest point a little bit more? Would you agree that there wouldn't be a justification in the public interest if whoever it was was merely fishing for information without having identified in his or her mind what the public interest might be before starting on the exercise? A. I certainly agree with that as a broad proposition. One would have to look at the circumstances of every case, but the line that I took was that anybody who was intending to rely upon that defence ought to be absolutely clear as to why they were obtaining information unlawfully -- which would otherwise be unlawful. What would be their defence in public interest terms? And the line I took in many, many conversations was it would be important for the journalist to record what he thought the public interest was, to get advice from his legal advisers, authority from his editor or his superiors and therefore anything which was a pure fishing exercise prima facie was certainly going to look as though it would be very difficult to justify in public interest terms. Q. Another general point. I appreciate that every case is fact-specific, but some have said, "We need to contact people in order to tell them what a story about them is going to be and that we're about to publish that story." Do you have a view as to whether obtaining information of a confidential nature for that purpose would be justified in the public interest? A. Again, it's difficult to say without looking at the particular circumstances of each case. I do understand the need for journalists to seek to check their story with those concerned. I do understand that there is a public interest in freedom of expression which feeds into the balance, but I think it would have to be a difficult situation for someone to say that just to find out the name or the telephone number or the address of someone so they could talk to them would be a matter of public interest. I'm not ruling it out, and indeed if I can give an example which was within the Whittamore papers -- I won't name names but I'll just give an example. I think it was a fairly exceptional example. It was where a minister had resigned from the Labour government and his name was in the Whittamore papers. This was after my time, but I understand that he got in touch with my former office and said, "What's all this about?" The office looked at the record in more detail and it appeared in that particular situation the journalist was trying to track down the minister to get a statement from him as to why he had resigned over the weekend. Now, that might -- I'm not saying it was, but that might be justifiable in public interest terms. But that was exceptional. That was not the the sort of material which we saw in the Whittamore papers. Q. That's helpful. The sanction, of course, when we're looking at this version of the Act -- it's set out in section , I think, not in Section , but looking at the current state of the law, there's a limited fine if it's trialled before the magistrates' court but there is an unlimited fine if it's trialled on indictment; have I got that right? A. That is correct. Q. Let me just touch on an ancillary power which arises in the context of this specific criminal provision. Under schedule of the Act, the office has powers of entry and inspection if it has reasonable grounds for believing that an offence has been committed; is that correct? A. That's correct. Q. But you need a warrant from a district judge? A. Indeed, we had to go to a judge and get a warrant before we could use those powers. Q. If we touch on other powers which you have outside the context of criminal sanctions. These are therefore regulatory powers. Section first of all, which is our . There's a power to serve an enforcement notice, is that right, if you're satisfied that a data controller has contravened or is contravening any of the data protection principles? A. Yes. This was the main formal power which the office had where we felt that there was non-compliance with the requirements of the legislation. We didn't use it that frequently, but there was a power to serve an enforcement notice on a data controller and that could be challenged, but if it was not challenged, then in due course it became a criminal matter not to obey the terms of an enforcement order. So this was the main power available to us as a regulatory body. Q. Yes. It's the first of the powers under part of the Act, the heading "Enforcement", so it's the first of your mainstream powers. Would it in principle cover media organisations who are focusing data in contravention of any of the data protection principles? A. Yes, it would in principle, but then you have to look very closely at section , which disapplies most of the -- or many of -- most of the enforcement powers where one is dealing with personal data which is being processed for journalistic reasons, subject to the detail of the law. Q. That's right. We're not going to spend a huge amount of time on section , owing to its complexity, but can I just alight upon it if I may. This is our page . Just to see the consequences and the reach of the provision. Do you have it to hand, Mr Thomas? A. I'm looking, if you'll excuse me, at both section and my cribsheet. This is incredibly complicated legislation and I should also say that we rarely had to engage with it in detail because the issues didn't arise. Q. Just to see the scope of the exception, under section ()(a), (b) and (c) as well, probably: "Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material." So it has to be processing with a view to publication. It can't be processing for some lesser purpose; is that correct? A. That is correct. I mean, if I can perhaps just take you through my cribsheet, because it puts it in plain language, or would you our rather go through it section by section? Q. I don't want to spend too much time on this. It's only if you feel that by doing it in my way, as it were, we're going to arrive at a misleading position. We can see that (b) and (c) are cumulative requirements, so if you don't fall within (a), you don't get off the ground. But (b) is: "The data controller reasonably believes that having regard in particular to the special importance of the public of interest in freedom of expression, publication would be in the public interest." So we're dealing always with publication. A. Yes. Q. And then (c): "The data controller reasonably believes that in all the circumstances, compliance with that provision is incompatible with the special purposes." So they're quite strict requirements and they're tied in with publication. But if you do satisfy all the requirements, all of the data protection principles are disapplied apart from the seventh; is that correct? A. And the seventh is security, keeping information secure. Q. Secure in what sense? A. One of the principles -- the seventh principle is that data controllers have to take appropriate steps to keep the information secure, stop it moving away from the data controller, and that seventh principle is not disapplied, but all the others are effectively disapplied. Q. I'm not going to go any further into section -- A. What I would just add to that, though: also disapplied are the subject access provisions which give individuals the right to see their own data held by a data controller. Also disapplied, the right to prevent the processing of personal data in these circumstances, also the rights in relation to automated processing and the rights on rectification, blocking, erasure and destruction. All those parts are disapplied and I suppose the central message is that, reflecting the requirements of the underlying directive, the hands -- the application of the Data Protection Act to organisations processing for these purposes was very limited indeed. Q. It's probably pretty obvious what the next question is going to be but I'll ask it nonetheless. If a journalist, for example, is obtaining information, let's say, for the purposes of argument, merely to contact someone who is about to be the subject of a published story, that would not fall within section , would it? A. Well, almost certainly not, unless you could connect it with the actual real prospect of a story being published. Q. The processing has to be with a view to the publication? A. Indeed. Q. If you're processing with a view to contacting someone, that's outside section , isn't it, Mr Thomas? A. I think that's right, yes. Q. Okay. The other enforcement powers, under section you can serve an information notice, is that right, on the data controller? A. That's correct. Q. That's our page . You do that in order to ascertain whether the data protection principles are being applied with, don't you? A. Yes. I mean, essentially to find out from the data controller what is going on inside your organisation. We very, very rarely had to use that power. I can't think of any occasions I was personally involved in where this power was used. The equivalent power was used much more heavily in the Freedom of Information Act, but we found in most cases just asking the data controller to co-operate with us to supply information was sufficient for our purposes. So we didn't, I think, use that at all frequently. Q. The last two provisions -- perhaps one of the most important ones. Section , which is our page , your general duties: "It shall be the duty of the Commissioner to promote the following good practice by data controllers and in particular so to perform his functions under this Act as promote the observance of the requirements of this Act by data controllers." So that, as it were, is the cornerstone of your role? A. Indeed, that's the promotion of good practice. When I referred earlier to our role as an educator, that primarily flows from that particular subsection. Q. Yes, that's section , subsection (). This concerns dissemination. A. That's right, and we published a lot of materials, both for data controllers and for individuals to raise awareness of the requirements of the legislation. Q. Thank you, and the final power, which may be quite an exceptional power, is section . Section , subsection (), section subsection () is a mandatory duty: "The Commissioner may, from time to time, lay before each House of Parliament such other reports with respect to those functions as he sees fit." Am I right in saying that the two reports you published in were under section subsection ()? A. Yes, both those reports were laid before Parliament using that power. It was the first time in some years, I think, that the power had been used because I think the equivalent power had been in the 'Act and my two predecessors had never seen fit or had never had reason to lay reports before Parliament. But the two reports, which we'll come onto later, were both laid under that particular be subsection. You say that's the only other part of the Act. You've skipped over section , which is the power to -- or the duty to respond to a request. Essentially that is the dispute resolution, the complaint-handling part of the office, and we had thousands of people who came to us saying, "I think that someone has breached mile rights under the Act, I want you to look at this", and we had a large team of people who were investigating, using the rather complicated but -- the request for assessment of a process of section . Q. Yes. May I go back to paragraph of your first witness statement. You tell us there that: "Section enforcement was the responsibility of a small investigations team ... composed former police and Customs officers ..." Well, we've heard from one of them, of course. Did you feel that the team was large enough for your purposes at all material times? A. I think we always felt that our teams were not large enough. We felt underresourced. During my time, we changed the funding arrangements for the office. When I started, we received fees from data controllers when they notified us and all that money had to be handed across to the Treasury, and then we got a grant in aid back. I wasn't happy with that situation and I felt that the correct and better way of doing it was that we should receive the money and fund the office from the fees received, and that was changed about two years after I started. And that did enlarge the resources available to the office for data protection purposes, but it was a pretty small team which was responsible for investigations. And I think as I said in my statement, there were two main activities for that team: first of all, to chase up cases of non-notification, which is also a criminal matter -- if you don't notify when you're supposed to notify, then that was investigated and the team did that -- and also they were the team which were charged with investigating Section cases. Q. Yes, and you tell us in your fourth witness statement at paragraph -- this is under your tab , our page -- that the formal chain of command was that Mr Owens, who I think was the senior investigations officer, reported to Ms Jean Lockett, who reported to Francis Aldhouse, who reported to you; is that correct? A. That was the formal line of command, that's correct, but I also go on to say that the unit when I arrived was a largely self-contained unit. They were in a different building and they were almost semi detached from the rest of the organisation, and I felt over time that not only were they self-contained but to a large extent self-governing and within about a year or so of my arrival, I put changes in place to bring them much more into the structure of the organisation. That led to the creation of what became the regulatory action division, and they then formed a much coherent part of the rest of the organisation. Q. You tell us in paragraph of your first witness statement that a Section offence is often at least as serious as phone hacking, owing to the nature of the information which is being obtained. It might be highly confidential information in general terms; that's right, isn't it? A. I would say that and I'd like to, I suppose, stress that point. Obviously over the last few months I've followed the concerns about phone hacking and during my time as Commissioner, we didn't have any suggestion that there was phone hacking going on in the way it's been revealed in the last few months. But certainly we were very concerned indeed about the security of personal data held in many, many databases in the public sector, the private sector and elsewhere, and we were very aware and -- a range of activities about the sensitivity of very large amounts of personal data and the risks of that getting into the wrong hands. And so I would certainly express the view that information held in databases, whether it's tax affairs, whether it's financial affairs and the bank account, whether it's medical records, social security records, your shopping details held at a retailer, the records of telephone companies, the records of -- education records, right across the spectrum, public and private sector, we were very concerned indeed that personal data should be handled properly, and if there was unauthorised access to such data, it's a matter we took extremely seriously. Q. Thank you, Mr Thomas. You tell us in paragraph that when you started as Commissioner, you were briefed by members of the investigations team of their belief that there were extensive networks of private investigators who were, I paraphrase, breaching Section . You touch on that in your first report. Were there any connections with media organisations or were these briefings far more general? A. They were general, but there was a background and I was aware -- and I think it's in one of the witness statements you've had from elsewhere -- that the office, I think back in the mid-s, had taken action against a private investigator who was supplying information to media sources. There had been a case -- I think it was in northwest London. The press release I hadn't seen until last week, but the press release was from my former office and it's in the bundle which you've received from the Press Complaints Commission, and I was aware of that as background. I was also aware -- and this happened in the first two or three months of my time as Commissioner -- that the Select Committee was holding the hearings looking into these matters, and they are documented in the first of our reports. If I can just draw attention to the what was said there, which sort of set the background. This is paragraph .of our report, "What price privacy?" and this refers to previous press reports. The Guardian report in September , indicating a data black market and highlighting a private detective agency which had been found to have sold information from police sources to the News of the World, Daily Mirror and Sunday Mirror. Second, a Sunday Telegraph report in December that private detectives routinely tapped private telephone calls for the tabloid press, with some agencies deriving the bulk of their income from such work and such clients. A report in the Times of January that the Inland Revenue's human resources director admitted that there was evidence to show that some employees had sold confidential information on tax returns to outside agencies without identifying the agencies concerned. So that was background, if you like, from the time before I started. As I was starting, the select committee was looking at some of these matters, and this was, again, recorded in paragraphs .to .of our report, "What price privacy?" Q. I'll just give the page. . It's under our tab . A. And if I can just -- yes, ., we then sort of sum up what was going on there and we say: "It's hardly surprising that the Select Committee concluded that these intrusive methods of data gathering amounted to 'a depressing catalogue of deplorable practices'." And so I was aware both from my general knowledge as to what I was being told when I arrived at the office that when the team said, "We think there are networks of people out there doing this sort of thing" -- that was the sort of briefing which I was getting. Q. Thank you, Mr Thomas. Paragraphs and of your first witness statement deal quite briefly with Operation Motorman. I'm going to chart the following course through your witness statements just to see where your evidence leads. We know from other evidence that the search which led to Operation Motorman took place to Saturday, March . Do you follow me? A. Yes. Q. I'm going to invite you now to jump through to exhibit RJT, which is to your sixth witness statement, which is a file note, I believe, or a diary entry. A. I have the original books here, which may be helpful to show it in context. RJT? Q. Yes, thank you. A. Yes. Q. If we can frame it chronologically, you tell us that you think this was completed on March , which was obviously the following Monday; is that right? A. I can't be certain of that. It's simply a note in my personal notebook of my tasks to do, various things for my secretary with others in the office and there's a note there which I -- it predates the page which is dated March , which suggests that it either was March or possibly the previous week, but I'm pretty sure it was March. Q. If Mr Owens' evidence is right -- and I'll come to it -- it must have been before your meeting with him. Can we just see what you say on RJT? You've written: "Francis [underlined] newspapers/[is that right?] Section ." A. That is correct. Q. What inference do you draw from that, trying to exclude all subsequently acquired knowledge? A. That tells me that I needed to have a conversation with Francis Aldhouse about newspapers vis-a-vis Section . So something had triggered the need for me to have a conversation with him about newspapers. Q. Yes. Do we draw the inference that you must have learnt that this raid had taken place on March before you completed that note? A. I think that's very likely. Q. Yes? A. I mean, it is possible that I was told the previous week that they were going to do the raid. I don't have any clear recollection at all. But it was either it was about to happen or had just happened. Q. "Appointment of AC"? What does that mean? A. Oh, that's appointment of assistant commissioner. We were going to be appointing a new assistant commissioner. Q. What about the last entry there, "Risk"? A. That was to do with the need for a new risk register for the office to improve our risk management arrangements. Q. So it's irrelevant for our purposes? A. Indeed. Q. Why did you speak to Mr Aldhouse about this? A. I have no idea or recollection. I mean, simply, you know, he was my deputy and this was something which had come to my attention, but I can't help you, I'm afraid, beyond simply noticing it was on the radar at that time. Q. One reason might be that he was your deputy, it was a natural thing to discuss with him because after all, it was potentially an important issue? A. Oh yes. Q. I must ask you this general question, Mr Thomas. Presumably you have read the transcript of Mr Aldhouse's evidence? A. Yes. Q. Do you have any comment you would like to make about his evidence which might assist the Inquiry? A. Well, I think it's to summarise what he was saying that he was not heavily involved in these matters. Francis Aldhouse had been the Deputy Commissioner for some years when I started, and he was my deputy for about another two and a bit years until he took retirement. He had reached full retirement age. He was primarily focused on the policy aspects of data protection, both domestically and at the European level, and he didn't have very much of a hands-on operational engagement. One of the reasons I wanted to make some changes was that I felt there was a need to have a much more active style of management across the office, but I think Francis was somewhat disengaged on these matters. He wasn't excluded altogether, and there are some items of written evidence which show that he played a part in some of these matters, but it is also the case that he had had some sort of falling out with Alec Owens, some -- I think probably one, two years before I arrived, he had -- I think it was no secret across the office. He had issued a formal reprimand to Mr Owens and that had not gone down very well with Mr Owens and it was common knowledge there was not very good feeling between the two of them. Q. There was an informal meeting, is this right, where at least you were there and Mr Owens was there and possibly others were there a few days later? Are we agreed about that? A. Well, I can recall the meeting when Mr Owens and some of his colleagues came to me with cardboard boxes of materials, and this was clearly the stuff which had been seized. Whether that was on March or whether it was some time later, I simply can't be sure, but it was pretty soon after the raid and it could even have been on March. Q. The date isn't going to matter. Mr Owens put it a few days after the raid. A. At that time, they came to me and I think in my written statement to you, my first written statement, I said they came in with what I described as a treasure trove. I'm not sure whether that was their language or mine but it was certainly a wealth of material which they had seized. Q. And was Mr Aldhouse there? I think your evidence is you're not sure? A. I'm simply not sure. Q. Did Mr Owens demonstrate the audit trail, if I can so describe it, which led from the newspapers through the journalists to Mr Whittamore, Mr Whittamore's blagger, the target of the request, the nature of the confidential information obtained and then the fact that the newspapers were then invoiced and paid for that information? Did he, in general terms, demonstrate that? A. In general terms. I wouldn't use the language "audit trail", but in general terms the message was: there's a lot of material here which connects the various players together and I do recall -- I think I used it in my witness statement -- the phrase "spider's web". There may have even been a diagram of some sort put up to show how they all linked together. So certainly that was the general message, that there was a lot of activity which began to show how the various players were interconnected. Q. And obviously you had a sense of the scale of the material, the use of the phrase "treasure trove", but did you also have as sense of the seriousness of all of this in terms of the nature of the confidential information which was in question? A. Yes, very serious, but alongside many other serious matters, if I can put it that way. I was dealing with a wide range of issues. It was serious, but I didn't have the sort of -- I don't want to give the impression that this was earth-stopping time, the entire office was suddenly focused on what had come out of this. This was something which was interesting. It indicated that their suspicions had been vindicated and would lead to prosecutions in due course. Q. Can I ask you, please, about your fourth witness statement, paragraph , which is our tab , page . You really cover the first five lines. You say you recall congratulating Mr Owens and team for a job well done; is that right? A. That's correct. Q. You don't recall any course of action being formally or informally recommended by Mr Owens or anyone else, let alone being bemused? A. That's correct. I certainly refute that. I don't think I'm a person do get bemused by anything, frankly, and I was interested in what they had found. Q. Then you say specifically: "I do not recall any proposal, on that or any other occasion, that any journalist, nor indeed any other customers of Steve Whittamore and his associates, should be investigated." Are you saying that the matter was simply left silent? A. Well, it was not a matter with which in any way I was engaged. I have absolutely no recollection whatsoever of discussing the investigation of journalists or instructing anyone one way or the other about the investigation of journalists. This was simply not in any way a matter with which I was involved or discussed, and I am pretty sure I would have remembered if I had been asked or in any way involved in that sort of activity. Q. Was it your expectation then that the investigation would take its own course, would follow the evidence where it led, and if journalists needed to be investigated, they would be? A. That's exactly right, Mr Jay. I mean, I was not involved in the detailed operational activity of that team. I had only been in the office some two or three months at that time. My understanding was that they would go ahead and do whatever needed to be done to bring the case forward. Q. Paragraph continues, towards the end: "One of my central memories of that meeting is a recognition of the challenge presented for a very small team by the sheer bulk of the evidence, without any suggestion that even more should be obtained." So there was a concern that this was a -- or likely to be a substantial exercise for your team; is that correct? A. Yes. I think I was certainly given the very clear message that this was a lot of material there which would need going through in great detail, and I assumed, if that's the right word, that they would get on with the job. Q. I should deal with the final sentence of paragraph : "I do not recall whether Francis Aldhouse was at that meeting, but I do not ever recall hearing the words attributed to him." So your evidence is that you certainly don't recall Mr Aldhouse saying words to the effect: "We can't take on the journalists, they're too big for us"? A. I have no recollection at all of him or anyone else using that sort of language. Q. But in paragraph you do recall -- I think that should say "us": "... being told that the materials which had been obtained would be evaluated so that appropriate prosecutions would follow where the evidence led." A. That's absolutely right. Q. Then this sentence: "The targets for prosecution were seen as Steve Whittamore, his three or four private investigator associates and the corrupt officials who were supplying confidential information." That suggests that there was some sort of confine or restriction on the targets and you wouldn't look wider to the journalists, doesn't it? A. I think you're reading too much into my language there. All I'm saying is that the team, as I understood it, had been investigating and had been prosecuting various people who were private investigators, and this was the main focus of that team's activities, and so either then or at some later stage, I can't recall -- but I mean, that was the central thrust. I have, on many occasions on this, both for this Inquiry and in the discussions and debates of , , , , used the language that our targets were the investigators because they were the middlemen and I used the language we are, if you like, comparing them to the drug dealers. All I'm saying is that was not to exclude anybody else, but they were our central target. Q. Was not Mr Owens at least communicating to you his message: "Look, we have good evidence against everyone involved in this supply chain going right up to the journalists and to the newspapers; let's investigate them"? A. Well, that was never put to me. I don't recall him or anybody else saying, "We must go and investigate the journalists." It was simply: "Here is this mass of material. Let's go and see what we can make of it." Q. But the journalists were linked into the spider's web, as indeed were their employers, because the documentary evidence existed to tie them in, didn't it? A. Well, that's right, and when we come on to looking at the legal papers, either now or later, I mean, we'll see that clearly my legal team, who were increasingly on the lead on this, were very much keeping alive the option of prosecuting journalists, so I don't know if now is the right time but we can go through the legal papers which show very clearly that throughout , right through , even early , the question of what to do with the journalists was a very live question. Q. In paragraph of this witness statement at -- this is set out in your third statement and you're repeating it here: "I do not have any recollection or awareness whatsoever of preventing any investigating officer or anyone else from interviewing any journalist or not allowing such interviews or further investigations." Is that correct? A. That's absolutely right and it's very important that I should refute this. I had neither the rationale nor the opportunity, and I certainly have no record, no memory whatsoever. It's not the sort of thing the Commissioner does, to say to people: "You must either investigate [so-and-so or such a class of person]", or not do so. This is an operational matter. Q. Unless, of course, you had made some sort of policy decision at an early stage not to pursue the journalists? A. There was no such policy decision, certainly not at the early stage. As we come on to the events of November , where we had received advice from our external counsel about the cost and the resource implications of going further, that's when I went to the Press Complaints Commission. It is possible that Mr Owens has somehow confused or conflated all the dates and interpreted that as some sort of policy or some sort of instruction, but that was not the case. Q. Can I invite you, please. to look at your second witness statement, which is under our tab , and move to paragraph of that witness statement, which is page . The first sentence touches paragraph .of the report, which I'm going to deal with in a short moment. I'm more concerned with the second sentence, where you say: "In fact, I am not aware that any consideration was actively given to prosecuting journalists by the ICO or the CPS when the initial charges were laid. This would doubtless have reflected ..." And you set out three matters, the first of those which doesn't relate to the ICO: "The more serious matters of corruption on the part of various employees within the police, DVLA et cetera." (b): "The focus on those at the heart of the organised trade in confidential information." That's private investigators and their agents, so that is relevant to you. Then you say: "The much greater challenges in bringing a successful prosecution under Section ()(b), which is the procuring offence." So aren't you saying there that certainly at the point when the initial charges were laid, you weren't aware that any consideration was actively given to prosecuting journalists? A. The word to emphasise in that sentence was "actively". I wasn't aware that anybody was actively considering one way or the other whether to prosecute journalists. I wrote that statement on October. Since then, I have seen the file from our legal department which has come to light much more recently, and that shows that in fact active consideration was being given, because at the conference with counsel in October , there was discussion about this matter. The in-house lawyer, there's an attendance note from her -- we'll come to that later -- which discusses the resource implications. I'm simply saying I wasn't aware of that when I wrote this statement. That remained the case. Q. Okay, well, we'll come to -- A. Then I give my three -- (a), (b) and (c), they are my speculation, as it were, as to why that might have been the case. Q. Didn't those considerations which you set out under (b) and (c) -- we're not concerned so much with (a) -- apply at all material times and colour your thinking at all material times? A. I think I became more aware of the implications of this case towards the end of , and that's when I went off to the Press Complaints Commission, but I can't really say that I was giving very active consideration to these matters, ie I don't think really until much later that I gave any sort of serious consideration to why it was that we weren't going for the journalists. I was at all times clear that, you know, the main focus of our case was to be focused on the middlemen who are organising the illegal trade. Indeed, if we come on to talk about the two reports my office published, that even then was still very much the focus of our reports. Q. We know as a fact, don't we, that the journalists were never interviewed by your office? Are we agreed about that? A. Yes, that's my understanding. I've discovered in the last two weeks that it appears to be the case that the Metropolitan Police did investigate four journalists. I don't know if you'd like to turn up -- Q. That's correct. That's in RJTand that was in the context of Operation Glade. A. No, it's the materials you've received I think last week from the -- my former office. If I can just turn up that, because I think it does shed some light onto this. Q. We will come to it, but I want to be careful to differentiate between what the police were doing as part of their functions under Operation Glade and what you were doing. Your office did not -- A. You are taking me beyond my personal knowledge, but I, at some point, became aware that in effect we'd handed over the conduct of the case to the Metropolitan Police because of the more serious matters of corruption inside the police service itself, inside DVLA, inside telephone companies, and for that reason, both the lead conduct of the case and the evidence had been handed over to the police and the Crown Prosecution Service. Q. I'm going to separate out, though, what the police were doing under their general powers, enforcing the criminal law, and what you were doing in relation to data protection. The police were concerned with corruption and that was the focus of Operation Glade. You had no jurisdiction there, did you, Mr Thomas? A. Well, not jurisdiction, but I think -- my understanding was that there was a feeling that we had to co-operate with those matters. They were, if you like, a much more serious matter and in effect, I think -- and the paperwork which I've now seen brings this out -- we were in sort of second place, as it were, waiting for those cases to be brought forward. Q. Whereas it is true that you were awaiting the result of the prosecutions in Operation Glade, those matters were outside the bailiwick of the ICO; are we agreed about that? A. Outside the direct bailiwick, yes, but related. Q. Right. A. I've made the point many times that where you have a Section offence, there are going to be several actors. Q. Yes. A. And if there is corruption and dishonest behaviour which carries a stronger sentence, then it is inevitable, I think, that the case will be handed to the police and to the Crown Prosecution Service. Q. As regards data protection and Section , that was solely within the jurisdiction of the ICO, wasn't it? A. Yes. I mean, the CPS can bring a prosecution, but we -- very much our central responsibility. Q. So if your office was going to bring prosecutions against journalists or their proprietors for breaches of Section , at the very least the journalists would have to be interviewed in order to obtain sufficient evidence; would you agree with that? A. I'm not sure. I'm not a criminal lawyer. I never practised criminal law. I can't ever recall giving serious consideration to that point until the last three or four weeks, and I'm reading the papers, the advice from our counsel. He says somewhere there is evidence of criminal offences being committed by journalists, if not others concerned in the media. So at that point, which was October , he was of the view that there was sufficient evidence for prosecutions against journalists. As I understand the criminal process, it will be customary to at least seek an interview with a journalist before bringing a prosecution, but that would have been much later, as I understand it, in the process. If there had been a decision that we were going to prosecute a journalist, then at that stage we might have sought an interview. We had no power to compel them. LORD JUSTICE LEVESON: I'm not so sure about that, Mr -- A. I'm out of my depth, not being a criminal lawyer, I'm afraid. LORD JUSTICE LEVESON: Have you moved from March? Because I have a question about March, if I could go back to that. Is it convenient for me to? MR JAY: Yes. LORD JUSTICE LEVESON: But only if you've finished March. MR JAY: Yes, certainly. Carry on with March and then I will -- LORD JUSTICE LEVESON: I just want to ask one question, because I am puzzled about something, Mr Thomas. You've made it clear that you weren't really focused on whether it should be journalists or newspapers that were investigated; you just let Mr Owens get on with the job. That's, I gather, what you've been saying this morning. But the very first word that you write down about this enquiry, according to what you've told us this morning, is the word "newspapers/Section ", and I just wonder whether that doesn't identify that you were very clearly focused on newspapers, in other words what they were doing -- A. Yes. LORD JUSTICE LEVESON: -- from that moment. And if that is right, I don't understand why that wouldn't be a matter of great interest to you from that moment on. A. Well, you are right, sir. You know, clearly I was aware that this was a matter which was serious and I was aware that there were implications straight away of where this might lead, but I think I'm saying that throughout , from March right through until November, my assumption was that we'd be prosecuting wherever the evidence led, and I think probably my assumption was that we would be prosecuting the investigators and it was quite likely that we'd also be prosecuting the journalists. But what I am saying is I personally did not give any serious consideration to that matter, and I cannot recall any conversation or discussion when that particular issue was being discussed. So I have to speculate because my memory is not good enough, but my speculation is when I was told some time in October or November that it was going to be too expensive or too difficult to pursue the journalists, that's when I went off to the Press Complaints Commission. But throughout that period from March to October, as far as I was concerned, it was being handled in what I can broadly call the normal way by those who were charged with enforcing Section . LORD JUSTICE LEVESON: But I would have thought that if the ICO was going to have a go at newspapers or journalists, that has reputational risks of a monumental size and you would want to be kept informed. Is that not right? I mean, explain. Help me. A. There were many, many other matters going on at that time, sir. I've tried to make a note of some of the things. I was -- we had the major debate about identity cards just starting. I was seeking to reorganise the office at that time. We were establishing offices in Belfast, Edinburgh and Cardiff. Major preparations for freedom of information. A big programme to simplify our approach to data protection. A brand new employment code of practice which had been heavily criticised in the press and elsewhere. We had a major problem with bogus agencies, people purporting to be our office and receiving money from other organisations. We had an IT system which was causing us trouble, which was being installed. We had a major row with the audit commission about the way they were carrying out their functions. All I'm saying, sir, is that those were just some of the things I was dealing with. Yes, you're right to say at the back of my mind was the thought that we have a big case coming on here with the media. The evidence I gave you on Tuesday of this week records Jean Lockett coming to the September meeting of the senior management group and reporting then that things were happening with Operation Motorman and publicity could be expected. But at no time throughout this situation did I think we were either going to be prosecuting journalists or not doing so. I just made the assumption is that it was going to be pursued in the normal way. MR JAY: May I try and sum up the position in this way? Given two facts which we know, Mr Thomas -- the first fact is that the journalists were never interviewed by your office and the second fact is that such an interview would be a sineqa non to a prosecution, out of fairness to the journalists on the one hand, in order to obtain further evidence -- does it not follow that either there was a policy decision not to pursue that course or, alternatively, there were operational failures or decisions by the investigators not to carry out an elementary step, namely to interview? A. I don't think it's like that. If there was a policy, it was not one which I had any hand in, one which I knew about, which I made or which I was told about -- Q. That's not quite an answer to the question. Does it not follow, either one or two, and then I'll allow you to say what you wish. A. I'm not sure even then it completely follows because -- perhaps I'm wrong on this, but I mean, if there could have been interviews of journalists at a closer time to the actual prosecution, then is that not a third option? I don't know. Q. I don't follow it, Mr Thomas, at the moment. Is it not either/or? If there's a third option, formulate the third option so that I can write it down and understand it, please. A. If a decision had been made that we were going to prosecute a particular journalist, then my understanding is that it would be necessary to interview that journalist before that prosecution were to be brought. Q. Yes. A. But I'm not convinced that had to happen in that period between March, when the raid had taken place, and October, when the discussion with the external lawyer took place about the prosecution of journalists. I can only rely on what I see in writing, but he says there there is evidence against journalists. Q. Normally an interview would be carried out, particularly if sufficient evidence existed, and we know that sufficient evidence existed in documentary form. A. Mm. Q. So at the moment I am thrashing around mentally to see what other alternative there might be beyond a policy decision on the one hand or incompetence in your investigation officers on the other. A. Well, if you want to put it in those terms, I have to put it to the latter, but I am absolutely -- you know, absolutely clear because I wouldn't have done any of the things I had done right through , , if I had thought at any time that I or anybody else had said: "Back off the journalists." Q. Some of the documents you've provided recently, very recently. We're grateful for that. Can I just refer to those quickly? RJT, please, Mr Thomas. It's your sixth witness statement. You put this forward as suggesting, I think, that the prosecution of the journalists had not been ruled out. Have I correctly understood -- A. Yes, I went through all my notebooks last week or the beginning of this week for , and there I found the top half of that page are my notes of the meeting which I had with the newspaper society. I see there that I talked generally about data protection issues, generally about freedom of information issues, and then about Section , and -- it's on the screen, I think. I haven't -- the screen's not working here, but -- LORD JUSTICE LEVESON: Is it turned on? A. -- I've got my own notebook. MR JAY: It's working up there. A. Well, I can't see it closely, but as long as you all have it. MR JAY: You have the original there, so you're in a better position. A. I have the original, yes. Q. You say there -- A. "Section , enforced law vigorously. Section , breach of confidentiality, no new laws." That was a meeting which I think was with David Newell, who I had known previously, who was the Director General of the newspaper society talking about life in general, and my note there tells me that I was recording there that we, if you like, had journalists in the frame and that as of -- this would have been probably the second half of June of , I was conveying the message to him that journalists were in the frame. Q. You had hundreds of journalists, probably up to , in your crosshairs at this point, but you weren't taking any positive steps to enforce the rigorously against them at that stage, were you? A. As far as I was aware, my team were doing just that. The matter was, you know, with my investigations team. They were following up this mass of paperwork, and as far as I was aware -- I would have had -- you know, we had team briefings probably once a month and I would have been kept very generally in the picture that the case was proceeding. Q. We'll come to the legal advice in a few seconds. A. No, this is just the general investigators. The lawyers, I think, came on the scene a bit later. Q. RJT, while we're amongst these documents, towards the bottom of the page. We're putting this in around October, I think, ; is that right, Mr Thomas? A. Yes, this would have been early October, from the screens in my notebook. Q. You draw to our attention four lines from the bottom: "JL [this is Jean Lockett]: Motorman publicity soon." A. Yes, this is an example, where I actually made a note that at the senior management group meeting, Jean Lockett had come along and had said something about Motorman and I had recorded it as "publicity soon". So that does suggest that the matter was still very much under active consideration, it does suggest that it was going well as far as the office was concerned, and suggests that the options of bringing successful prosecutions were still very much there. Q. It doesn't identify against whom -- A. Exactly. Q. Can we look at some of the legal advice? I was thinking of breaking in about ten minutes, if that's convenient. We have this in a separate file. First of all, we're going to look at the attendance note, meeting with counsel October . It's document . In our separate file, which is file of , it's under tab . This is a meeting with counsel in Birmingham which you didn't attend. A. That's right. It was attended by Karen Nolan, who was the in-house lawyer, Alec Owens and Roy Pollit, who was the other investigator. Q. If you look at the paragraph between the two holepunches, please, we learn that the Metropolitan Police are currently looking at prosecuting Whittamore, Boyall, Maskell and King: "It appears that the charges that will follow are corruption of a public official." Do you see that? A. Indeed. Q. So you are quite entitled to point out -- therefore I'll do it for you -- that the police were not, at that point, considering prosecuting journalists, were they? A. That absolutely appears to be the case. Q. And you're entitled not only to make to point but to underline it, I think, Mr Thomas, out of fairness to you. A. I've only seen this note in the last couple of weeks and I perhaps haven't fully digested it, but that absolutely appears to be the case, that the targets were the four people mentioned. LORD JUSTICE LEVESON: Presumably you appreciated that at the time? A. Sorry? LORD JUSTICE LEVESON: When the prosecution started, there were no journalists there. Did you not think about that? A. I wasn't involved in these meetings. LORD JUSTICE LEVESON: No, no, no, not the meetings, but you were alert as to what was going on with the prosecution process? A. Only in very general terms and I have no recollection. Perhaps we'll come on, sir, to talk about what happened in November. This is in October. But what seems to have happened in November is that almost certainly Karen Nolan came to me and said, "It's not going to be possible to prosecute the journalists." MR JAY: We'll see that in a few moments. A. We're jumping ahead a bit, perhaps. Q. We have already looked at the document with Mr Owens, but we see it towards the bottom of , the sort of evidence that at that stage existed in relation to illegal activity. Do you follow me, Mr Thomas? A. Yes, yes. Q. On the next page, , under the heading where counsel's name is set out: "With regard to the prosecution of the press, although there is evidence to support a prosecution, a prosecution would not be considered favourable because of the financial aspect." That could be read in one of two ways. Either it could be counsel's view, or it could be counsel reiterating what his instructions were. Do you see that? A. Well, I have read this in the former way. That was him expressing a view. Q. But would it be counsel's business to address the financial aspects? Those are policy matters for your office, aren't they? A. Well, I certainly had never read it in the way you're now suggesting and nor do I do so now, because as far as I'm aware, there was absolutely no such policy and I can't think why there would have been such a policy. What I think comes very clear to me, frankly, was that it was the sheer cost and logistical challenge of going against the press which meant that we should concentrate on the investigators. MR JAY: You're, in effect, by that answer endorsing the policy. It was the sheer scale of -- A. Oh, that came later. I mean at this point -- I think from this point onwards counsel was advising: it's going to be a very, very expensive and risky business for the office to go -- but that was -- what I'm trying to say -- and I hope I'm coming across very clearly -- is there was no policy from the outset that we weren't going to go against the press. Q. Are you sure about that, Mr Thomas? Counsel obeys instructions. Counsel does not set out what policy should be. Counsel doesn't know what your resources are. Isn't he there -- A. Well, he's -- Q. Isn't he there merely reflecting what he's been told in his instructions? A. Well, I don't see it that way and I don't know who could have given him that instruction. It didn't come from me. It didn't come from anything of which I had any awareness whatsoever. LORD JUSTICE LEVESON: Then it might just be wrong? A. Who might be? LORD JUSTICE LEVESON: Well, it might be wrong. A. I think, sir, the way I've read this is that he's saying, "You could go against the press, but it's going to be not favourable because of the financial aspect. It's going to, you know, cause such an impact on your resources that it would not be realistic." He could be saying that. I mean he was a counsel, I believe, who we'd used regularly. He knew what limited resources we had. So I'm only speculating now, but it seems to me he was saying, "Do you really want to go against the press when you're going to see the implications of -- when you're going to see the cost of doing so? Let's go for our main targets." MR JAY: But if all one needed to do: "Let's cherry pick the best cases of illegality. The friends and family cases, the one or two police national computer cases. We'll interview the journalists in those cases. We might interview the editors." That is a fairly narrow exercise. You can then assess how strong the case is. After all, if the evidence is strong enough, you might even get guilty pleas. Who knows? But isn't this, on any view, jumping the gun? A. Well, by whom? Q. By your office, I would suggest. A. Well, because -- no -- Q. Who put the idea in counsel's mind. A. I think -- as I read this, the thought is -- came from counsel. But I also turn up, a few days later, the telephone -- Q. Yes, this is tab , October , page . You're going to refer to item at the bottom of the page, aren't you? A. That's the one, yes, where Karen Nolan, the in-house lawyer, is discussing with Bernard Thorogood, the counsel -- shall I read it out? "Prosecution of the press. The scale of the case requires substantial manpower. Several cases and the cost will be excessive, both to investigate and to prosecute." So there is a conversation going on between the in-house lawyer and the external counsel which, again, explores the realistic prospect of being able to go against the journalists. Q. Your evidence is that the policy steer didn't come from you? A. Absolutely not. Q. Okay. A. I'm jumping ahead again, but in November, clearly when this was brought to my attention, I was of the view: "We can't leave it there. I just have to go and do something about this." That's why I wrote to his Christopher Meyer -- we'll come to that letter -- and was very concerned that we should not let the press off the hook. Q. Yes. A. What I'm really saying, I suppose, is I'm being told, it appears: "We can't go against the press", and I'm responding: "We can't let the press off the hook. We need to do something about this." And then the next two or three years followed that. Q. But there is an intervening piece of evidence, namely counsel's opinion of December -- A. No, that came some two, three weeks later. Q. Yes, but let me just look at this before we look at the PCC, because it's convenient in this stream of -- A. Well, I do just have to emphasise that that's December and I had written to Sir Christopher Meyer in November and had had two meetings with the PCC by the time of this written advice. Q. I promise you, Mr Thomas, we are going to look at -- A. I'm sure we are, but I wanted to get absolutely clear that -- it's important, I think, to see this written advice in context. Q. First of all, Mr Thomas, we can see when it was dated. Did you see the advice shortly after it was given, allowance being made for the Christmas holiday? A. I have no recollection of seeing this advice at any time until the last couple of weeks. Q. Paragraph , page . I've read this out before, so no need to read it out again. Counsel is saying that there's plenty of good evidence against the journalists, isn't he? A. Yes, indeed. I made that point. Q. Then he says, the third line into : "I understand that policy considerations [that should say] have led to their view [might be 'your view', 'the view'] that enforcement of some sort rather than prosecution is the way forward in respect of the journalists/newspapers. I understand and sympathise with that approach. This is, I believe, the first occasion upon which the scale of the problem has come to light, and it may not be unreasonable to give the Press Complaints Commission the chance to put their house in order." "Policy considerations" there lead straight back to you, don't they? LORD JUSTICE LEVESON: Or your office, to be fair. A. Thank you, chairman, because I -- can I say this very clearly: I take absolutely full responsibility for everything that happened on my watch. I was the Commissioner. Everything that happened, I take responsibility. But I have to distinguish a little bit between the Commissioner who is a corporation's soul in the language of the Act and the Commissioner, Richard Thomas, who is the individual. I'm trying to be as helpful as I can to this Inquiry by sharing with you my personal involvement in various matters. When you have a large organisation or large-ish organisation, a lot of things go on which you don't personally know about the detail. So when Mr Jay expresses some surprise, perhaps, that I hadn't seen this written advice, that's not a particular surprise to me because you delegate, you let people get on with their particular responsibility. Q. That wasn't really my point. It's from where the policy considerations -- A. Yes, well, "policy" is a loose word. Q. Can I make it explicit? We know that by the time this advice was written, you had already written to Sir Christopher Meyer, you'd had a meeting with him on November, so given that that was the policy steer you were taking -- A. But -- Q. -- by the objective facts demonstrates that the policy considerations referred to here were your policy considerations, weren't they? A. I'm obviously more involved in the situation from this point onwards, but let me say, your know, there is clear evidence that there was not a policy conclusion even at that point. My letter to Sir Christopher Meyer says the possibility of prosecuting journalists is still under consideration. His letter to the Times yesterday says that I went to him and I said that prosecutions were likely. I can't recall if that's right or not, but it's clear to me that when I saw him that the possibility of prosecuting journalists was still alive, and therefore it is not the case and certainly was not anyone's policy that we were not going toking prosecute journalists. And if you look at the papers right through into , that option, the possibility of prosecuting journalists, was very much kept alive. Q. But it's not -- A. So -- Q. It's put on ice here, if not in permafrost, isn't it, Mr Thomas? A. I think you're reading too much, frankly, into that phrase, "policy consideration". You're rather assuming that there's some sort of holy writ somewhere and this is the policy. That's not the way my organisation worked and certainly was not the case in this particular circumstance. Q. This is my last question before we break. Your concern was: "Look, if we pursue powerful people, namely media groups and journalists, it's going to cost us a lot of money. It's risky. The better course is to involve the PCC, politically or more generally, rather than go under Section ." That was your thinking, wasn't it, by this stage? A. I want to be absolutely as helpful as I can and I have to distinguish between my memory and my speculation, and I've asked myself: what was it that made me go to the Press Complaints Commission at that particular point? And my speculation -- I can't recall precisely -- is that the lawyers had reached that particular point with the external barrister. We'd had -- they'd come to brief me and say, "It looks like it's going to be extremely difficult to go against the journalists. We're going to go against the investigators." I would have said something like: "We can't leave it there. We must do something." The letter which I sent to Sir Christopher Meyer was actually -- it was drafted for me by somebody else because I've noticed there's a reference which shows it wasn't all my own handy work. So clearly a view was taken: let's see where we get with allowing the Press Complaints Commission to put their house in order. And I think I do stand by what is said in that letter -- I don't have it right in front of me now, but towards the end of that letter, it says something like: "I'm of the view that to ..." Can I just look it up? I think it's important to get those particular words. It's my exhibit RJT, I think. LORD JUSTICE LEVESON: ? A. Yes, my letter, sir, to Sir Christopher Meyer, November. The letter had been drafted for me, but it may have had some amendment. But towards the end of that letter on the second page -- do you need time to -- LORD JUSTICE LEVESON: No, I have it. A. If you read the penultimate paragraph, sir, I mean, that, I think, puts the context clear. LORD JUSTICE LEVESON: It's ? A. , yes. Shall I read it out? "I am considering whether to take action under the Data Protection Act against individual journalists and/or newspapers. My provisional conclusion, however, is that it would be appropriate first to give the Press Complaints Commission and its code committee the prior opportunity to deal with this issue in a way which will put an end to these unacceptable practices across the media as a whole. This could involve, subject to suitable safeguards, providing you with some of the evidence that our investigations have revealed. Following your review of such material, I anticipate this would lead at least to a revision of the code. The approach I have in mind would be consistent with the recommendations of the Select Committee which were addressed to our respective organisations and could provide a more satisfactory outcome than legal proceedings. I believe that approach would also be consistent with your express wish to demonstrate the PCC's effectiveness." Now, that is where I stood, being pulled into this in November -- early November . So in effect, what I'm being told is: it's going to be very, very difficult to pursue the journalists. I'm saying, "I'm not prepared to leave it there. Let's keep open the option of the journalists but let me write to the PCC. " That letter, I think, fairly records the situation as it was at that time, and I would suggest that is not consistent with a -- what you call a grand policy that we're not going to go after the journalists. MR JAY: I see that, Mr Thomas. Thank you very much. I think that might be a convenient moment. LORD JUSTICE LEVESON: Very good. We'll have five minutes. (.am) (A short break) (.am) MR JAY: Mr Thomas, certainly by the time counsel's advice was given on December , in line with the direction your office was going, there was no question, was there, of interviewing journalists for the purpose of any possible criminal prosecution? A. That seems right. Q. We learn a little bit more about your thinking from your fourth witness statement, which is under our tab , paragraphs and , which is on page . That's halfway through paragraph . Are you with me, Mr Thomas? You say: "Although I cannot recall any discussion then or later about the actual possibility of prosecuting any journalists, I think that a more general understanding developed that the office would see how the case against the investigators and public officials turned out before actively considering any further enforcement action. I was also conscious that taking action against journalists would be a major logistical, evidential and legal challenge ..." I'll come back to that. "... would almost certainly be strongly resisted and would be very expensive for an offices with very limited resources." Setting aside the cost, of course, counsel was advising on December that on the face of it, you had a good case, wasn't he? A. I wrote that statement, paragraph , before seeing the legal papers. Q. Fair enough. A. But I believe the legal papers actually endorse that. When I talk about a general understanding developing, I think the papers right through , bear out that approach, that clearly it was -- there was awareness as to what would be involved in prosecuting journalists and -- I'm not sure if you want to go onto that later but the paperwork from , I think, is entirely consistent with what I say there. Q. Yes. A. I will actually go on to paragraph of that statement, which -- Q. The question actually was: counsel was advising that on the face of it you had a good case. That's what he said, wasn't it? A. Yes, indeed, but, you know, you don't prosecute every case. We had a phrase in the office, you know, "you have to be selective to be effective", and no doubt, you know, having regard to the very limited resources, the advice was it's not wise to go ahead with this case when we can have the impact against the investigators -- and we'd hope to get a good result there -- and we can use this material to put a stop to these practices in the press by other means. I have to say -- and perhaps this is the chance to say this -- I think the steps we did take I think were -- alongside other events, were in fact effective at reducing, if not eliminating, this sort of activity, and I have to say -- and maybe this is with hindsight, but perhaps thank goodness we did not prosecute the journalists. The impact for the office would have been very, very demanding indeed. I don't know when this was or at what point this was, but probably around about , I can recall a conversation along the lines of somebody saying, "Thank God we didn't take the journalists to court. They'd have gone all the way to Strasbourg." In other words, they would have challenged any action we would have taken, we would have gone right to Strasbourg, the Court of Human Rights, Article issues coming in. We'd seen all the material being throwned at us during "What price privacy?" and the bill. When I also look at the note of counsel in , where he records that the police had investigated journalists -- I think I ought to read out that particular paragraph because I think it shows the sort of situation we would have been up against. This is document and I would like to read this out. Q. Yes. A. This is a conference with counsel. On this occasion in January , I was there for part of the meeting -- in fact, the part where this paragraph crops up. If I could read paragraph . Q. Yes? A. "BT [that's Bernard Thorogood, the outside counsel] stated that he'd asked counsel in the London case [that's the CPS prosecution, Operation Glade] how the officers in that case had approached the issue of the journalist [I think that's probably meant to be 'journalists' plural]. London counsel indicated that the journalists were interviewed and were found to be tricky, well armed and well briefed, effectively a barrel of monkeys." Now -- Q. That cuts a number of ways, doesn't it, Mr Thomas? A. It does, but that is what was being said at that time. Q. Then in paragraph , Article issues are addressed, aren't they? A. Exactly that. So I am saying that increasingly -- and I think this came much later in time -- that I was of the view: thank goodness we had not prosecuted journalists because of some of the problems that we would have encountered. Q. Even if you'd kept to the police national computer cases, the family and friends cases? Can you imagine what sort of public interest defence might have been risibly raised in that context? Family and friends? A. Well, I have to look at it from all points of view, I suppose, but I can see that the media would not like any of their journalists being prosecuted and I suspect they would, for example, argue there's a public interest in being able to ensure freedom of expression. Now, I don't believe that, I don't accept that, but I -- it's one thing as to whether or not that would be successful, but one can anticipate that that sort of point would have been raised and it would have engaged the office and bogged down the office for many years. So I do take the view that going to the Press Complaints Commission should have been the right course of action. I do take the view that going to Parliament with two reports and getting the law changed was the right course of action. I think those proved to be very effective ways of bringing home to the whole of the national press the total unacceptability of this sort of activity. And I think the fact that virtually every allegation of hacking into databases by the press pre-dates and nothing has come to light in the last three or four months appear to have happened after that time. I am not saying it's been eliminated altogether -- this is under the surface, clearly -- but I am saying -- and my successor has said this to Parliament very recently, in October of this year -- that it appears that the press are now behaving themselves in this particular area. So I'm putting that forward, sir, because I think it's important to record that prosecution is not the only way to deal with a particular problem. LORD JUSTICE LEVESON: That must be right. Paragraph , of course, reads: "RT confirmed that that was his gut instinct [namely that they would be a barrel of monkeys, presumably] and Mr Thomas confirmed that he felt that if we had seriously thought of prosecuting the media, we would face enormous difficulties." A. That's correct, sir, and so -- what I'm saying is it was not considered actively one way or the other. LORD JUSTICE LEVESON: Is that what it says? A. Yes. It was not -- that's what I'm saying, sir. It was not a conscious decision not to prosecution journalists. If you look later in the bundle, that option is still on the table, and at one point I think the counsel say, "Let's leave that for a later stage." MR JAY: But the truth, Mr Thomas, is you say in paragraph of the witness statement you were just looking at that the option of pursuing journalists subsequently was only theoretical, which of course by that stage it was. A. I'm sorry, you've lost me. Which -- Q. Your fourth witness statement. A. Oh, sorry. Q. Tab . A. Yes. Q. Paragraph . A. Yes. Q. At the very end of that paragraph you refer to "the remaining possibility, however theoretical, of prosecuting journalists". A. Yes. Q. So is that was how you were looking at it. A. Well, that's very much the case. Seeing how we got on with the main case, seeing where that led to, and then taking stock at that time. But events proved otherwise. Events turned out otherwise. In one of the papers ... yes, I think it's that same conference in January , I raised the question: are we prejudicing ourselves by delay? And counsel advised: "No, you're not. You can come back to this at a later stage." I'm sorry, this is in . This is when -- this is document . This was a note by the new in-house laywer, Phil Taylor, on a meeting with me on August and on the second page, I think this brings out why I wanted this to be a priority for him and the last paragraph reads: "RT [that's me] stated that in addition, what he wanted to be in a position to do as well as bringing proceedings would be to write to the various journalists and editors involved to highlight to them the new annex to the Press Complaints Commission code of practice, together with drawing their attention to the fact they're incredibly lucky not to have been prosecuted in this respect, but in any event, it is something that can be dealt with at a slightly later stage." Q. But that was a threat that you were, perhaps in a slightly empty way, if I may say so, delivering to the journalists. The reality is that (a) this was never seriously considered -- see the note which Lord Justice Leveson has just referred you to -- and (b) at this stage, insofar as it was a possibility at all, it was an entirely theoretical possibility. Wouldn't you agree with those propositions? A. Totally agree. Q. You would agree? A. It was a theoretical one, but it was not a dead possibility. Q. It was as dead as it could possibly be, Mr Thomas -- A. No, because we hadn't -- Q. -- both in your mind and in practical terms. A. No, we hadn't had the outcome of the case. The case didn't go to trial until , so we were keeping open the possibility, but it was not a live possibility, if I can put it that way. Q. Yes. Because in your first report, which is under our tab , RJT, paragraph ., page -- we've reached the position in chronological terms that the four prosecutions, the subject of matter of Operation Glade, had hit a rather large iceberg in the form of Blackfriars Crown Court. All four, I think, got conditional discharges. A. (Nods head) Q. That, of course, had certain consequences for Operation Motorman, and we can quite see why a policy decision was then taken to discontinue Operation Motorman in due course. Are you with me, Mr Thomas? A. Yes. Q. Then you say in .: "This was a great disappointment to the ICO, especially as it seemed to underplay the seriousness of Section offences. It also meant that it was not in the public interest to proceed with the ICO's own prosecutions." Well, we can agree with that proposition so far. "Nor could the Information Commissioner contemplate bringing prosecutions against the journalists or others to whom confidential information had been supplied." May I suggest to you that that is possibly slightly overstating the position, that the policy decision had already been taken, there was a theoretical consideration only of prosecuting journalists after that policy decision had been taken and therefore it might not be quite right to say that prosecutions against the journalists could be contemplated after April . Would you agree? A. Well, that may slightly overstate the case, in your language, but I do believe that it is entirely consistent with everything I've said to this Inquiry. I don't accept that there was a "policy decision". I don't accept that we abandoned the possibility of prosecuting the journalists. It was only after the outcome of the Blackfriars trial that not only did we have to abandon our own prosecution some two months later, but also that completely extinguished any possibility whatsoever of prosecuting journalists, and I think that although it might be slightly overstating it because I accept that it was not a very real possibility, nevertheless it was only at that point -- I'm quite clear about this -- only at that point, after the Blackfriars trial, was the possibility of going against journalists completely extinguished, and what we had been pursuing in the meantime was other means of trying to prevent this sort of unacceptable behaviour. And I do need to really emphasise this, Mr Jay, because you asked me at the beginning about the various functions of the office. Q. Yes. A. We're primarily not a prosecuting authority. That was almost on the side. One of our main functions was to promote good practice, to prevent breaches of the data protection legislation. And so increasingly, from my initial encounters with the Press Complaints Commission and right through the two or three years that followed, I was very clear in my mind that the emphasis on everything I was doing was the prevention of this sort of activity recurring any further. Q. We'll come to the other pieces of enforcement action within your -- A. This is important stuff because -- Q. Of course, of course, and I'm going -- in time, we will deal with it fully. A. It's important stuff also to point out the limitations of prosecutions. Not only had the case which we had brought taken a great deal of resource; it had resulted in conditional discharges, which led to a very perverse outcome in all these respects. So I think that does rather highlight that a criminal prosecution and a conviction is not necessarily by any means the full story. Q. The evidence you gave to the Select Committee on these matters -- that's the Culture, Media and Sport Committee, under our tab . I note that my copy does not have the URN numbers, which may be my deficiency and no one else's, but we can work from the pagination at the top right-hand side of tab . LORD JUSTICE LEVESON: Or the question numbers. MR JAY: Yes, it's question then. EV. A. Is this the Select Committee of March ? Q. It is indeed. A. Yes. Q. Question was: "I understand it's a breach of the law not just for a person who legally accesses the database. It's also a breach of the law by the person who commissioned them to do so. If there was evidence the journalists had paid these people to access databases illegally, they themselves would be breaking the law. Did you investigate that?" Then your answer is: "Yes." But did you investigate that? A. I think the "yes" there was a digesting of the question, rather than precisely answering the particular question. I think it was just a pause answer rather than: "Yes, we did investigate journalists", and I would not want to read too much into that particular single word by itself there. But I don't think I was saying, "Yes, we investigated journalists", but yes, in a more general sense, we were looking at everything that was going on. Then I went on to describe the various issues. Q. To be fair to you, that may well be right, because you say: "The offence is cast in terms of obtaining, disclosing and procuring." So because there was wrapped up in the question at least two propositions, you weren't necessarily addressing the final one, "did you investigate"? A. I think you're dissecting that exchange far more closely than it bears. Q. I'm trying to help you actually, Mr Thomas. A. Well, I'm trying to be as open, as clear and as straightforward as I possibly can be, but I don't think -- I've not thought about it before. I don't think that was a "Yes, did you investigate that". In the general sense, we investigating everything but did we specifically go and interview journalists? The answer is no, but that isn't really what they were getting at. Q. Lower down, level with the lower holepunch: "We had hard documentary evidence of what they had done ..." That of course, the "they", the pronoun, is the investigators? A. Yes. Q. "... and indeed that led to a guilty finding. We were going to wait ..." Did it, though? A. I'm sorry? Q. Did it? Your Operation Motorman was discontinued against the investigators, wasn't it? A. No, but the guilty finding was the guilty finding against Whittamore at Blackfriars Crown Court. Q. Yes, but not in relation to any data protection issue? A. Yes, it was. The conviction was for Section at Blackfriars Crown Court. Q. I thought that the conviction on April was for corruption? A. No, no, no, no, no. He pleaded not guilty and it was perfectly clear now there was some sort of plea bargaining. He pleaded guilty to Section . Q. I'll look at that an appropriate time. It certainly wasn't my understanding, but it may be that my understanding is incorrect. Then you carry on: "We were going to wait and see what the outcome of that case had been before taking any further action." And then, lower down the page, you describe what the nature of the information was and you say, four lines down, I would suggest correctly: "So there was what I might call hard prima facie evidence." Do you see that? LORD JUSTICE LEVESON: Three lines above the bottom of the page. A. Yes, indeed, I have it, yes. That's right. MR JAY: That's probably a correct characterisation of what the evidence amounted to. A. That's -- Q. In the sense, of course -- A. That's exactly as I did and do see it, hard prima facie evidence. When we come on to discuss the content of our reports, I will say that the reports contained hard prima facie evidence of offences. Q. Yes, and then you say: "But equally, to bring a prosecution for the offence of procuring is never going to be easy. I would not disguise that from anybody. In that particular case, we were unable to proceed [I think it should say] with any further legal action." That, of course, is after the events of April . The next question from the chairman: "Could I press you on that? Because you're suggesting to us that you did have evidence which might well have been of sufficient quality to enable a prosecution but you did not proceed because you were advised it might be against the public interest. Why should it be against the public interest? "Because it would be, essentially, a waste of time and effort for my organisation but also if we were to go to the courts, it would be back to the magistrates' court and bring prosecutions. We would have to decide which of the journalists to prosecute. Should we go for the whole lot or sum? And the strong advice from our counsel was that we should not and could not proceed with such prosecutions. It would be attracting severe criticism within the court system if we were to go any further." To be clear, Mr Thomas, you're looking there at the public interest decision after April , not before, aren't you? A. That -- what I'm talking about there is the advice we received on May -- Q. Correct. A. -- where there was a conference with counsel as documented here -- Q. We can take it very shortly -- A. I have a clear memory of that. That's why when I was talking to the Select Committee, that's exactly what I was referring to. Q. Because by the time there were any conditional discharges against the four investigators in relation to Operation Glade, someone could very reasonably take the judgment there's no point pursuing the data protection matters against private investigators, given what the likely sentences were going to be. That was the gist of counsel's advice, wasn't it? A. Well, absolutely. Exactly that. Q. Yes. A. And you'll see -- this is document . That's the very full note of the conference with counsel, and the advice was that we had to drop any further cases and I was very concerned about that advice. I was questioning and challenging it. If you read the full note, you'll see see that I was very reluctant to be told that will we could not go any further with this case. I questioned and challenged it in various ways. But at the end of the day, it says on page : "RT stated he felt he had to swallow hard and accept the advice he was being given by counsel in this matter." So that was the point at which we were being told that we could not pursue our prosecutions any further because the public interest so demanded. LORD JUSTICE LEVESON: Did you know that the judge at Blackfriars had asked where the journalists were? A. I only knew that about a month ago, sir, when I saw the transcript of the trial. I didn't know at the time. MR JAY: We have the transcript at RJT. This is one that, because there may be journalist names mentioned, probably is not going to be put up on any screen. So underneath our tab . Of course, the core participants have seen the full document. The judge did ask a question about the journalists. LORD JUSTICE LEVESON: It's not actually a transcript, is it? It's a file note prepared by your office, I think. A. That's -- the in-house lawyer, Phil Taylor, appears to have written this note up, yes. MR JAY: He was told that a number of journalists were interviewed. This is at . But that was in the context, at least at that stage, of an indictment which was concerned with a corruption conspiracy, wasn't it? Because we know the indictment was late amended, as you've reminded me. The reason -- A. I'm not very familiar with what happened there. Q. No. A. All I know is that conspiracy charges were brought. My understanding was that they also included data protection matters. Q. Yes. A. That the case did not proceed vis-a-vis the conspiracy and ended up with the convictions for the data protection offences. I also understand that there was a feeling that the prosecutor had not accurately conveyed some of the material to the court vis-a-vis the journalististic aspect, and I can't turn it up straight away now, but some of the notes you've had from the ICO's legal file indicated that the barrister for the CPS had not perhaps conveyed the full picture. We'd sort of -- if you like, were not actively engaged or involved in that. Q. The original conspiracy at the time out in the indictment was a conspiracy in relation to corruption matters, but what happened appears on the internal numbering of this file note, page , which may or may not have reached your bundle, because it only came to light, I think, on Monday. Has it been added? LORD JUSTICE LEVESON: It has. MR JAY: It may not had been added to everyone's, but it's clear from what's said in the middle of the page that two of the men pleaded guilty to the indictment as originally constituted, which was not for data protection, but then quite late, on April , the Crown amended the indictment to include two offences under the Data Protection Act. Whittamore and Boyall both pleaded guilty. So it did involve in part data protection but in the main it was outside data protection, it was police corruption. Do you follow me? A. I do, but of course the whole case arose out of the circumstances. I mean, here we had private detectives paying money to people inside the DVLA, inside British Telecom, inside the police, to get the information. So my understanding, I think, remains the case that this was a far more serious matter than a breach of Section . That's why the Crown Prosecution Service took it over and prosecuted in that way. Q. Yes, but -- A. Then the prosecution appears to have gone wrong in some way. There are suggestions in the later papers that there had not been adequate disclosure by the CPS and the CPS were reluctant to let the case go all the way to full trial, and so some sort of deal seems to have been done, leading to the -- Q. Do you have person knowledge of this or is this speculation? A. No, I don't at all. Q. Some would say, well, if you're turning a bit off-piste and making criticisms of others -- A. I'm just recording what's in the paperwork. Q. Okay. We do know that by the time you were forced with making the unpalatable decision to discontinue the Operation Motorman prosecutions, of course at that point the only parties to the relevant conspiracy were the private investigators. They were not the journalists, were they? A. That's correct. Q. Can I move off that topic to another topic, which is the quality of the evidence you had. It's possible that I can take this quite shortly, given your correct characterisation before the Select Committee of the evidence amounting to a hard prima facie case or hard prima facie evidence, but of course, the strength of the evidence will fluctuate a bit, depending on whether you're looking at friends and family and PNC on the one hand, and area searches on the other. Would you accept that as a general statement? A. Yes. I think I was also talking to the Select Committee in fairly general terms. Q. I'm not suggesting that you were doing otherwise. Can I ask you, please, to look at exhibit RJT, which is under our tab , where you are giving more information. If you can just attain your bearings, Mr Thomas, in relation to evidence you gave or material you gave in answer to a Freedom of Information Act request. You cover that in your second witness statement. If you look at page , which is the second page of this letter -- do you have that? A. Not yet. ? Q. Please. A. Mm-hm. Q. At the bottom of the second page, you say: "There were ,transactions recorded in the source material ... of these, ,are identified as transactions that were (of a type) actively investigated in the Motorman enquiry and are positively known to constitute a breach of the DPA." Can we be clear about that? What type of transactions are you referring to there? Or are you not able to say? By "type", I mean are you referring to ex-directory searches, aggregating those with a number of other type of transactions to arrive at ,? Or can you not assist us further? A. Well, first of all, this was not my letter. This was written by -- this was the draft -- the office has not found a copy of the actual letter. This was a draft which has been found of a letter written by Philip Taylor. Q. Yes. A. And bear in mind, please, that he was the solicitor who was involved in all the -- well, the middle and late stages of the prosecution. He was the solicitor who attended the Blackfriars trial, for example, and he was dealing with counsel right through and . Q. Yes. A. And he was heavily involved in the preparation of the two reports from my office. It was the first report which documented the nature and the extent of this illegal trade in personal confidential information, and he was the -- he drafted the first, if not the second and third drafts of that report, which led to the statement that there were journalists implicated in the material which had been found. That led to the freedom of information request which was received probably in about September, October of . Q. It did. A. And this is his draft reply to the FOI requester. So he's the one who made the judgment there, which fed into both our reports, that of the source material examined, some ,transactions, he characterised some ,-- ,-- as transactions of a type which were positively known to constitute a breach of the Act. Now, you might be asking me: how did he form that judgment? I can't say for sure. I have speculated in my witness statement, but I think it would be a similar sort of material as that which did lead to the convictions, and material which could not have got into the hands of anybody except by way of asking questions. Put it that way. Q. Yes. A. We're going to come on and talk about, for example, ex-directory numbers, but we're talking also in this situation about friends and family details, criminal record details, details of convictions and ex-directory numbers, all of which at least raise questions about how they got into the hands of the investigator. Q. The language used here is "positively known to constitute a breach", so it's putting it quite high -- A. It's putting it quite high. You asked me earlier was something slightly overstated and this might perhaps be slightly overstated. I mean, yes, he's a lawyer, but I don't think he's saying that this is absolutely guaranteed, as it were, to result in a conviction. We're not in a court of law in writing these letters, but he was of the view that this was -- this would have been sufficient to amount in a conviction. Q. If you aggregate all the PNC requests and the friends and family requests amongst the ,, an exercise which I haven't done apart from impressionistically, you only get to a number in the hundreds. You don't get to the thousands. There are only relatively few of those. In order to get to ,, you are presumably including the ex-directory requests -- A. I've not done the airthmetic either, Mr Jay, but my impression, from looking at these papers, is that they must have included the ex-directory material, too. Q. If you look at the next page, , where you're looking at the slightly less evidentially potent category, the ,, they're described as occupant searches, which represent transactions that are thought to have been information obtained from telephone service providers and are likely breaches of the DPA. However, the nature of these is not fully understand and it's for this reason that they are considered to be probable illicit transactions." It might be said by those representing the media organisations that, again, that's an overstatement, isn't it? A. Well, I can't answers that in detail. I can only, like you, speculate. But what appears to have happened is that the investigators -- this was a new team of investigators, by this time, who had come on the scene to look at this material, they and the inhouse lawyers classified the material into three broad headings. Q. Yes. A. What appeared to be definite, what appeared to be probable and that which is outside altogether. Now, I'm not saying that every single case would have stood up in a court of law and resulted in a conviction, and therefore for both those first two classifications there may have been, to use your language, a slight overstatement. But I think for the purposes of writing our report, to draw attention to what the evidence appeared to show, to draw the attention of the media, government, Parliament, everyone else, to what was going on, I think that was sufficient. Q. To be fair again, there's a distinction -- A. Sorry, one further point. Not being said here these were offences committed by journalists. This was clearly focused primarily on offences committed by the private investigators. Q. That was my next question -- A. Sorry. Q. -- which you've read my mind and answered, so I don't need to ask it. A. If you look at the language of both reports, it is very clear on that. We are not saying -- and I think some of the media organisations perhaps have read too much into the report -- we're not saying that each and every one of these was an offence committed by a journalist. What we were saying in our report is that journalists were significant customers of information which appeared to have been obtained illegally. Q. Is that what you were saying there in the second report? My exhibit is not marked. It's under tab . It may well be exhibit . The page I want to look at is page . I think it is exhibit , isn't it, Mr Thomas? A. Yes, I think so. The second of our reports? Q. Yes. A. Yes. Which page are you on? Q. I'm on the internal numbering page . A. Page . Q. But . A. Yes. Q. This is when you're introducing the table. You got to the journalists -- A. Yes. Q. And you say, two paragraphs from the bottom: "Having considered the matter further, the Information Commission has decided that a further disclosure is in the public interest and in the context of a special report to Parliament is consistent with the discharge of his functions under the Data Protection Act . The following table shows the publications identified from documentation seized during the Operation Motorman investigation, how many transactions each publication was positively identified as being involved in and how many of their journalists (or clients acting on their behalf) were using these services." So you're saying there that you're drawing a distinction. The positive identification relates to the transactions and to the private investigators, and the journalists are simply those who are using these services; is that correct? A. Yes. That documents that large numbers of journalists were buying large amounts of information from investigators who, in our view, can only have obtained that information by breaching Section , some of whom had been convicted of sample cases, some year or months earlier. Q. Mm. A. We are not saying that the journalists in every case committed an offence. We are suggesting, I think, that it is likely they may have been committing an offence but we've explored this fairly fully this morning already. There was not a trial, so we cannot say with certainty that anyone committed any offence. But we are saying that they were driving the market. We are saying they were customers for information which appeared to have been obtained illegally and for which there had been conviction. Q. You're certainly saying in the last paragraph on this page that the only defence you can see as a possible defence is the public interest or similar issues. A. Well -- Q. Aren't you? A. I'm not particularising that to whom might have been the defendants. Whittamore did not raise public interest defences. He pleaded guilty. If there had been any prosecutions of journalists, it's quite possible they would have raised a public interest defence. There may have been other defences. They may have said it wasn't knowing or reckless, which is part of the offence itself. So we're not saying here that the journalists were committing offences. They may have been, they may not have within. One would have to look at each particular case. Q. Yes, but then on the table itself on the next page, you are linking various publications with number of transactions positively identified and then the number of journalists. So you are perhaps giving the impression that these newspapers have committed offences, aren't you? A. I wouldn't go as far as that. We're moving in that direction, shall we say, but we're not categorically saying that journalists have committed offences. LORD JUSTICE LEVESON: Could I just ask you about that, please? I understand the definition of the offence in Section () of the Act, but if a private detective is asked to get friends' and families' numbers which are covered by the Act, how could that not be knowingly or recklessly at the behest of the person who asked him to get that information? A. I think that's a very good question, sir, and I'm not disagreeing with that. I think that's why I'm saying it is, to my mind, highly likely that would have been an offence, and so we are coming close to suggesting that there were offences, at least in some cases, but we were not going to be writing down here -- nor am I saying today -- that every single one of these was an offence by a journalist. It was very, very likely indeed to be an offence by the private investigator, and to my mind -- and I think to your mind too, from my understanding of what you were saying -- it looked very much though as though it would have been an offence by the journalist. But we were conscious we had not prosecuted, we had to abandon the prosecutions we had in train, we hadn't got the hard evidence that, if you like, there was a conviction, so we had to use our words quite carefully. We are suggesting -- Mr Jay put it to me that we were implying. We were coming close to that and I stand by that but I am not able to say categorically, because only a criminal court can say that, that they were guilty of the offence. LORD JUSTICE LEVESON: I understand that. A. And that there may have been an offence in each particular case. LORD JUSTICE LEVESON: Can you think of one? A. Not offhand, no. Well, let's take the example we're talking about, family and friends. It depends where the evidence comes from, but if it's in the hands of a journalist that he has got from Mr Whittamore a list of someone's family and friends, I find that quite outrageouses in policy terms. I find it highly, highly indicative in legal terms that that must have involved a breach of Section at some stage, certainly by the investigator, almost certainly by the journalist. MR JAY: But if -- A. And likewise for criminal records. Q. But everybody knows that family and friend numbers can only be obtained by getting a copy of the bill or someone at British Telecom telling you what's on the bill. A. That is exactly what was our very, very strong hypothesis, and I think this is, you know, what so outraged me, that this was going on and led to such a light sanction when it finally got to trial, that I felt there was no option whatsoever but to bring it to much wider public attention, despite the difficulties in doing that. That led to the first report, "What price privacy?", being written. Bear in mind it's not just the press, if I may say so. That's a very important point. We were targeting the entire market and there were other customers, as the report makes very clear. I know the focus of this Inquiry is on the press, but we were not looking at it in terms of: "Let's expose what the press are up to". It's: "Let's expose this whole market", and there were a lot of people and at the end of the day, it really sort of boiled down to any citizen in this country is at risk of having highly personal information obtained by others against their will, and we -- sort of we published the tariff, we published the training manuals. We documented that for to , virtually anybody in this court today, the owner of a car parked outside their house could be tracked down. An ex-directory phone number, it would cost between and . was the cost of getting anyone's call records, the cost of getting criminal records. And I found that absolutely -- Q. I was going you all this, because you're moving ahead now. A. Well, I'm running ahead but I wanted to get this point very, very firmly. Q. What I'd like you to do, if you look at paragraph .of your first report under tab . This is our exhibit RJT, page . I said in opening this case I was going to ask you questions on ., and you're giving us the answers. Just so that we can tether those answers to your report and see the context -- are you with me, Mr Thomas? A. No, I've lost you. Which page are you on, I'm sorry? Q. , paragraph .of your first report. A. Sorry, I'm on the second report. Q. These are rather strong points you make. A. Yes. Q. And they're probably very well substantiated. Just so that we follow the line of your evidence, you say here: "This was not just an isolated business operating occasionally outside the law, but one dedicated to its systematic and highly lucrative flouting. Nor could its customers --" Well, in our context, those are the journalists; is that right? A. Yes, although we are writing this also aware that banks, insurance companies, law firms -- Q. In our context. A. In your context, I understand, but I'm explaining the report itself. There's a market. Q. (overspeaking): "Some of the information obtained, such as PNC checks, ex-directory telephone numbers and details of frequently dialled numbers cannot normally be obtained by such businesses by lawful means." Pausing there, possibly you've understated it, Mr Thomas. PNC and frequently dialled numbers -- these are the family and friends -- cannot be obtain by other than unlawful means. Ex-directory numbers, you may be right, cannot normally be obtained by lawful means. Would you agree with that? A. Absolutely. Q. "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 raise 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)." So if you give us the prices again, maybe you'll be able to illustrate that point for us, Mr Thomas. A. I looked at that sentence a lot and I just wonder whether there's a mistake there. I think the word probably should have read "too high" in the penultimate line. I can't fully understand that sentence now. I think it reads more clearly if you read it as: "The price was too high for information obtained lawfully or it was high enough to indicate criminal activity." It was certainly not a well-crafted sentence. I recognise that. Q. I'm not sure that's right. A. Well, I don't know. I can't make sense of the sentence as currently drafted. Q. I think what you're saying is that if you're only paying .for an occupancy check, that's an extremely low price. If you're going to use foot-slogging means, it would be more expensive and the lowness of the price therefore is an indicator of illegality. So I think -- A. You can read it several ways. I don't want to put too much weight on that one sentence but it's not a very happily crafted sentence. Q. Well, I think it probably was quite happily crafted but again, my opinion is quite irrelevant. What about "or high enough to indicate criminal activity"? You've given us snippets of that, for -- was that the PNC check? A. Well, if you look at paragraph ., that's where the full table is set out. This table was taken from the Motorman materials. Q. Yes, you're right. A. And the paragraph opens that, and what we did there was to tabulate the price which was recorded as being paid by the customer to the blagger, and then the price charged to the customer. Q. Yes. A. And we -- I'm not sure if it's on the screen, but -- Q. Page . LORD LEVESON: We've got it. It's there. A. And -- I mean, the examples I was giving earlier are the ones which I shared with the Select Committee just to illustrate the range of prices. It wasn't a fixed price for everything. MR JAY: No. A. But it was clear that, you know, there was a price to be obtained -- the price to be paid for obtaining registration ownership details of any car, ex-directory phone numbers, call records, criminal records and so on. Some were quite low figures, some were quite high figures, perhaps, as you're suggesting, reflecting the difficulty of obtaining the different sorts of information. Q. We've been through the different categories with Mr Owens and sort of degrees of proof of illegality, and I don't think it's necessary to do that again with you, Mr Thomas. But thank you for reminding us of this table, because it's a very convenient setting out of the relevant prices. You also considered in your second witness statement the quantities of money involved here, the payments made by the newspaper organisations. This is at our tab , I think. Your second statement, paragraph , page . A. This was my attempt to make sense of the letter which had been sent to the FOI requester where some figures had been tabulated, and what I am suggesting in paragraph , which is on the screen now, is that taking the lower estimate for all the newspapers, the ones which were, in your language, probable but not positive, was ,, but a maximum of ,. Q. Yes. A. So that's the range. We're not saying each and every one was a criminal offence, but that's the range of the prices paid for the information as documented in the papers seized during the Whittamore raids. Q. Thank you. That gives us an idea of the lucrative nature of the business. We're not, of course, looking at the exhibit because it names journalists and therefore has been -- A. I see. Q. -- as it were, removed from any publicly available document, but I should refer, as I did on Monday, to RJT, when you make a correction in relation to the Sunday Times, don't you? A. Yes. Do you want me to talk through that now? Q. I think the Sunday Times would probably like you to, so if we could just deal with it quite briefly. It's under our tab -- A. At this stage, I'll say that as a result of a letter from the Sunday Times we went back to the figures about a month after this was published and we found one error, and we corrected that. We wrote to Parliament, we laid it before Parliament. We wrote to all recipients, and I wrote a letter to the managing editor of the Sunday Times with an unreserved apology. What we had done, we had taken from the same notebook the data for the News of the World, the Sunday Times and the Times, and due to an inputting error, some had been misattributed. They should have been News of the World and they were put onto the Sunday Times, and we modified that in the amended table. Q. So the table -- A. I'm not sure whether the table you have is the new or the old table. Q. It's the old. The table now for the Sunday Times should read only four cases but the News of the World figure increases to . Let's just check whether the version we have reflects those revised figures. Yes, it does. These are the revised figures, with your correction. A. Yes. I have the reprinted version of the report, which has the correct figures. Q. Thank you. Before I move off this topic onto another topic, which is going to the PCC, can I just ask you a question which arises out of your fifth witness statement, which is under our tab A. It's paragraph . I'm afraid I don't have the URN number because the version I have printed off is -- LORD JUSTICE LEVESON: You want this paragraph up? MR JAY: Paragraph , yes. LORD JUSTICE LEVESON: Yes, it's . MR JAY: Thank you. Here you're dealing with some evidence, Mr Thomas, from the Daily Mail. Are you with me? A. Yes. Q. You say in paragraph : "Ms Hartley asserts the conclusion that the transactions are likely to reflect enquiries that did not involve illegal activity. This appears to have been justified largely by reference to the claim that the great majority of cases consisted of addresses and telephone numbers." Then you say: "However, this is not a conclusion that can be drawn." And then you say: "Addresses and telephone numbers obtained, for example, from telephone companies remain (using the language of Section ) personal data obtained from a data controller without consent, even where that information might be obtained legally by other means." Just looking at that, if we are concerned with the mens rea of this Section offence, could it not be said that if the information could be obtained legally by other means and the journalist doesn't, in fact, know the means that the private investigator is going to use, well, then it's at least arguable that there isn't knowledge or recklessness for the purposes of Section ? A. That is correct. I think the point I should make, though, is that the figures in the tabulations were not attributing the offences to the journalists. They were saying that the investigators had committed the offence. And I think both Associated Newspapers and News International have rather read too much into this -- we'll come onto this later -- by saying that we were saying in every case there would have been an offence committed by a journalist. But the numbers here were the offences primarily committed by the investigators, and given what we know about the modus operandi of Steven Whittamore, I think I would stand by the claim that addresses obtained, for example, from DVLA or from British Telecom would have been obtained by illegal means. He certainly would have had the knowledge for the recklessness. In court, I think he pleaded guilty using the reckless line, but there we are. Q. Then you say, second bullet point: "For most people, a mobile or ex-directory phone number is not in the public domain and is treated as a confidential matter." Well, that certainly is true, but if the issue here is the offence in relation to obtaining a mobile or ex-directory phone number, of course usually you would have to do that by either going to the relevant phone company, in which case certainly an offence is being committed, or by looking at a list which someone else has compiled of such numbers, in which case offences may well have been committed because that list itself is derived from an illegal source. Would you agree with that? A. Well, I suspect we may come back to this with News International, because they put evidence in recently saying that there is a database of some million ex-directory phone numbers. It's the first I'd heard of this, but nevertheless that's what their evidence says and it says that the numbers have been obtained legally. I've no idea what that means. I am somewhat doubtful. But I'm not totally quarrelling with the idea that ex-directory phone numbers might possibly be obtained by legal means. million is a huge number, for a start -- Q. Mr Thomas, I'm asking you to think about it in these terms. A. I -- Q. One way you can get an ex-directory number is to plough through old editions of directories and try and find the individual when that individual had a published directory number. That is a possibility and that would be lawful? A. Yes. Q. But that may or may not be particularly plausible. Another way is that these million numbers have all been obtained or most of them obtained illegally by someone who has deployed the same blagging methods which Mr Whittamore has deployed. A. But there are -- Q. Do you accept that? A. No, because there are other explanations. I'm just not sure it's ex-directory numbers. I suspect it refers to mobile phone numbers. Now, on many, many occasions, when you go onto a website these days, buried away in the small print, without you knowing it, you are consenting to your phone number being passed on to somebody else. So that's one explanation. I deplore that, I campaigned long and hard to get much clearer notices to the general public, but undoubtedly there are organisations out there now who are using the small print -- for example, on websites -- to obtain phone numbers and to be tabulating those. That has become much more prevalent in the last four or five years. It wasn't so prevalent at the time we're talking about, but nevertheless it is, regretfully, a great deal easier these days, primarily through modern technology, to obtain more and more personal information about people. So I can't -- I'm being honest with you, Mr Jay. I cannot say categorically that an ex-directory number must have been obtained illegally, but in going back to this case, given what we know about Mr Whittamore and his methods, knowing he had corrupt sources inside the telephone companies, I think it's highly likely that ex-directory numbers were obtained illegally, and when you look at the price list, you don't start paying the -- I'll just check the ex-directory price. As a customer, you're charged between and . You don't pay that sort of money if you can get it entirely legally. Q. That's the point you make very accurately in paragraph .of your first report. You're saying: let's apply some common sense here, let's look at how much you're paying for this information. I'm not sure that one can sensibly disagree too strongly with that. Your third category in the bullet point on paragraph , where you're dealing with the reverse tracking category, Mr Thomas: "Addresses obtained ... from a phone number or car registration where the address is held by the telephone company or by DVLA have necessarily been obtained illegally." I think that may well be right. A. I hope it is right. I mean, it seems to me that -- I think some of the media people were saying if it was only an address, it's only a phone number, what's wrong with that? This is common domain. But that misses the point entirely. If you got the address from a corrupt source inside DVLA or you got the address by working back from the phone number, reverse tracking or conversion, whatever you like to call it, it seems to me that can only have been obtained illegally. Q. Given the mastery that you're displaying of this material and the inferences to be drawn from it, someone might say, well, if you had some of the editors in from the worst offenders towards the top of the list and you or your team asked them questions on this and their journalists, you might have got some rather interesting answers, which would have enabled you to consider, on a better evidence base, whether or not to prosecute. Don't you think -- A. Well, my mastery, as you put it -- thank you, but my mastery has come in the last four or five years. I only got heavily involved in this when we published our report in . I have become even more familiar over the last two or three months, with the build-up to evidence to this Inquiry. I can now see the picture perhaps a great deal more clearly. Your question suggests that we should have done more with the individual newspapers. We'll come on, maybe this afternoon now, to talk about what I did with the Press Complaints Commission, with the newspaper proprietor's association, with the newspaper society, with the Society of Editors, so I dealt with them all collectively. No, I did not go to each individually, but it seemed to make sense to me to go to them collectively and get them to put their house in order, and although I'm not claiming total success, I think we had quite significant success in doing that. And this was at a time -- you're taking me right back, of course, to -- when Rebekah Wade and Andrew Coulson had been to the Select Committee denying that this sort of thing was going on, and that's quoted in our report. Q. Yes, I've been asked to put to you this question before I go to the PCC, as it were. Did you ask newspapers or editors to comment on the table which we see in the second report, "What price privacy now?" to comment on the table in draft before it was published? A. No, it we didn't. Q. After it was published, apart from the Sunday Times, did anybody seriously question your findings? A. Not at all, and more generally, in the many, many conversations I had after the two reports were published, nobody questioned the general thrust of our report. No one asked to see the breakdown of the figures. No one asked -- no one said, "You've got it all wrong, you're barking up the wrong tree." And I said this in my first statement, the overwhelming impression I had from everyone I saw was: "You've found people out. You've brought to the surface that which people either knew or had a broad awareness was going on." Q. So that we clearly understand this, without naming individual editors, did you have discussions about these matters with individual editors? A. I don't think I've ever had a conversation to this day with an editor. LORD JUSTICE LEVESON: Did you go to the code committee at all? A. Oh yes. LORD JUSTICE LEVESON: But the code committee consists of editors. A. Well, the people I met there were Les Hinton and Paul Dacre, and I think they are proprietors rather than editors. LORD JUSTICE LEVESON: I don't think so. Mr Dacre might be pleased to be the proprietor of Associated Newspapers, but I don't think he is. A. Sorry, in that case, I met Paul Dacre, but only after the report -- yes, you're right, he calls himself editor-in-chief, doesn't he, of Daily Mail -- MR JAY: Well, he is the editor of -- A. Yes. I'm reflecting back on his notepaper, trying to recall what he said on his notepaper. So I have to apologise here and now to Mr Dacre. MR JAY: Moving forward, Mr Thomas, to the post-prandial evidence -- we'll see what exactly happened with Mr Dacre and others, but we can start with the PCC now before lunch. You introduced this in paragraph of your first witness statement. Under our tab , it's page . A. Sorry, I missed which paragraph. Q. Paragraph . You deal with this towards the end of your witness statement, but I feel that we should bring it in now. A. Yes. Q. It kicks off with a letter you write on November , and this was, in terms of the advice notes we've seen, between the attendance note of October , which we saw in the legal advice file, and counsel's formal advice of December. The letter itself is RJTunder our tab , page . I'll paraphrase it. He's just been appointed as its chairman of the PCC. You congratulate him, you ask for an early meeting. You refer to Section . You refer to the ongoing investigation. You say at the bottom of this first page you anticipate prosecuting a number of individuals in due course. The top of the next page: "At the moment, I am waiting while the police investigate serious offences relating to corruption." Then, three lines down on the second page: "It's clear from the very considerable volume of material that our investigations have collected that journalists from most national newspapers and many periodicals are significant customers." And then this is the bit you've read out: "I am considering whether to take action under the DPA against individual journalists and/or newspapers." And that's something you wished to stress earlier. That was really a threat, though, wasn't it, Mr Thomas, to Sir Christopher and a threat which I would suggest you weren't really going to exercise by then, were you? A. I certainly didn't see it as a threat. It was meant to be a constructive and friendly opening in my engagement with the Press Complaints Commission. Q. There's no reason why you shouldn't have made the threat. A. Well, I wasn't threatening. I was simply putting him in the picture. So I certainly wouldn't characterise that sentence as a threat. It may have been somewhat overstating the case, and I think, you know, we've established that this morning. Q. Okay. A. But nevertheless I've stressed here because I did want to demonstrate to you that the possibility of prosecuting journalists was still very much live. Q. I think we've been over that one, but in terms of what happened next, there was a meeting on -- LORD JUSTICE LEVESON: Are you moving from the letter? Because there's one question I would like to ask about the letter. MR JAY: Please. LORD JUSTICE LEVESON: Could you go back to , please, Mr Thomas. It's the fourth paragraph: "You'll doubtless also be aware that I submitted a memorandum setting out the extent to which my role touched upon matters covered by the committee's enquiries. In addition, I had an informed meeting with the committee. I was at pains to make clear that though I do not wish to usurp your role as the regulator of the press ..." My question is: what are you relying on as concluding that the Press Complaints Commission was a regulator? You're a regulator, but you've concluded here that they're a regulator, or asserted that they're a regulator. I'm just interested to investigate your understanding of that. A. I'm glad you raised that because I think it goes, in many ways, fundamentally to the heart of some of the issues you're going to be dealing with. LORD JUSTICE LEVESON: That's why I raised it. A. They call themselves -- called themselves a self-regulatory body. They have said for many, many years and still say that it is really important to have self-regulation of the press rather than statutory regulation. We're familiar with those arguments. At that time, when I wrote this letter, in all my dealings with the PCC I certainly saw them as a regulator. But I have to say that my view now is that they are much more a complaint handler, and I draw a distinction between complaint-handling schemes and regulators. And regulators tend to be intelligence-driven, proactive, mainly focused on either prevention or punishment; complaint handlers are investigating complaints. I suppose I have reached the view, chairman, that that letter reflected my thinking at the time, I'd understood them to be a regulator, but perhaps we were at cross purposes. I had dealt a lot in my previous career with the Advertising Standards Authority, and I had regarded that as a model of good good self-regulation. I had been the architect of the banking and insurance ombudsmen schemes, which were self-regulatory and the governance arrangements there were modelled upon the Advertising Standards Authority, and I had in my mind associated the Press Complaints Commission with the same sort of approach as the Advertising Standards Authority: able to intervene and take action to prevent unacceptable behaviour. And that was my expectation when I had gone to see Sir Christopher Meyer. I think over time I was somewhat disappointed. Although I don't decry everything they did, it fell short of what I'd hoped they might be doing. So using that sentence in that letter, "your role as a regulator", that was my perception, somebody of some experience in these matters, that they were holding themselves out as a regulator of the press, and I think in fact they were more of a complaint handler. LORD JUSTICE LEVESON: Was that perception ever the subject of discussion or in any sense was the role of the PCC more fully described so that you could correct your perception? A. I certainly had three or four meetings with Sir Christopher Meyer and we've probably touched on some of these matters. My meeting with Les Hinton of News International when he was then the chairman of the Editors' Committee -- although I don't think he's an editor, by the way, that's why I perhaps was confused -- but in that conversation I can recall saying, you know, "Why can't you transform and change the Press Complaints Commission to make it look more like the effective self-regulation models I've encountered elsewhere?" My last paragraph of my statement, I'm happy to elaborate on some of that now or later. MR JAY: At the end, Mr Thomas. LORD JUSTICE LEVESON: Doubtless we'll come it, but while we were looking at the letter, I just -- A. No, I think that's absolutely fair, and I did see them and they held themselves out as a regulator and I think experience showed that they were not a regulator in the conventional sense. MR JAY: The purpose of going to them, as was clearly from counsel's advice, was to permit them to get their house in order, is that -- A. That is a very fair summary of exactly what I and everyone else hoped they would do, and to some extent it was successful. I think they could have done more. But we thought, you know, the focus really was on stopping this market, how can we stop this sort of unacceptable activity carrying on? And they are supposed to be in charge of the press, they ought to know what's going on. We're constrained to some extent because the prosecutions are still under way, I can't share too much information with them, quite apart from the section problems, which we'll come onto later, but I felt I could go and tell them as much as I could about what was going on and see what their reaction was going to be. Q. There was a meeting set up for November. In order to prepare for that meeting, you compiled a speaking note, which is RJTunder our tab , . I'm not sure that any specific points arise out of the note, save that you appear to have had at your fingertips then the nature and the quality of the evidence under the fourth bullet point, "The resultless of our investigations"? A. By this time I was much more focused on -- this was -- I think probably I prepared this note myself, from what I've been told. I don't think this was drafted for me, this was my own note, and clearly by that time I wanted to have the information to share with the PCC about the nature and the scale of this. The bottom two bullet points are, you know: what could we expect from the PCC? Can we have a general condemnation? Will this lead to change in the code of practice? Then the meeting took place -- Q. RJT. A. Sorry? Q. It's at RJT. Your notes of the meeting. A. Well, yes. That's my handwritten note of the meeting. What I have not tracked down, nor has my former office, is the official note of the meeting. There was an email from me to my colleagues, including -- Q. But this will do, Mr Thomas, because this is a note you were taking at the time -- A. Yes, indeed. Q. -- so it's probably the best -- A. Fine. LORD JUSTICE LEVESON: We will want to go to the email, though, because it's actually quite instructive. MR JAY: Can we identify all the evidence which bears on the meeting? A. Yes. Q. We have the note, am I right in saying you took this at the time, at RJT? A. Yes. Q. And then there's the email which followed it. Is it RJT? A. Yes. Q. Our tab ? A. Which was written presumably shortly after the meeting; is that right? A. Well, that evening (overspeaking) at o'clock, . that evening. MR JAY: Noting the time, may I go through these materials after lunch? LORD JUSTICE LEVESON: Certainly, yes. o'clock. (The short adjournment) Transcript-of-Morning-Hearing-9-December-2011.txt
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-9-December-2011.txt LORD JUSTICE LEVESON: Yes, Mr Jay. MR JAY: Thank you. Mr Thomas, before we look at RJT, may I ask you this general question: did your office consider contacting any of the targets or victims of those in Mr Whittamore's books? A. My understanding is that about or were approached, primarily with a view to giving evidence about the circumstances where their personal data had been obtained, and I recall that I think most of these were what you might call celebrities, but not all. Some were private individuals in private life. I don't know if you want to name names -- Q. No. A. -- but two or three of the names still stay in my mind. I was told that they'd been visited and that witness statements had been obtained, and indeed some of those later, three years later, came forward when we produced our reports to give their story as to how they had been targeted. But what we did not do, which I think is implied in your question, is go to all victims. Can I say this: first of all, there were obviously a large number. It's only now saying this with hindsight -- there was no discussion, but you have to be very, very careful when you approach victims. If -- to give you an example, if a letter had gone from my office saying, "Dear Mr so-and-so, we think you've been targeted by a private investigator", if his wife or his family saw that letter, that could have raised all sorts of questions. We were an office which was very, very concerned with personal privacy, and so if I'm being asked about that, I would say if you are going to approach victims, you have to do so very carefully indeed. Q. Okay. May I ask you, please, now about RJT, which is your contemporaneous note. At the start, it says: "Good relationship. Confidential meeting. "'Independent' and mean it. From newspapers and politicians." A. "From". Q. "From newspapers and politicians." A. You have to understand this is my hastily written handwritten note during the meeting. Q. Of course. A. But I can recognise my own handwriting. I can't always recognise exactly what I was trying to say or who said the various things. LORD JUSTICE LEVESON: But who was independent? MR JAY: Yes. A. I think we were both very proud of independence, I'm sure, but -- I would have stressed, and always do, our independence, but I suspect Christopher Meyer was also saying that he felt independent, but I can't be sure to whom that word is attributed. Q. Okay. A. Probably to him, because it says "from newspapers and politicians". Q. Fair enough. I won't deal with the contempt part and the Attorney General: "Can't undermine obligation to obey law." Is that right? A. Yes. Q. And then in inverted commas: "Not our role to enforce law, not arm of ICO." That must be Sir Christopher speaking; is that right? A. Yes, I'm sure it was. Q. He's making the point there that he's not really a regulator, isn't he? A. He's not a prosecutor to enforce the criminal law, but this was a point that came out then, I think, and certainly came out in subsequent conversations with the code committee, the PCC and others, and the line -- and it's even now in their evidence to this Inquiry. The line is: "We can't deal with these matters because they're covered by the criminal law", and I just did not buy that line. If you look at the code of -- the Editors' Code, there are various parts of that which overlap with the law, describe legal requirements and other terms. The section on the code which deals with subterfuge, some of that addresses matters which would be illegal under the Regulation of Investigatory Powers Act. Some of that financial information would be illegal under the Financial Services and Markets Act. So certainly then on many occasions I challenged this line: "We can't deal with these matters because they're covered by the law already." There's more than one way to skin the cat. Q. But was Sir Christopher telling you, rightly or wrongly, the PCC is not going to enforce the law because this is part of the criminal law, which it is the ICO's responsibility to enforce? Is that what he's trying to -- A. Well, lower down the page, if you see RT, my note: "Not expecting PCC to investigate or take action against journalists." So I was quite clear, that wasn't the reason I was there to see him. I was there because I wanted the practices put to a halt for the future. That was my objective. I wasn't asking him to investigate. This was evidence which he might have used in general terms to condemn what was going on, but I did not expect, and nor did he expect, that we were going to hand over the case and let him somehow take action against those journalists implicated in the Motorman affair. Q. Absolutely. Can we see what he was offering to do, if anything? You have a little box around the next bit: "Code can't deal with unidentified victims." And that feeds into a point you make later on. Is he saying to you there, or did you understand him to be saying to you: "This is outside the code because, as we, the PCC, don't know who the victims are, we can't even begin to take any steps under the code"? A. Let me just pause for a moment. It was a meeting that does stick in my mind. At the meeting, I was there with Phil Jones, who was one of the assistant commissioners, and he was there with Guy Black, who was then, I think, the director of the PCC, and I've never had a meeting where the atmosphere changed so rapidly halfway through the meeting. The first half of the meeting, I think they just didn't quite know why we were there, didn't really see very much seriousness, but the whole -- as we started just in general terms to tell about the nature and the scale of the activities, going back to that speaking note -- Q. Yes. A. -- which you asked me about before lunch, and I shared some of that with him -- I've never seen a meeting where the whole the atmosphere changed so fast and they took us very seriously in the second half of the meeting, so much so that they asked us to go back in again about ten days later for a second meeting. So I just want to get that point across, you know, and this perhaps is reflected a bit in my handwritten notes when he talks about not being surprised but maybe surprised at the scale of the activity, it being a watershed, the scale of the problem, endemic, and that I hope is reflected in the short email which I sent soon after that meeting back to the office. Q. Yes, and you stopped at "knowledge of proprietors". What did you take that to mean? A. I don't know. Sorry, yes, I could have gone onto that. I don't know whether he or me or anyone was saying the proprietors know about it or didn't know about it. I can't help you on that. That's simply my note and I don't recall one way or the other what that note meant, but I think those are the two possible interpretations: either the proprietors knew all about it, or they had no knowledge of it. I simply don't know. I'm not suggesting either way what that note means. Q. Then it says, does it: "Constructive -- 'fellow regulators'." A. Yes, that was the atmosphere certainly in the second half of the meeting, that we had to work together to tackle this problem. Q. Is that the term he used there? It's in inverted commas? A. Somebody used that phrase, me or him, I don't know. I think it's reflected in my email. Q. We'll come to the email? A. Well -- Q. Tab , RJT. A. No, it's -- yes, there is -- that phrase does appear in the emails. Perhaps we'll come onto that, but I actually said: "But they seemed to be increasingly ready, as the meeting progressed, to work with us as 'fellow regulators' with a strategic response." Q. You made it clear that you weren't expecting them to take action against journalists. You were looking for willingness to adopt a general solution which had two limbs: condemnation and general censure; is that right? A. Yes. Q. And code amendment? A. And that entirely reflects the speaking note which I took along with me to the meeting. Q. At the end: "Maybe problems. Dialogue over details. Constructive spirit." But in the result, the code amendment didn't take place until , did it? A. You are jumping ahead. Do you want to go through the story sequentially or ...? Q. We will, but just so that we -- A. There was no code amendment, as I understand it, until least . I think there -- some detailed changes were made. Q. Did you ever get the condemnation and general censure out of the PCC in your view? A. Not in the terms I was hoping. I wanted loud, strident condemnation. It goes back to the point which the chairman asked me about: are they regulators or what are they? And I certainly expected -- from my experience, a regulator is someone who tries to put a stop to bad practice, to unacceptable practice, and I had hoped that at the very least, they would be very loud and noisy in saying, "This is absolutely unacceptable." What we got was a speech from his Christopher Meyer, and that is exhibited. He did mention it in his speech, and I think there's some indication from the correspondence -- there were some exchanges on it, but it was nothing like the -- and I said this to him on several occasions directly and it's recorded -- there was not the sort of loud condemnation that I had originally expected. Q. Yes. A. Having said that, something did have an effect upon the media, as far as I can see. Q. The email says at RJT, , in the main paragraph: "This might lead to some sort of general condemnation, although there are some difficulties in amendment to the code." So your expectations weren't that high, were they? A. Well, you're reading into every email a sort of precise legal interpretation and this was, you know, done at o'clock that evening from my home, I expect. I was fairly optimistic because the meeting -- the atmosphere had changed in the second half and he had said, "Come back and see me again in a couple of weeks' time." Q. Yes. A. So he wasn't giving commitments, no, and I think that language, you know, might lead to it, what I was looking for, but I couldn't say to anybody that we had secured a firm commitment on those lines. Q. The second meeting was on December, I think; is that correct? A. Yes, and there I don't think anyone's been able to find any notes of that meeting at all, I'm afraid. Q. No. A. I don't have the same vivid memory of the first meeting, but certainly the very general terms was that, you know: "Yes, you've raised an issue. We need to look at this. You know, we need to look at it." I'm not saying they were committing themselves to any particular course of action. Q. No, nothing much happens then for a whole year. If we go to RJT-- A. No, I think quite a lot -- wait a minute. Yes -- Q. PCC -- A. In the first half of , Phil Jones, who I mentioned, and his team were exchanging emails with the PCC and were trying to draft this guidance note and we had high hopes that, you know, that would produce something worthwhile, and that seemed to sort of grind to a halt in April of and I only have the documentary material on that. I can't speak personally to that. But I came back on the scene vis-a-vis the PCC in December. I'd had lunch with Christopher Meyer. At that lunch, I discovered that the guidance note had not progressed and that his language, I think, was "run into the sand", and we revived it -- Q. Just look at the document. There is reference to the -- A. Yes. It's RJT. Q. Yes. . A. Yes. Q. December : "I was, however, extremely concerned to hear that the advice note that Tim had drafted on Data Protection Act, journalism and the PCC code had run into the sand. You explained that media lawyers had thought the advice had oversimplified the position. I'm very disappointed to hear this." Then the next paragraph: "My concern is that unless the attention of journalists and editors is drawn to the real possibility of committing criminal offences under the Act, there's a real risk that the all too widespread practice of paying to obtain confidential information about people in the public eye will continue unabated." So we'd reached the position where one practical proposal had run into the sand and the PCC had done nothing. That's true, isn't it? A. Well, that's putting it very sharply. Clearly both sides, my team and their team, were trying to put together a guidance note, but it hadn't materialised by the end of . Q. But a whole year had elapsed. These were potentially very serious matters. The PCC hadn't given the general censure or condemnation which you indicated was at least a possibility and -- well, looking to the other side of the coin, it was pretty clear to you that they weren't going to help you much. Isn't that true? A. Again, that's putting it too strongly. I didn't lose all faith. The evidence shows that I went back a number of times to the PCC throughout , and , and tried to keep -- engage their interest with it. But it is true to say that I thought their response was less strident and I think I used the word "disappointing" more than once in this context. I thought they could and should have done more. Q. Thank you. Sir Christopher -- A. Although he kept saying to me: "What more should we do?" Q. Sir Christopher writes to you on December, under tab , RJT. LORD JUSTICE LEVESON: Hang on, that's before this letter, is it? MR JAY: The following week. LORD JUSTICE LEVESON: No, this is December. MR JAY: Yes, and then tab is -- did I say the th? I meant the th. LORD JUSTICE LEVESON: Yes, because before we leave December, you again repeat the fact that you've perceive the PCC as a regulator: "As you know, I am strongly of the view that the PCC and the principles of self-regulation will be shown in a poor light." A. Yes, absolutely. LORD JUSTICE LEVESON: Yes. A. And I see from the correspondence they've tabled that they took it quite seriously and said to the various media organisations: "Look, he's getting aggressive here", if I can paraphrase. LORD JUSTICE LEVESON: December you wanted, Mr Jay? MR JAY: Yes. LORD JUSTICE LEVESON: ? MR JAY: . Says: "I've asked Tim to resurrect the guidance note and to consult Phil Jones and to take final comments from the industry before putting the draft to the commission for approval in February. If goes without saying the Commission cannot condone criminal behaviour and if the note raises awarenesses about what journalists must do to comply with the Act, then that will be most welcome." Did anything further happen? There are no documents which indicate whether they did or not. A. I think that particular guidance note did surface, I think -- I have to go back and check the records, but I believe that the note was made public by the PCC probably in the spring of and I think it was substantially in the shape that we had agreed to. It was a useful guidance note but I suppose I was a little concerned that it buried the Section warnings into a wider context of talking about the Data Protection Act and its application of the media more generally, and I think even now I would say that it was a shame it didn't just focus on Section in the way that our own note, which we produced, I think, in or , what we call a good practice note, that was a very, very clear one and a half pager as to how the press should take seriously Section . And I had hoped, because I thought it would have greater authority, that something like that would have come from the PCC at some stage. Q. What we do see happening at RJT, if I can take this reasonably economically -- A. Yes. Q. -- is you send Sir Christopher, quite rightly, a copy of your report on May , and you explain to him -- A. He was one of about a hundred people at that stage. Q. Of course. A. It was more a standard letter. Q. His reply, though, under our tab , RJT -- A. Yes. Q. We can draw our own inferences from this: "Thank you for sending me a copy of your report." This is page . "It was an interesting read. I'm sending you a copy of our annual report which we've just published, along with the text of a speech I gave last night in which I refer to your remarks about the PCC. I think that as a next step it would be helpful if we organised a meeting so that we can explore what more it is that you think the PCC can do. You will appreciate that your call for us to act came rather out of the blue. We have no material to work with other than what you put into the public domain in your report." What did you think of that at the time, Mr Thomas? Speaking frankly, as I'm sure you will? A. I can't tell you what I thought at the time. I can tell you what I think now, which is probably the same as I thought at the time. Q. What's that? A. I thought "interesting read" was a fairly strong understatement. I thought we put a lot of work in getting that report put together. I had shared material with him beforehand. The report was not directed just at the press, but nevertheless it was fairly emphatic in its content and its style. We were proud of that report. It was a very special report, the first time ever we'd gone to Parliament, and I felt that to describe it merely as "an interesting read" was a considerable understatement. I'm probably guilty of the same offence myself now. And I think to say it "came out of the blue" was surprising because we had had the two meetings with him and we had collaborated at official level to try and get a guidance note together, and I think also that is perhaps also an indication of the line coming back all the time: "What do you want us to do? Tell us exactly what to do." My line was: "Well, you are the self-regulators. You're the ones who are supposed to be working out what is needed to stop the press getting into unacceptable territory. It's not my job to tell you what your job it." I had some ideas and I had some thoughts and I was not slow to share some of those, but I was a little surprised by the letter. But my style was always to try and keep on the right side of people and to carry on that constructive dialogue, so I didn't write back and say, "What a dreadful letter." Q. You were doing the best with someone who really was making it clear he wasn't going to help much. A. Well, he gave me his speech and at the end of his speech, there's two paragraphs. The speech was on May, only about two weeks after our report had come out, and he mentioned it and I can't quarrel with the wording that's in the speech. Who was there for the speech? I mean, how many people? Was it publicised? Was it really got out to far more people? For all I know, behind the scenes Christopher Meyer was ringing up every editor, every proprietor and saying, "Come on, guys, you really have to change all this together", and maybe he was, but there wasn't much visibility in terms of the PCC condemning the activity. Q. Of course -- A. Having said that again, things did get better from that point onwards. Q. By this stage, the issue was stale to this extent: that the underlying material in Mr Whittamore's books went back to , much earlier, so the tempo had really been lost, to some extent, hadn't it? A. Sorry, what had been lost? Q. The tempo. We were three years after -- A. I don't think so, no, because we were bringing -- or the CPS were bringing the main prosecution. We were waiting for the outcome of that. That wasn't until . Then we got the very clear advice from our counsel that it would not be in the public interest for us to pursue the matter any further. We're now into the autumn of and my timeline, which is attached to my first witness statement, indicates I attended at least two, maybe three meetings and that led to the first steps being taken to produce the report. Q. Yes, okay. A. And the report was drafted primarily in-house. It then went outhouse for a skilled writer to improve this presentation of the report, and we published that in May. Q. Okay. A. So I don't say -- I don't accept at all the tempo slowed down. There wasn't that much direct contact with the PCC, but we were frankly outraged and very disappointed at the result of the case and I was very clearly focused on: "We can't let people get away with this." LORD JUSTICE LEVESON: It's interesting, if one looks at the speech that Sir Christopher gave -- and in case we don't come back to this particular speech, it's page . At page : "Here I return to a familiar theme of the PCC. We make an enormous effort to preach the gospel of self-regulation around the UK." Then at : "It's in the industry's own best interests to bolster self-regulation in this way." And then finally, : "As I look forward --" This is discussing with you and your concerns about the practice of offering money for confidential information. "I look forward to discussions with Mr Thomas about what more he thinks the PCC can do about this within the self-regulatory framework." So if you believed they were regulators, at least you had some support for that view. A. Yes, indeed, and if I could just, chairman, point out the last sentence of that paragraph: "But clearly it would not be viable simply to duplicate the criminal law in the code of practice." That was the line I was getting all the time: "We can't deal with this because it's part of the criminal law." And I have to repeat, I just did not if buy that because not only -- Q. We understand, Mr Thomas -- A. It's actually an important point because I dealt a lot with the Advertising Standards Authority. A lot of their code covered matters which would be illegal under the Trade Descriptions Act. Q. We've got that point and you're per cent right -- A. Thank you, but I just need to put that into this wider context. Thank you. Q. I just want to move this on a little bit, aware as I am of what the agenda is for the rest of the afternoon. RJT, Mr Thomas. There was a meeting on July . It's under our tab , . A. Yes, this followed the publication of our first report. Q. You see, under "Key issues", a third of the way down: "PCC's response." And then: "Respective roles and responsibilities of the PCC and the Code of Practice Committee of Editors." Specifics. You set out the background of the report, in particular the intention to target the middlemen involved in the illegal trade in confidential information, while at the same time reducing the demand by raising awareness of the illegal nature of the trade amongst customers, including the press. So that's a neat summary of your overall strategy, isn't it? A. Yes. Q. You express some disappointment that the PCC had not been more forthright in its condemnation of the activity. Am I right in saying that there had been no forthright condemnation of the activity by the PCC at all, from what we've seen in that speech, arguably? A. That speech -- I don't personally have any knowledge, but perhaps that's a question for the PCC. Q. What Sir Christopher says: "... explained the PCC stance has consistently been that reporters must stay within the law and that he makes this point regularly on public platforms but the PCC is not able to act as a general regulator [see that?]. He believes that what is needed is a strong stance from the ICO, including prosecutions. He queried what more the PCC could do." So he's telling you yet again he's not going to do anything. Isn't that true? A. It comes close to the truth, but I don't know what was in his mind. Q. At the bottom of the page he explained: "The PCC website is focused at individuals, not at journalists, which is consistent with their role, which is not that of general regulator." Then you refer in the next bullet point to some guidance on Section offences. At the bottom of the page: "... if the Code of Practice Committee of Editors is to be engaged by the ICO and the PCC to discuss the possibility of changes to the code and production of guidance." So the upshot of -- A. Can I just interject there? Q. Yes, please do. A. Because my annotation for this Inquiry has got on the side here "fobbed off to committee", and frankly, that's how it felt, that we'd been told we'd come to the wrong place. If you want the code changed, you have to go to the committee of editors. I understand the distinction between the committee and the PCC, that the PCC is the public face of these arrangements, but basically he was telling me we'd come to the wrong place. "If you want the code changed, go and see the committee of editors", and that's why my subsequent letter of July, RJT, to Ian Beales -- who I had never heard of before, but he was the secretary of the committee, tucked away in Gloucestershire. I had to write to him there, and as I say, it did feel somewhat that they weren't willing to take this matter on within the PCC, so we had to go and deal with the Code Committee directly, which we did. Q. An important part of the general policy considerations which you refer to, in, I think, counsel's advice of December , "Let the PCC get its house in order" -- you may or may not have known ex-ante what might have happened, but looking back on it, nothing much did happen with the PCC, did it? A. Two points. Yet again, I need to come back to this word "policy". It was not an ideological strategic policy; it was a matter of practicality. This was where the office was going to go at that time. We thought and had some hopes that the PCC would be a better way of addressing the problem than anything to do with suing the prosecutions, which we were, at that time, recognising was going to be very expensive and demanding for the office. Now, with hindsight, I think I would have been more aggressive and more assertive with the PCC and with the Code at the outset, and they did disappoint me, as I said, in terms of their response. But nevertheless, I do recognise that, through whatever means, it appears to be the case that the message was getting out, and certainly the correspondence I've seen more recently from the PCC does have some indication that they were exchanging messages with the various players in the media industry, the various associations and societies, saying, "Basically, Thomas isn't going away. He's making a noise on this thing. We have to do something." And they quoted the sentence from my letter which you haven't quoted, which was along the lines that if you don't take this more seriously, it's going to put self-regulation in a very poor light. Q. We've covered one limb of strategy, if I can describe it in that way, which you pursued. The other limb, of course, is the deployment of Section (), which I'm going to come to in a moment. A. Mm-hm. Q. Can I ask you about your mainstream powers which I touched on at the outset: powers under Section to issue enforcement notices, Section , I think, assessment notices, and then your general duty under Section . Why didn't you consider the use of all or any of those mainstream powers against either the journalists or the data controllers, which of course were the companies who owned the media groups? A. Well, I think we were using our powers to promote good practice. That was a far more general power, and you know, that was the justification, the rationale -- the statutory foundation for much of what we did was promoting good practice. I would describe pretty well everything we did in this area as promoting good practice. On your question why didn't we use our formal Section enforcement powers, I can't recall any active discussion or any active consideration of that, but I would now say first of all we didn't serve that many Section notices, probably only two or three in a year, and they were normally preceded by -- we're under the constraints of the better regulation agenda. We had to serve a draft of a notice before we entered the actual notice as a matter of good regulation. Secondly, I suppose I would say now -- but I can't say if any of this surfaced at the time -- everybody knew that to a very large extent the powers of the office were very constrained indeed when it came to dealing with the media. Thirdly, I would say that obviously some consideration was given to this because in the notes that came out last week, there was a meeting in May -- May -- Francis Aldhouse, Phil Taylor and Janet Watowsky(?), who were the two lawyers -- and I think that was a meeting where there was something about possibility taking enforcement proceedings. It says here: "FGBA mooted enforcement proceedings." So clearly some sort of passing thought was given to it but nothing materialised. Q. In terms of your general duty under Section to promote the following of good practice by data controllers, you didn't issue any guidance of any sort until after ; isn't that right? A. Well, we're producing guidance all the time but -- Q. Relevant to this? A. On this, I think our good practice note -- I think it might even have been , but it was certainly after the two reports had been published, so yes, it would have been . Q. So in terms of your core general duty, nothing specific is done until -- A. No, no, no, not at all. I totally resist that. Q. In relation to journalists -- A. Well, because we were publishing these two reports, and that is absolutely -- not only is it specifically discharging the power, the possibility of presenting a report to Parliament, but also I very much saw it in terms of promoting good practice. I mean, we didn't sit down there every day and say, "How exactly are we going to interpret this section of the Act?" but I would say very strongly indeed that by publishing a report which set out in pretty well full chapter and verse what a wide range of people are doing -- not just the press but all the other players plus this illegal market of private investigators and tracing agents, drawing attention to that, condemning it in the loudest possible terms and getting as much publicity as we could -- and that wasn't easy. We got a fair amount in the end. I would say that was promoting good practice, and sending it to a hundred organisations with specific personalised letters saying, "This is not acceptable." So I'm sorry to -- Q. No, no, fair point. A. -- challenge you so strongly on that, but I would say this is very much promoting good practice. Q. So part of the reason for exercising the specific, perhaps exceptional power under Section () is in discharge, you say, of your general powers and duties under Section (); is that right? A. I'm saying that you take -- they're both part of the same section. They're both part of this general responsibility of the Commissioner to promote good practice and to make sure everyone understands their responsibilities. Q. I'm right in saying, though, in answer to my question about Section , is this right, that only passing consideration was given to that mainstream enforcement power? A. That does appear to be the case, yes. Q. Can I ask you about your purpose in publishing these two reports? You've explained one of the purposes and that's fully understood. Was it also part of your purpose to try and initiate a political debate as to whether the penalties under Section for contraventions of Section should be increased? A. I think I had quite a long list of objectives by the end of the day, by the time we got to publishing this report. The first objective was to tell the world what was going on. The primary stated objective was to get the recommendations taken seriously, particularly to get the government to increase the penalty, because we felt the penalty was the main problem. But I also felt -- and I'm not sure this was articulated, but in my own mind -- the more noise we could make about this, even if not successful in getting the law changed, the more that was likely to have a beneficial result. I wanted to get people on the back foot. And in terms of all the other organisations, all the other sectors where this activity was going on, as our second report documented, it was taken seriously. I mean, a lot of people were going around -- I almost say in a blind panic, saying, "We have to clean up our act on this." And we had some very, very encouraging letters back from the Law Society, from the Office of Fair Trading, from the Financial Services Authority. We wrote to a lot of people. We took this very seriously indeed. I wanted as much noise, as much action taken as a response to this report, and to that extent I think it was quite successful. But then there was what you call a political campaign -- I'm not sure "campaign" is the right word, but a political objective to get the law changed because it wasn't just Motorman; it was all the other cases that had gone on for years before. They were documented in our report in annex A of the report. We set out there a large number of cases where we had prosecuted and we had only very low levels of fine and clearly this sort of low potential to impose significant sanctions was not having the deterrent effect which I thought good criminal law should have. Q. The steps that you took to raise awareness at least in the first instance are covered in paragraph of your first statement, are they not, in ? A. Um ... Q. Where you capture the steps that you took. A. That's a summary there, yes. It's not everything but that highlights the overall strategy and gives some examples, some of which are documented, as to the sort of things I and the office as a whole were doing. Q. Yes. A. And, you know, just the fact that we got four select committees I think is actually without precedent. Culture, media, sport, March. Health, March. Justice, December. Home affairs, December. To get four select committees taking evidence from you about this problem, I felt that was a significant and welcome success. And all supported us. All condemned this sort of activity. Q. And were supporting your plea for raising the criminal -- A. Oh, very much so. You'll see from that paragraph I had also gone -- I'd, you know, raised this at my regular meetings with Lord Falconer. He was very supportive. He said, "We're right behind you. Disgraceful." Again, that comes from my handwritten notes of that meeting. We discussed it regularly with the civil servants at the DCA. I met the Director of Public Prosecutions in person before the report came out and I wanted to get his support for the line I was pursuing. I'd met the chief executive of the NHS electronic records project in the news this week, but that was the largest civil IT project in the world. I got his support. He saw the risks. I went to the Sargasso -- no, it might have been his predecessor but the meeting of all the Permanent Secretaries from across Whitehall -- I went to their meeting in February and I covered it in many speeches and I've given some examples in my evidence of some of the speeches where I, if you like, rammed home this message. But just to go back to your point, it was partly promoting good practice and it was partly to try and get the law changed. Q. In terms of getting the law changed, you pick this up at paragraph of your first statement, . You point out that a DCA consultation paper was issued as early as July , which I think is RJTunder our tab . A. I regarded this as a major break through. It's -- the department was not always known for its speediness, but to get a consultation paper published three months after our report came out was extremely welcome, and the government at that time declared a very clear measure of support for the line we were taking and recognised that the remedy did lie in increasing the sanctions. Q. Largely for reasons of deterrence, I think. A. Absolutely. I've made no secret to this Inquiry and elsewhere that I was primarily concerned with preventing bad behaviour and the law plays its part in having suitable deterrence. I've said many times -- and I repeat it now -- it was never my wish and not my wish to send any journalist to prison. That's not in any way the agenda. I wanted right across the market and the courts to take this seriously in order to deter this sort of activity. Q. What happened thereafter we can pick up at paragraph of your statement, and in annex B to it, that the bill initially moved very swiftly and smoothly through the House of Commons without any controversy but then, by early , the press were mobilised against it. Is that a fair way of putting it? A. Well, you've jumped ahead a year. Q. I have, yes. A. The consultation paper was July . The bill was introduced into Parliament in the autumn of and got a second reading -- this is the criminal justice and immigration bill. Q. Yes. A. And it went pretty plain sailing to start with. Q. Yes. A. It went through the House of Commons. There was a brief exchange at the committee stage of the House of Commons but no vote. It went to the House of Lords and at that point, and -- Q. I'm just trying trying to take this quickly, Mr Thomas. I'm making a point that it all moves swiftly and smoothly until the press mobilise against it in the early part of . Is that, broadly speaking, correct? A. Yes, I say -- you know, I was aware from January onwards that a powerful campaign was being generated against this particular clause, and I was invited to a number of meetings and the nature and the extent of that campaign over the next three or four months became very, very clear to me. Q. Yes, and it's even clearer from annex B, isn't it, in your statement -- A. Yes. Q. -- under our tab , where you give a clear and helpful timeline to the events of the winter, really, of . A. I worked this up during the preparation of my statement, going back to my diaries, because I had electronic diaries at this stage and the notes I had and the materials I was able to look at at the office in August to help this Inquiry, and I've pieced together this timeline and I'm not sure if you're looking at it now but I mean, I recorded there how there was a meeting -- and I think some people in this room were at that same meeting -- when I, you know, sat down with the junior minister, Maria Eagle, and both sides put their case and then, if I just take the story up in the February -- Q. Just summarise it until we get to March . Just take us through it as quick as you can. A. I had a telephone call from Jack Straw, saying that he might have to pull the clause out of the bill altogether, and the reason given was that he needed to make space for a provision because of the impending prison officers' strike, and I recall registering strong dismay at such a prospect and either saying or implying that the real reason was media pressure. I then had a meeting with Jack Straw in the House of Commons on February and we discussed this matter and I came away believing that the clause was still hanging in the balance but likely to remain. I had a further call, March , telling me it was going to be withdrawn altogether. I'd been in Hong Kong the previous week. I'd come back and on March , the this call came through saying, "We're going to have is to withdraw the clause, but we will reintroduce it at some later stage", and I recall making a very forceful protest and I wrote to him on March. Q. You did, and that's RJTunder our tab , . You very strongly register your protest, don't you? A. Well, I've said many times I -- a Commissioner has to be independent and seen to be independent, and one doesn't write that sort of letter lightly. But I did feel that it was my duty to put on the record my strong feelings about the matter and my letter of March started by expressing my deep disappointment. And the letter's on the record. Q. Yes. Then there was a meeting with the Prime Minister at RJT, under our tab , . A. Yes. The following day I was in London and I got a call that morning saying could I meet the Prime Minister, Gordon Brown, that afternoon. I was able to do so, went to Downing Street and met the Prime Minister, and again you'll see -- I think RJTis the email which I sent back to the office immediately afterwards recording the main thrust of that conversation. Q. Five lines down, the print is quite small: "The PM started by saying that I had the most difficult job in the country. I said that mine was a long way behind his." Exactly. "He observed that he had long supported freedom of information, referring ..." And I paraphrase, "to what he said a long time ago". The next paragraph: "He was very concerned about data losses but thought the matter needed to be kept in perspective. Risk averse ministers and officials should not let the pendulum swing too far the other way. But he fully accepted that a culture of data protection had not been taken sufficiently seriously and welcomed ICO support for Gus O'Donnell's data handling review." A. Can I interject there that this was about three, four months after the great government data losses. HMRC had lost million child benefit records. The MoD, Department of Transport, many departments had suffered some really serious data losses, and that had been a total preoccupation for the media, for government, for me. In that period before Christmas, everyone was extremely concerned the government had been careless with large amounts of data which had got into the wrong hands, and -- Q. Well, he makes that clear in the last sentence. A. Indeed, and the Gus O'Donnell review -- I mean, this was -- he asked the cabinet secretary to review what needed to be done, and we -- and I -- the office and myself played quite a large part in feeding into that review to try and improve governmental data handling. Q. Can we move to the middle of the page: "On the Section and the criminal justice and immigration bill, he understood entirely the need for stronger sanctions. He considered that the trade in personal information is entirely unacceptable and suggested he had himself been a victim in the past. I draw attention to some of the highlights in "What price privacy?", demonstrating the diverse nature and extent of the market. I may have invoked the point that many others beside tabloid journalists were involved and the media cases were largely of the tittle-tattle variety. The Prime Minister accepted that a strong sentence is needed to deter all those involved. This is especially important after recent data losses. I made it clear that this is a to be priority for ICO. I'm not prepared to give up. At the same time, he is concerned to strike the right balance with protecting freedom of expression, especially in relation to legitimate investigative journalism. Now that some time has been brought, he wants a compromise position to be achieved to minimise media concerns." The compromise was that -- we see at the bottom of the page -- an enlarged reasonable belief public interest defence and the publication of a prosecution policy from you; is that right? A. No, I think you're jumping ahead a bit there. Q. Okay. A. What he basically said was unless we can get a compromise here, the clause is going to be dropped. He said to me: "I want you to go away and work with everybody else to see whether a compromise could be established." Q. Yes. A. And those two points at the bottom of the page were simply that conversation with him -- and Gus O'Donnell was in the room at the same time -- beginning to speculate what a compromise might look like. I was offering up -- by this time, the enlarged defence was on the table that had been discussed and I think -- we'll come back to it, I'm sure, but I saw that as part of the compromise and I had raised that and mentioned that to the Prime Minister. And secondly, I said that I was perfectly happy to produce a statement of prosecution policy and that would, I hoped, alleviate any concern on the part of the press and maybe other people. So this was not the deal. That took the next four, five weeks or so to put together. This was me speculating with him the sorts of areas which a compromise might cover. Q. But he was making it clear to you that you were not going to get what you wanted in full-blown form, namely without any further amendment, the increase in the penalty to two years' imprisonment, but unless you came to some sort of deal you weren't going to get anything? A. Yes, and -- I'm sure you'll come onto this. The letter I wrote a day or so later to the Prime Minister recorded that, but essentially the message was: unless a compromise can be found, then this clause is coming out of the bill. Indeed, if you look at the parliamentary debates for that day in the evening in the House of Lords, the government minister gave exactly the same message to the House of Lords. This is in suspense at the moment, but unless the interested parties can find a deal, can reach a compromise, then this clause is going to have to be dropped. I was very -- well, I'd expressed my concern the previous couple of days to the Lord Chancellor, the so Secretary of State, and I repeated it to the Prime Minister, and I felt very strongly indeed that it would be very damaging to all concerned if this clause were to be withdrawn altogether. I think in my statement -- perhaps we'll come on to talk about the detail, the compromise, but to roll forward a bit, at the end of the day there was a compromise -- Q. Yes, before we get to the compromise, your letter to the Prime Minister was March . It's RJT, under our tab . A. Yes. Well, that, I think, you know, in more formal language, repeats what I've been saying just now. And the conclusion -- the penultimate paragraph, if I can read that: "I must conclude, however, by repeating this is a pernicious and largely hidden illegal market. It is highly damaging to individuals, to organisations and to society. Although I recognise the need for balance, withdrawal of the clause now would have very negative sequences. Although you assured me the clause would be reintroduced, I do not believe there will ever be a better legislative opportunity." And that was my letter to him on the record to just capture points we had been discussing. Q. Aside from the Whittamore haul, which dates back to , as you know, have there been any other similar hauls or smaller hauls your office knew about? A. Oh, absolutely. If you look at "What price privacy now?", the second report, there are, I think, three or four examples of prosecutions which we were bringing forward, which we said -- you know, things had moved on a bit. Page , page , case , case , private investigator case , accepted a caution. Case , the case of Anthony Clifford and that was a case that Joshua Rozenberg covered for the Telegraph, which we saw a record of. And case , the Andersons. This was a couple who were -- they eventually pleaded guilty to cases of blagging techniques. So there were cases going on and indeed, you mentioned earlier the Select Committee which I attended in and there were some good examples, if you like, of this sort of activity still going on. Q. Can we be clear, Mr Thomas. This sort of activity, does it relate to media organisations or journalists? A. No, I'm talking about the illegal market. I have to keep saying this. Our concern was wider, much wider than just journalists. And the cases which I was going to read out -- I don't have them to hand straight away, but one -- there in the evidence to the Select Committee. One, as our investigators visited some premises, the fax machine burst into life and said, "Please find out if this lady's got cancer." Another case at the same sort of time, a message sent to the receptionist of a -- sorry, a message sent to an investigator to go look at an abortion clinic to find out whether a named person had been in for an abortion. Now, I don't know who the customer was for that. I'm not saying it was the press. It could have been anybody, but somebody had instructed a private investigator to find out about a named individual, whether they had actually received an abortion at that particular clinic. So this sort of activity was still going on right through -- that was , and perhaps we'll come later to what my successor told the justice committee just two months ago. LORD JUSTICE LEVESON: Just remind me of the dates in relation to Mr Mulcaire, could you? MR JAY: He was arrested August , pleaded guilty, I think, November and then sentenced whenever it was in January . A. Yes. Q. So we understand the context, because we have to see the bigger picture, your campaign, if that's the right way of describing it, in relation to increasing the penalty for Section , was not targeted specifically at journalists; it was looking widely to all the customers who were the procurers, as it were, of this confidential information. Is that correct? A. That's a point I've been wishing to get across to this Inquiry very clearly. Q. Absolutely. A. Yes. Q. But the campaign against you, if that's the right way of putting it, was largely led by media organisations -- A. I'd go further -- Q. Just let me finish the question -- enlisting, where appropriate or otherwise, the support of politicians and government -- A. As far as I'm aware, the media organisations were the only ones organising the efforts against the clause. I didn't have any indication at all that the legal profession or the financial services industry or the investigators themselves or anybody else was standing up and campaigning against the clause in the bill. So it was -- and I think I had some direct evidence of that when I was at meetings but certainly indirect when I was told about what was going on. The compromise being hammered out was -- involved me in three meetings in quick succession -- Q. Can we just look at that, please, Mr Thomas. In your witness statement, annex B, the second bullet point on the second page, . You tell us that between March and April, you attended three meetings with Sir Suma Chakrabarti to explore the scope for a compromise: "I understood that Paul Dacre, chairman of the Editors' Code Committee, was attending alternate meetings but we did not meet face to face at the time. At the last meeting, I was told that it had been decided to keep the clause but make two changes ... [first] the custodial sentence would require consultation and a ministerial order before being activated, and secondly, the public interest defence will be modified into a subjective or reasonable belief test." LORD JUSTICE LEVESON: But that's purely subjective, is it? It's objective as well. A. Yes, I think that's a fair comment, chairman. It is more subjective but there is obviously clearly still an important element of objectivity. LORD JUSTICE LEVESON: It's got to be reasonable. A. Yes. MR JAY: You sent an email, for example, RJT under our tab , , dated March . A. Yes. This followed the second of the meetings. Q. Yes. You make the point in the first paragraph -- and I'm going to paraphrase it -- that the issue had become very political and you set out how all the politicians were, as it were, lined up. The second paragraph: "The officials' position is currently to favour retention but with the new clause to widen the defence." So this is the reasonable belief test? A. Mm-hm, yes. Q. But otherwise -- when you say "favour retention", you mean keep the original proposal in the new bill? That's right, isn't it? A. That was what I think the civil servants were favouring. Q. Yes. A. Keep it as it is, but build into it a wider defence and I was perfectly happy with that. Q. Yes: "There had been several meetings with media representatives, including Paul Dacre, Guy Black, Murdo McClellan and Rebekah Wade. The media side welcome the new clause as far as it goes but are still holding out for removal. One of their fears -- though remote -- is that the penalty will be increased but the wider defence which gets taken later as a new clause will not succeed. They have countered this by arguing that the prison sentence should be dropped and the defence widened. I fell off my seat at this point and said my reaction to such an outcome would be nuclear." A. Yes. Q. We can see that. So it's quite clear that powerful media representatives were arguing the position as eloquently as they were able in support of their own self-interests, really? A. Yes. Q. Fair enough, that part? Thank you. The upshot, though -- A. You didn't read the next sentence, which I -- Q. Yes, please do. A. If I just read it to you: "I was asked how we would react to removal. I said it would be very noisy and very messy. We will publicly denounce any such report. If we lost, we would publish a third report to Parliament, documenting how this state of affairs had come about." So I was playing hard ball, if you like, but I had to safeguard the position we had reached by making it clear to the permanent secretary that, you know, if there had to be a deal, we wanted a best possible deal. Q. The upshot was that the deal which was attained was that the increased criminal sanction, sentence of imprisonment, would require secondary legislation -- that's the ministerial order you refer to -- but paired with that would be the introduction of the reasonable belief test defence. All of this is now in Section and I think Section of the Criminal Justice and Immigration Act , which received the royal assent on May . A. I would at some stage, maybe now, like a chance to say something about that. Q. Please do. A. Because that is still the position. That's on the face of the statute and I cannot for the life of me understand why the government has now not activated that provision. There was a consultation in , just before the general election. My successor has been to Parliament very recently. This -- he has documented how this trade is still carrying on to this day. He's given many examples, and I am very disappointed as an individual now that still, despite all the material that has surfaced in recent months, the order has not been activated. It would be a very simple matter to bring that into force now, and my broad understanding back in was that it would only be a delay of six months or so, but that has not yet materialised and I'm afraid, sir, that your Inquiry has now given us the reason why it can't be activated. LORD JUSTICE LEVESON: What? A. Yes, my successor has been told that the government is not willing to activate it because it has to wait and see what your Inquiry leads to. I understand the Lord Chancellor wrote to my successor quite recently. So we're in a situation now of having to wait until your Inquiry is concluded before, apparently, that can be activated and I say very clearly -- this is my personal view -- I can see no reason whatsoever to once and for all address this very, very serious matter of this illegal market, why this section should not now be activated to send a very clear signal indeed at a deterrent level that this is to be taken very seriously, because even now there are people engaging in this sort of activity which need that sort of lesson. They need not only the deterrent effect of a prison sentence but also unlocking all the other sentences which become available once a prison sentence is there, and that was part of the campaign. It's not yet concluded. MR JAY: All of this evidence merges into module three of this Inquiry. One can draw certain inferences from what you said, perhaps. A. The chairman expressed surprise. This is all in the public record because the justice committee in October of this year made exactly the same point. They made a very clear recommendation as a select committee that the government should introduce this section straight away and not await the outcome of the Leveson Inquiry. Q. This is all a nice segue to -- A. I'm sorry, I said I wanted a chance to say this. This seemed to be the point to -- Q. Mr Thomas, the next section, press knowledge and influence. That may or may not throw some light on what you've just been saying. Paragraph of your first statement, . A. Yes. Q. Can we try and summarise this, given where we are at o'clock on a Friday afternoon, having covered quite a lot of evidence already. You make the point fairly in paragraph that although media coverage was limited -- this is the reference to the publication of your reports -- the reference to journalists certainly did not go unnoticed. You refer to the table which we've looked at. You refer to the response to that. Paragraph , if I could deal with one sentence there, two lines down: "Certainly the table suggested heavy involvement across the tabloid press at least. I have always recognised that the material seized in Operation Motorman came only from one group of investigators and may have been entirely isolated." What is your considered view about that, Mr Thomas? Or is there no evidence either way? A. There's no hard evidence, but we made the point in our second report that the Goodman-Mulcaire case appeared to be a completely separate group. They were not engaging in the same activity, but I think we said there were parallels. The hacking of voicemails had parallels to the Section activity. I also refer to -- I said this morning, we documented in our first report how the office had prosecuted an investigator for this sort of activity in the mid-s and how the press coverage in the , early , late , early -- they had reported three or four examples of this. So all that, shall we say, points towards this not being a completely isolated network, but I can't go further than that. By its nature, this is an underground market and I knew from conversations with my investigators how difficult it is to get the hard evidence. Q. In paragraphs and of your statement -- you've covered much of this already, Mr Thomas -- you say that you had exchanges with press representatives on the substance of your reports. The general line was to accept that some journalists "did these things". Through numerous meetings, no attempt was ever made to deny the activities that you'd exposed. Then you say in paragraph , towards the end: "I have no doubt that by late , most -- it not all -- proprietors and editors at national level knew all about the material we had published." So that's your evidence in relation to that? A. A very clear impression that our report was being talked about was people were aware of it and were increasingly taking it seriously. Q. Then you had a meeting with Mr Les Hinton at the offices of News International in Wapping, October -- this is paragraph -- you say in his capacity as chairman of the Editors' Code of practice committee. RJT, which is our tab , page . Does this tie in chronologically with Sir Christopher Meyer telling you you're speaking to the wrong person, speak to the Editors' Code of Practice Committee chair, you finding out who that person was, arranging the meeting and this is the meeting; is that right? A. This is not -- yes, you're right in chronology, but I had previously met the secretary, Ian Beales. I'd met him about a month or so previously to explore issues and in my evidence there's a note of the meeting with him and we had a very frank exchange on both sides, and then a month or so later, I had the meeting with Les Hinton, who I knew was a powerful figure at News International, but also was chairman of the code -- the Editors' Committee at that time, and that was the reason for the meeting. I gave this as an example both of the level of awareness but also from the event that followed it. Q. You can see your objectives under paragraph : tougher penalties, louder condemnation, plain English Section guidance, changes to code within weeks. A. Yes, that was -- I think I had an awareness somewhere the -- one of the virtues of self-regulation. It doesn't take years to go through Parliament. We can change it within weeks. I'm not sure whether the PCC claim that, but that was part of the general culture of self-regulation. I'd come across a lot of this at the Office of Fair Trading and the line was: "Let us self-regulate. We can latch onto things and change them very fast." Q. Then in the second part, ICO offers, first -- this is public interest guidance? A. Yes. Q. In other words, displaying what would amount to a public interest defence -- A. Yes. Q. -- wider than the code and then you set out possibly categories: crime, inpropriety, health and safety, misleading statements and activities. A. Just to interrupt, one of the points I was making was that we, by this time, were fully engaged with the Freedom of Information Act and virtually every difficult case we had to handle involved a balancing of public interest considerations so -- and we had published a great deal of guidance on what is the public interest when it comes to disclosure in the freedom of information context, and this was not an exhaustive list but these were the sorts of matters which were covered in our guidance as to what the public interest means in the FOI context. Q. Then you use the term "last-chance saloon" -- was it you who used it? A. I think it was, but I think I was aware that that phrase had been used on a number of occasions in this context, going back perhaps years. Q. Yes. Mr Hinton says on the next page "accepts equals problems", so he's accepting that there is a problem. A. I've highlighted that in my evidence because that is my note made that day, and that, I think, is consistent with what I'm saying elsewhere, that everyone I talked to recognised there was a problem and there was he, saying to me -- this is my note: "I accept there's a problem. Something radical will happen." That was his very clear message to me. Q. Although he was hostile to the prison sentence? A. Absolutely. Q. Then you say that within two days of that meeting there's a leader in the Sunday Times under the next tab, RJT, October . A. Could you remind me of the tab number? LORD JUSTICE LEVESON: . MR JAY: Tab . LORD JUSTICE LEVESON: . A. Thank you, sorry. Yes. This was the leader on the Sunday Times. I'd met Les Hinton on the Friday at about o'clock and over the weekend, picked up the newspaper and there was this very strong leader. I felt that there may have been some connection and I made that point in my witness statement. I have now seen the witness statements from News International and they are saying there was no connection. I do no more than what I said in my witness statement. It raised questions in my mind. It seemed to be a coincidence, but I had no inside knowledge at all as to how the editorial came to be written and I've seen the witness statements. It's not for me to make any hard allegations there, but it did seem to me there might have been a connection. Q. That point may be taken further by Mr Rhodri Davies. I'm going to leave it there, Mr Thomas. LORD JUSTICE LEVESON: One comment on it. In the left-hand column, it's said: "He [that's you] did not talk in the interview about the role of the press in protecting the public by exposing the abuses of the powerful. Newspapers had already been doing this for centuries when he took up his post four years ago. This duty of the media is vital in the struggle to maintain an open society, yet Mr Thomas would send reporters to prison for fulfilling it." Is that a fair reflection of what you were proposing in the legislation? A. No, it's not, because I was absolutely clear -- first of all, this had been criminal since . Nothing new. And secondly, there was a number of defences, of which the public interest defence is by far the most important, and although almost everything which the press were doing in this area was justified in terms of what I might call genuine investigative journalism, virtually all the stuff I was aware of certainly coming out of Motorman was not something which would have been at all easy to justify in public interest terms. I think I said to the Select Committee it was, you know, celebrity tittle-tattle, and I think it would be very difficult indeed to justify the vast majority of that in public interest terms. I hope I gave that message to you this morning. MR JAY: Yes. A. So I don't think this was a fair comment. This was -- you know, I understand what they were doing. I understand the need for them to articulate their various arguments, but their constant line was what we were trying to do would threaten genuine investigative journalism, and I was -- my response was: for a start, this is not genuine investigative journalism, and secondly, you have a very powerful defence there, and later I came on to say the defence itself could be widened to meet your concerns. Q. Thank you. Then in paragraph -- A. I'm not sure I made the point that this editorial, sir -- it was not prompted by anything in the public domain at that time. I had done an interview with the Times which I think appeared on the Saturday. I accept that. That didn't mention this matter at all. It mentioned many other matters. In fact, the editorial itself talks about a "little-noticed report". So my concerns about the article were reinforced by this appeared out of the blue. It wasn't sort of following something in the news over the previous couple of weeks. But equally, I totally accept that the evidence from the editor and others concerned was that there was no connection with my meeting with Les Hinton. I'm just reporting how it appeared to me at the time. Q. Yes. In paragraph you say of your first statement: "Whatever was precisely known about the nature and extent of press misconduct across the industry as a whole, it became increasingly clear that the press were able to assert very substantial influence on public policy and the political processes." And really, you learned that from your experiences derived through watching what happened to the criminal justice and immigration bill, culminating in the compromise which you told us about; is that right? A. Well -- yes. That was when I was directly on the receiving end with first-hand evidence, but I mean clearly right from onwards, there had been a kickback from the press, and they were setting out their counter-arguments. Q. You refer by way of example to Mr Paul Dacre's speech at the Society of Editors conference, given on November , RJTunder our tab at . A. Yes. This was him six months after the battle had concluded. Q. Yes. A. I'd had a meeting with him which was actually a very friendly and constructive meeting in the intervening months, and then at Bristol, he set out in his speech his version of events. I can do no more than just refer the Inquiry to what he said. He described me as a "tenacious and principled fighter who I've come to admire". He may not agree after this morning when I got his title wrong, but I was teased, shall we say, at the conference for being described in those terms by Mr Dacre. Q. You didn't have the benefit of a dinner with the Prime Minister, Mr Hinton and Mr McClellan, which was months prior to that, which Mr Dacre refers to in the speech. This is three lines down RJT: "The agenda was their deep concern that the newspaper industry with facing a number of very serious threats to its freedoms." The Data Protection Act and the amendment to the criminal sanction was then mentioned, and then in the next short paragraph: "The Prime Minister -- I don't think it's breaking confidences to reveal -- was hugely sympathetic to the industry's case and promised to do what he could to help. Over the coming months and battles ahead, Mr Brown was totally true to his word." It might be said though that Mr Brown simply followed where his principles were taking him and he wasn't listening at all to blandishments or otherwise given by Mr Dacre and Mr Hinton. Is that not a possible fair explanation of this? A. I don't think it's for me to say one way or the other. I mean, I've set out my involvement. Mr Dacre's speech sets out his. I don't know what happened between these various stages. I can speculate but I don't think it's for me to speculate. Q. Mr Dacre certainly had the ear of Mr Brown over dinner. That's -- A. I think there was a general feeling that people at the head of newspapers were very influential with the politicians and this perhaps was an example of that. And although they rested their case, as I said just now, on the threats to investigative journalism, I was surprised by how hard they were fighting, and it really left me with a message that we were challenging something which went to the heart of much of the -- certainly the tabloid press activity. Someone once said to me: "You do realise that you are actually challenging their whole business model?" Maybe that's one reason they were fighting so hard, because on the one hand, they were not publicly accepting this sort of thing went on. On the other hand, they were fighting very hard to avoid the consequences of the law as we saw it. MR JAY: Mr Thomas, I am very much nearing the end but we need to deal with section G and H of your first statement. I think as we've been going for an hour and twenty minutes -- LORD JUSTICE LEVESON: Yes, let's have a break. Thank you. (A short break) MR JAY: Mr Thomas, the current situation, please, G. Mr Graham will be giving evidence to the Inquiry in January to bring us up to date, as it were, but you rightly say in paragraph : "My impression -- and this was reinforced anecdotally by what my team were telling me between and -- is that press misconduct of this type set out in the two ICO reports and in this statement largely ceased after ." And then you refer to a quote from the Independent on August . We can go to the very bottom of it, in the first box on the next page: "What was a flood of stories stood up in this way is now a trickle." Then you refer to Mr Dacre's speech at RJT, which is really a very strong warning shot across the bows of the press, isn't it? A. Well, that's from Paul Dacre. Q. Yes. A. Yes. Q. RJTis under -- well, in fact we've seen it, haven't we? At paragraph : "What Paul Dacre said then was consistent with what he told me when he asked to see me on June in his letter to me of July ." That's our tab . RJT, page , where he thanks you for coming to see him: "It was good to see you and subsequently to watch in admiration the way your body is changing the landscape of freedom and secrecy in this country. As promised, I am now writing to you about the progress we're making over DPA. You already know about the various undertakings at Associated Newspapers to ensure that our journalists understand and comply with the DPA, especially in regard to Section , and at our very useful meeting, I promised you an update on the various other industry initiatives at or on the DPA." At the bottom of the page: "Work is under way on an industry-wide education and information notice which will be made available to all journalists." The notice will be distributed digitally, et cetera. Third paragraph: "We are planning during the autumn to carry out a cross industry survey on data protection issues to gauge levels of awareness, information and education." That is all positive news, isn't it? A. Yes. I had met him previously before then when he had been asked by the Prime Minister to undertake a review of the -year rule, which had an impact on the freedom of information legislation. He asked to see me then. Then my only other contact was this meeting I had with him in whenever it was, June, and it was a charming meeting. We both recognised there had been a battle. We both recognised that we'd had our respective positions and he went out of his way to tell me that within the Mail group newspapers and, I think, more generally across the industry generally, that what we had done had sent shockwaves and obviously the imprisonment of the two people under the RIPA matter had also had a big influence and that they were determined to clean up their act and were cleaning it up. Q. Yes. In terms of regulatory reform, Mr Thomas, you're not suggesting -- in any event, it would be outside the remit of this Inquiry -- wholesale changes to the UK data protection regulatory framework. You are arguing for -- and you've already made this plea to us -- an immediate ministerial order to activate Section . Towards the end of paragraph , you say: "There remains a case for the ICO to publish a statement of prosecution policy along the lines of the draft in early ." We should identify that. It's tab , RJT, starting at page . If you look forward to page , what you're furnishing there is some general guidance on public interest, either for the purposes of bringing prosecutions or also for the purpose of providing a gloss on what that means in Section ; is that correct? A. That is correct, Mr Jay. This was drafted at fairly short notice towards the end of January, when we first got wind of the concerns being expressed by the media, and one of the concerns was yes, there is a public interest defence, but it's very uncertain and no one knows where they stand. So my reaction was: well, let's draw upon our freedom of information experience and put together a note on this. I'm not -- I don't think this was published during my time or indeed subsequently. I'm not quite sure what's happened since I left the office, but although it was done in quick order, I look at it now and I think actually it is still quite helpful, and I wouldn't want to do very much changing to it. I think it might be polished a little bit, but I think it does set out very clearly that it is not that difficult to identify the major public interest considerations in this area. Q. Yes. A. And of course, if the defence were to be widened, as the prospective change in the law anticipates, there would be some modification to this note, but the substance of what is public interest I don't think would change very much. Q. Thank you. I'm not going to read it out, given the time, but we'll certainly take this into -- A. But I would just say, Mr Jay, that all the stuff that I saw from the Motorman evidence didn't come near this sort of category. It was what I think I said to the Select Committee. I haven't seen a whiff of public interest. It was tittle-tattle. It was fishing. There may be one or two examples, but they would be exceptional. Q. Finally, Mr Thomas, I need to pick up on a number of points others have given to me. The first is a general point. Did you invite the editor of the Sunday Times to attend an interview under caution in in respect of possible breaches of Section in relation to Lord Levy's tax affairs? A. I have no memory of that whatsoever. I suspect it was actually , not , or perhaps News International might check their dates on that. When I got to the office, there was sort of a casual comment there had been a problem with Lord Levy some time earlier. I did telephone Francis Aldhouse on Wednesday this week saying, "What's your knowledge of this, because it's been raised by News International?" He said to me that it rang a faint bell, but he had nothing more to contribute than that. I'm sure something happened. I personally don't know what it was, and nor does Francis Aldhouse have any ability to help us. If that had been the case -- and can I speculate? If the Office had invited the editor and had been rebuffed, that might perhaps have influenced people at the investigatory level as to the problems of interviewing people from the press. I don't know. That's before my time and I'm afraid I don't know if the office has searched its records for anything on that because it's only surfaced in the last few days, but I have no personal knowledge of that at all. Q. When you were Commissioner, were journalists or editors on any occasion, to your knowledge, invited to attend an interview under caution in respect of possible breaches of Section ? A. No. Q. The argument against the introduction of a prison sentence runs along these lines: that it does have a chilling effect on genuine investigative journalism because of uncertainties regarding the scope and content of the public interest defence, so that even unwittingly it will have a serious chilling effect, which you haven't properly taken into account as an argument. Given the importance of Article and the importance of a free press in a democratic society, the pendulum should really swing the other way. Can I invite you, please, to consider that argument? A. I totally and completely understand and support the freedom of the press, not least in holding governments and those in power to account. My evidence contains words to that effect. I totally recognise the need for balance in this area. But what I said at the time -- and I perhaps repeat now -- first of all this has been a criminal offence since . We're not seeking -- never have been seeking to change the substance of the law. The debate was only about the penalty, and I would assume that no journalist or editor wants to have a criminal conviction, whatever the sanction. Secondly, to the extent it had a chilling effect on unacceptable press behaviour, then I would welcome that. I felt -- and I said at the time -- that the whole point of a deterrent is to stop illegal activity from being carried out. And I address the point more explicitly, first of all with the draft prosecution statement that we looked at ten minutes ago, but I also said -- and I said this to members of the various associations, the Code Committee and in Select Committees -- I said that any journalist seriously justifying what they're doing in public interest terms at the very least should make a note of what they're doing, and if they were to wave that in the face of a Commissioner later, that would be a very serious inhibition on a prosecution later. They should also seek legal advice in those situations and they should seek the authority or the say-so of their editor or somebody with suitable authority. But the sort of scale of the activity that we saw -- I'd almost describe it as industrial -- engaging or buying information from private investigators which at least must be a risk of coming near to criminality, unless they could document very clearly what they were doing in public interest terms, then they were going to be at risk. I said that if they did that, I did not think that it would have any sort of chilling impact on the -- genuine investigatory journalism. If you look at the second of our reports, we included a quotation from the Observer newspaper in August : "Occasionally all newspapers that turn over stones will need to do exceptional things and need that freedom if they are to be effective watchdogs, but such investigations can't be generalised trawls for titbits, a covert sweep for something or other, even if only a Palace gossip paragraph. Condone that, and the kind of seamy wheezes alleged here will poison the well for all journalism." And there was a similar article at the time of the Glade case at Blackfriars by Roy Greenslade, I think in the Evening Standard or perhaps the Guardian, making some very similar points and actually saying that the media ought to welcome what we were doing on this front. Q. Thank you. In relation to ex-directory numbers, do you accept that the demands of what is known as the Reynolds qualified privileged defence in libel, which encourages responsible journalists to contact a potential target in advance of publication to put the allegation to him or her, means that getting in touch with the subject of stories is both important and entirely legitimate? A. It's important and it's legitimate. What is not acceptable is to either engage in or to be the customer of illegal activity. There are ways and means of getting hold of people other than using stolen data from inside, for example, telephone companies. From time to time, the media need to get in touch with me. It's not that difficult to approach the organisation with which someone is associated and to say, "We need to get in touch with Mr Thomas very quickly. Can you please pass on this message?" I get those on a regular basis and that is the correct way to behave. It is not correct to rely upon information which was obtained by deceit or deception or corruption. Q. Do you accept that in many cases there may have been a public interest defence in stories which journalists were writing? This, of course, is in relation to the Whittamore material. A. I said just now that I saw nothing at all which struck me as being justifiable in public interest terms. I also said earlier that I'm not condemning every single transaction. I gave the example of the minister who had resigned from the government. Perhaps that might have raised public interest concerns. I'll also share with you, in our report we documented some examples of ordinary people being caught up in this, which I felt particularly strongly about. At the time -- how can I put it? No one cared that much about the celebrities and we understood that and we were concerned with the protection of the private individual. We gave examples, if I can just turn up internal page -- Q. Is this the first report or the second? A. The first of our reports. Q. RJT? A. Yes. If you look at paragraph .on page , the internal page -- I don't have your page number -- Q. , yes. A. You see where I'm going on this. We gave some examples of private individuals. The first was a painter and decorator, and I remember being told that he couldn't understand why he was on the list of Whittamore's targets. And then apparently -- I pick this up -- he worked it out for himself. He had been painting and decorating the house of a lottery winner and his van had been parked outside, so somebody had tracked him down from the registration number of his white van outside the house of a lottery winner. No public interest there that I can think of. The second case, third case: a green grocer, hearing aid technician. The last case I mentioned there -- I've been thinking about this and I'll share it with you. It's a medical practitioner who was doorstepped by a Sunday newspaper in the mistaken belief that he had inherited a large sum of money from a former patient. Now, if there was hard evidence that a GP had killed a patient or contributed to his or her death, then conceivably -- and I use that word advisedly -- there might be some sort of public interest justification. But even then, I would say it's a matter of proportionality. If you only have a rumour going around the village and they hadn't investigated themselves and hadn't taken proper steps to involve the police or even do their own investigations, just simply getting hold of that doctor's personal information in order to doorstep him on that particular matter, which indeed proved to have no foundation whatsoever -- I think very hard proportionate terms to justify as being in the public interest. But I do recognise there may be some examples, and that's one which I'm happy to share with you. Q. Final question, Mr Thomas: do you accept that in many cases journalists were asking Mr Whittamore to supply information that was already in the public domain? A. It depends what you mean by "public domain". An address or a telephone number would not normally be in the wider public domain, in the sense of being in the press or being very readily available, but I do recognise that in some situations an address or a telephone number is not a matter of great secrecy or, you know, beyond anyone's sight. On some occasions, I have no doubt that people were using Whittamore or similar investigators to shortcircuit -- and we've touched on this this morning -- to get there faster. But I do not believe that justifies the sort of blagging, the sort of deception, the sort of corruption that we came across, just because that number might otherwise have been available by more laborious means. And people only go ex-directory for good reason. MR JAY: Mr Thomas, those are all my questions. I understand that there may be applications by others for short questioning. LORD JUSTICE LEVESON: Yes. Just can I pick up one thing you said just a moment ago, Mr Thomas. You were talking about examples of which you felt particularly strongly and you said: "At the time -- how can I put it? No one cared that much about the celebrities and we understand that." Now, I'd just like to ask you what view you, as the Information Commissioner, had in relation to those who are celebrities? A. Well, I hope I didn't give any sort of misleading impression, sir. Any celebrity has the same entitlement to the protection of the law and indeed self-regulation as much as anybody else. But I'm trying to reflect back to where we were eight, nine, ten years ago, and the fact that in general discourse there was a sort of view that celebrities put themselves into the public arena and have to accept some intrusion into their lives as a result of that. What I was trying to say was: therefore, any formal action, particularly a prosecution, was likely to be, if you like, that much more difficult because there will be less sympathy for the celebrity. That was perhaps one of the factors in our mind at the time. That's why, particularly in the reports, I wanted to highlight the situation of people who were not celebrities. I gave the three examples just now coming out of Whittamore, but most of the other examples, where insurance companies, finance companies, law firms had been involved, these were not celebrities at all. These are people who are caught up in insurance claims, in matrimonial disputes, a wide range of activities where this industry was targeting them. I'm in no way suggesting that just because they were celebrities they should not be taken seriously by us. Indeed, I mentioned to Mr Jay that we'd gone to or people for witness statements and quite a few of those were people who were celebrities. LORD JUSTICE LEVESON: Yes. A. I don't need to mention all the names now but some of them have already appeared here and others have come forward as being -- recognising they were victims. LORD JUSTICE LEVESON: Well, we've seen some of the data, yes. Thank you. Mr Davies? MR DAVIES: Yes. If I may, sir. LORD JUSTICE LEVESON: Shortly, Mr Davies. MR DAVIES: I said about half an hour. I'll stick to that. Questions from MR DAVIES MR DAVIES: Mr Thomas, my name is Davies and I appear for News International. Can I just say for the record -- I'm not going to go into it -- that we do not agree with you on the interpretation of Section of the Data Protection -- A. I'm sorry? Q. We do not agree with you on the interpretation of Section of the Data Protection Act, because we take the view that it does cover steps leading up to publication including, for example, contacting someone to ask them about a story. A. I don't think I was giving any sort of definitive rule in the interpretation of Section . I was talking in very general terms. MR DAVIES: It's perfectly -- A. I was not in any way attempting to interpret Section today. Q. Thank you. Now, you became Information Commissioner in November . It was, in fact, on December that your office wrote to the editor of the Sunday Times, Mr Witherow, asking him to attend an interview under caution under Section . A. Well, I -- thank you, you've corrected me. I have no knowledge or memory of that. Can you tell me who wrote the letter? Q. It was a Mr Farrington. A. Well, he was one of the investigators who was a more junior rank than Alec Owens. Q. Yes. When he say he wrote it, he signed it. I don't know who had input into it. A. Well, yes. Q. So presumably you don't recall that the cases that Mr Witherow was asked to attend an interview about concerned Lord Levy and Lord Ashcroft and one other that I needn't mention. A. Lord Ashcroft wrote to me -- well, as you know he made the FOI request in . Q. Yes. A. And either before or after -- I can't recall now -- he had expressed quite strong frustration that my office had not been much use at sorting out his complaints. It wasn't the first time. I mean, before I even started, Stella Rimington, who was head of MI, in her memoirs had written that her personal information had been obtained by somebody and she had recorded she'd gone to my office and hadn't got much joy out of the office. So that was part of the generally background and context. As for Lord Levy, apart from what I said earlier, which is, I have to say, a very, very faint memory -- and as I understood it, before my time. You're now telling me it was two weeks into my time, but I'm afraid I have no personal recollection or knowledge at all. Q. You've said quite a lot about investigative journalism and how that's not to be threatened, but it's quite obvious, isn't it, that if you have a conjunction of the Sunday Times, Lord Levy, Lord Ashcroft, tax and financial affairs, then we're going to be talking about investigative journalism and the public interest, aren't we? A. Well, I don't want to be drawn on matters I don't know much about, but from what I've read in the last few weeks about, you know, the tax affairs of somebody in the public eye, then certainly in that sort of situation, we are approaching the public interest territory, yes. Q. Yes, and nonetheless, your office thought it right to ask Mr Witherow to attend an interview under caution. Presumably, you would not be surprised that they got a lawyer's letter back saying this was perfectly proper and Mr Witherow doesn't intend to attend for an interview under caution? A. As you tell me now, I'm not surprised. Q. No. A. And indeed, the paperwork you shared with me on Tuesday principles that point out and I think the matter didn't go any further. Q. No. And you would expect, wouldn't you, that Mr Witherow would have taken advice on Section and on the penalties available under it? A. I imagine so, yes. Q. And what he would have been told then was that they included a fine but not imprisonment? A. Yes. Q. You've confirmed today that in your time as the Information Commissioner, that seems to have been the only occasion upon which a journalist was invited to an interview under caution for a possible breach of Section ? A. I can only share my knowledge. I mean, you brought to the surface an example which I didn't know about. That was in my first two weeks. But even if it happened six months in, I wouldn't necessarily have known about it. I probably would have expected to, but all I can say now is I'm not aware of any example, apart from the one you just mentioned, where we directly approached a journalist or an editor. Q. That example is actually mentioned in the Times article that you complained about, following your meeting with Mr Hinton. Did you notice that? A. Um ... Q. We'll come to it later so -- if you haven't picked it up -- A. I can remember the reference to Lord Levy, yes, and indeed he was on the front page of the Sunday Times that particular day, so obviously there's a connection to be made there. On a separate matter, this was the cash for honours issue. For all that -- what you're saying is: is that public interest? It's certainly getting very much into that territory, yes. Q. Yes. A. But this was not in any way typical of the material coming out of the Motorman inquiry. Q. No, Mr Thomas, and what's certainly troubling about it is this is the only occasion upon which the big stick of an interview under caution was wielded. So one is bound to ask: is it a fair surmise that the reason that happened was that your office was under pressure from two powerful and well-connected people to do something? A. I don't see it that way. I mean, powerful, well-connected people would normally write to the Commissioner and say, "I want to bend your ear", and occasionally you had things of that nature happening. I mentioned Lord Ashcroft wrote to me, and I think it was a dead issue by that time, but I don't -- I have no knowledge. I just simply can't help you on that. Q. I see. A. If you're suggesting that we wrote -- what was the date? The second week of December? Q. Yes. A. Well, that would suggest that whatever complaint or issue that Lord Levy had raised had come in some time before I'd started, so it didn't come across my desk is all I'm saying. Q. It was an old complaint as it related to something which happened in , which makes it perhaps all the more remarkable that it was taken up three years later. A. Well, I mean, I made the point this morning. The investigations unit in those days was -- I think I used the phrase "self-contained", and to a certain extent self-governing. I wasn't happy with that, so I changed things there. They were, perhaps, more detached from the rest of the office than I was happy with. I can only speculate that the letter would have come in and they would have done something about it. They weren't the most sophisticated of people. They would have -- I mean you mentioned one person's name. He was not a person who I think I ever had a meeting with myself. I recall the name, but no more than that. Q. I don't want to spend a lot of time on this, but it is rather odd, isn't it, that you had this avalanche of information which we've heard of on Operation Motorman, and that didn't lead to any such letter, and this did? A. I just don't know what their methodology was. I didn't know, certainly in those days -- even now, I don't have detailed knowledge of how that team undertook its activities, so I don't draw any particular inference in the way you're suggesting. Q. All right, let's move on to your meeting with Mr Hinton on October . You raise this at paragraphs and of your first witness statement. Your meeting with Mr Hinton was, as we've heard, in his capacity as chairman of the Editors' Code Committee. He wasn't wearing a News International hat? A. It was at his office, but you're quite right. Q. What you suggest in those two paragraphs is effectively that immediately after the meeting, Mr Hinton lent on the editor of the Sunday Times and a journalist at the Times to write hostile pieces about you? A. I wasn't suggesting anything at all apart from what's in my witness statement. Q. Well, you're -- A. I said the episode raised questions in my mind -- Q. Yes. A. -- about proprietorial influences on editorial independence and freedom. Q. Yes. A. That is absolutely how I saw it at the time. I thought: "Gosh, this is very surprising and strange. Just hours or less than that after I'd met the most senior person at News International, here suddenly I'm appearing in a leading article, the lead editorial in the Sunday Times, on something which is not part of the public debate at the moment." I've now seen the witness statements from the editor at the time and also from Mr Linklater, and they say categorically they were not directed by Mr Hinton. I have absolutely no reason to challenge or disagree with that. All I've said was at the time to me, and to others around me, it looked strange. Q. So am I understanding this right: that you are not making any allegation that there was any interference by Mr Hinton which led to those two -- A. I'm saying no more than appears in my witness statement. Q. Can I just take a moment to deal with the context at the time, Mr Thomas? You'd published your "What price privacy?" report in May, about five months earlier. On July, the government had had opened a consultation period on the proposals for imprisonment for breach of Section and that was a proposal which you had yourself initiated. Since publication of that report, you say in the follow-up report that there had been a growing and substantial level of positive press coverage. So that was presumably going on in October? A. Yes, growing, not exactly an avalanche. But there was more media interest, particularly after Goodman and Mulcaire had been arrest, and I think that began to really lift off the -- Q. Which they had been at that point? A. Yes, indeed. That was August, yes. Q. And you'd given a lengthy interview to the Times, which was published the day after your meeting with Mr Hinton. A. I think the interview had been about two weeks previously, but you're quite right, if was published in the intervening Saturday. Q. And it may be that was not unconnected with the fact that there was an international data protection conference in London the following week? A. Um ... I can't recall the timing. I know that that was -- Q. It's mentioned in the interview. A. I was organising and chairing that conference. That was a major preoccupation for me at the time, to have the world's commissioners all coming to London, so I was -- the interview was largely sort of flagging up the issues to be discussed at the conference. Q. Exactly. So you were actually trying and succeeding to get a bit of press coverage for your conference which was coming up. A. We spent a lot of time trying to get press coverage on all sort of things, yes, and this was one of them. It wasn't -- Q. Then the consultation period for the government's consultation paper on imprisonment was actually closing on October, wasn't it? A. Um ... Q. On the Monday? A. I forget the exact date but that sounds about right, about three or four months after it started. Q. So when the Sunday Times wrote a leader on the Sunday upon the desirability or undesirability of imprisonment for breaches of the Data Protection Act, it was actually writing it the day before the end of the consultation period on exactly that subject? A. Yes. Q. That seems quite an opportune moment to write such an editorial, hadn't it? A. Except there hadn't been much about our report in the previous three or four weeks. I'm not going any further than I set out in my witness statement. It appears I'm even wrong to raise questions but I did, in my mind at the time, and until I saw the witness statement on Tuesday of this week, when they deny any sort of direction from Mr Hinton, I thought there was a connection. And virtually everybody I've talked to says, "Gosh, that does look rather strange, doesn't it?" But we've now seen what your witnesses have said and I in no way wish to challenge that. Q. Thank you. The other point which would have had a resonance for Mr Witherow, who was the editor of the Sunday Times, was that Lord Levy was back in the news on the front page that Sunday, and it was Lord Levy about whose affairs he'd been invited to an interview by your office three years earlier. So it's not -- there were very, very good reasons why he might have chosen to publish that editorial on that Sunday, quite apart from your meeting with Mr Hinton? A. Yes. Q. The other point you make about this meeting at paragraph of your first statement is that you refer to your manuscript note and you say that "that confirms knowledge of misconduct at the highest level". Now, "the highest level" is a reference to Mr Hinton, presumably? A. Yes. Q. I'm not quite sure what you mean by "knowledge of misconduct". A. Well, what I meant was the sort of activity which had been documented in our first report, which had been published some five months previously, and what I had meant was that this produced the prima facie hard evidence at the very least that tabloid journalists were significant customers of private investigators who were breaking the law to obtain information. Q. So essentially -- A. And that's the sort of material which I -- which was documented in our report of . It's the sort of material which I was engaged in many meetings throughout this period with many people, and I wasn't going through chapter and verse, but the -- when I talk about the misconduct, that's what I had in mind and that's what I shared with him. Q. I just wanted to be clear about this. The knowledge you were attributing to Mr Hinton is what was to be found in your first report, which had been published five months earlier, and what you had been saying at other meetings and were repeating again at that meeting with him? A. Yes, and I use this example because I think my witness statement said that throughout many meetings and discussions, nobody seriously challenged the thrust of what we were saying, and indeed some went further. If you look at paragraph of my statement, I say the general lines surfacing in many conversations was to accept that some journalists did these things and to indicate thats we had uncovered details of what everyone knew was going on, and then going on to talk about cleaning up our act, et cetera. So this was generally what I was talking about by "misconduct", and from my recollection of that meeting and from the notes that I've made and shared with you, that was the sort of matter which Mr Hinton appeared to accept, and that's my contemporaneous note: "Accept what you say. Something radical will happen." Presumably something radical because he recognised that things weren't right. Q. I'm not going so go into the full note of the meeting, but we see again in that note and in fact in your manuscript note that the industry was opposed to prison sentences for breach of section ? A. Yes. Q. That was not a view which was confined to News International or indeed Associated Newspapers, was it? It was universal? A. Certainly across media organisations. I only had dealings directly with News International and Associated Newspapers, and that was only later, as I've explained. Otherwise, most of my contacts were with the various representative organisations. I refer in my evidence to a bill ordering range, and that was one of the problems we had. We didn't quite know who to talk to. I have a list of the various bodies apart from the Press Complaints Commission: the Editors' Committee, the Society of Editors, the Newspaper Society, the Newspaper Proprietors Association. And we didn't quite know -- I didn't quite know who we should be talking to. Q. I'm not going to venture into that, but the point is that the press, including the Guardian, to take one extreme end of the press, was united on that? A. No. I think you'll find the Guardian was a great deal more broadly sympathetic. I'm not sure "supportive" would be the word to use, but I think they recognised -- perhaps I'm wrong in that -- Q. We have their response. If go to tab , I think it's towards the back. Yes, page . A. Oh yes. Q. "Guardian News and Media takes a different view on some of the issues. Nevertheless, it unreservedly supports the Newspaper Publishers Association's opposition to custodial sentences for journalists who are found by a court to have breached Section ." A. Thank you. I was simply reflecting that I was aware the Guardian were taking a somewhat different line from everybody else. I couldn't recall the exact detail of all that. I was also aware that the editor of the Guardian, Alan Rusbridger, was voicing a dissenting line when the code changes were made at some later stage and he wanted more prominence to be given to third parties, investigators and so on. But what you're doing here is saying that the Guardian was on a different take but I was wrong to say that they were supportive of a stronger sanction. Q. And that argument that imprisonment was an inappropriate sanction for breach of Section coming from the press was an entirely cogent and respectable argument to make, was it not? A. Oh, I've never disputed it. I can see the force of their argument. If I was in their shoes, I would make the same argument. I disagreed with it, but it was a respectable argument. I thought they took it too far. I thought they addressed far too much in terms of investigative journalism, but obviously nobody wants to be regulated more than they have to be, and I'm not surprised therefore that the Guardian, which probably does carry out more genuine investigative journalism in the public interest than perhaps some of the other papers, wanted to have as much freedom as possible. Q. There was also, as I think you know, a legal argument that it would in fact amount to a breach of Article to introduce a prison sentence which might apply to journalists. A. Is this the opinion from -- Q. It's Mr White. A. Yes, and that was the one which surfaced at the -- I think the first meeting I had with the minister. I think Mr White actually was at the same meeting and tabled and left that opinion with -- so I recognised the argument. I thought, with the greatest respect, that it was a good argument taken a bit too far, but I understood where it was coming from. Q. So essentially what was going on in this campaign was that as you acknowledge, both sides had an argument to make and they both made it very vigorously? A. Yes, yes, yes. Q. The press were, of course, quite entitled to oppose the proposals which you were putting forward? A. Yes, but -- I don't want to keep on saying this, but my response all the time was: this has been the criminal law since , we're not changing anything in the substance of the law, and if you believe you're acting in the public interest, you have nothing to worry about. Q. Well, yes. Of course, the difficulty about that is that opinions about the public interest can vary -- A. Which is why I was quite ready to go along with the idea of widening the defence. Q. We've seen some of that today, haven't we, because you have said that to obtain the telephone number of a minister who has just resigned in order to get a comment from him as to the circumstances of his resignation might -- but you're not sure, I think -- be in the public interest? A. No, I was speculating if I use the word "might", because I was taking a -- not a hypothetical case, but taking a case where I didn't know the full facts, and in that situation, I can see the argument, as I could see the argument with the GP I mentioned, but when you are a regulator you look at all the evidence and decide whether to go forward or not. Likewise, if you're a journalist and if you're in doubt, you seek advice before using or receiving information which may or must have come without the consent of the data controller. Q. I want to go on to the publication of "What price privacy now?" You have mentioned that the numbers in the famous league table, as it originally appeared, were wrong in relation to the Sunday Times and indeed consequentially the News of the World, I think. Mr Caseby, who was the managing director of the Sunday Times, wrote to you about that. His letter is at tab , I think. A. Yes. Q. Just let me catch up. He starts that letter off by saying that he spoke yesterday with your colleague -- that was the day of publication -- and you may not know this, but of course the first question he asked was: "Where did you get your figures from? Can I see them?" He makes that point over the page at paragraph , because he says, "I don't know, because you haven't provided the information necessary to allow the Sunday Times to defend itself." And so on. So he's complaining vociferously, I think one could reasonably say, that you have made allegations against the Sunday Times and not provided the information so they can examine them. A. He also knew, by the way -- and that's in that letter on the second page -- he knew the names of the four people who had been prosecuted in Blackfriars, although the case had not achieved any significant publicity at all and he knew the names of the celebrity victims who were mentioned in court. So to my mind, that said straight away that people at the top of the newspaper industry knew a great deal about what had been going on. So the names are mentioned in paragraph of this letter. Q. Yes, indeed. A. I just mention that in passing. So that again shows that we were having an impact. People were aware of what was going on. Q. Well -- A. You're quite right to say that we did not consult him in advance of the league table -- publication of the league table. Q. Then your reply is at tab . A. Yes. Q. On the second page of that, in paragraph , you make it quite clear that you're not going to provide the identities of individual journalists or details of the transactions. A. And the reason for that was section -- we haven't talked about this today, I'm afraid, but section of the Data Protection Act. Q. If that -- A. If I just say straight away, because this is important, when we published the report -- the second report, we had a lot of debate inside the office as to whether we could even name the newspapers, and in the end the advice I received was that given it's a statutory function to lay a report before Parliament, given the wording of section , it would be safe -- not cut and dry, but they thought it would be safe to identify the newspapers concerned but categorically not safe to identify the journalists, and even today in this Inquiry, I'm told that the names are the journalists are not being bandied around. For that reason, in my exchange with Mr Caseby and my exchanges with the Select Committee, with my exchanges with other people, the Press Complaints Commission and so on -- throughout this, I would say, "I'm very sorry, I'm not permitted to share the details of what we obtained under search warrant powers." I regretted that. I felt it was uncomfortable and difficult, but Section was taken incredibly seriously inside my office. We had cabinet papers. We had some highly sensitive stuff. We were absolutely focused all the time that nothing should leave the office which should not leave the office. It's a criminal offence for the Commissioner or a member of the Commissioner's staff to break Section , so we took it incredibly seriously, and that's the reason why we felt unable to share the details with Mr Caseby of exactly who the journalists were. Q. And that remained your position throughout your tenure as Commissioner? A. Indeed. Q. I know that my successor has now given, I think, your clients and Associated Newspapers access to the papers and he also gave the chairman of the Select Committee some access, and I can understand how he reached that conclusion, because the Section does allow that in -- again, back to our public interest terms. But the advice I was receiving throughout was that that had to be kept sacrosanct. Q. So that -- A. There's no disagreement. Time moves on and that's his judgment now. Q. Then you go on in that letter to apologise for the error in the figures. A. Yes. There was one -- I mean, let me say straight away that we spent nearly a month going back on the figures. We had an investigator who was a scrupulous person who looked at it very closely indeed, and he discovered there had been one error. It appeared to have arisen from the original inputting, which Mr Owens had contracted out to the company which inputted the data into the database. And we put our hands up straight away and said, "That's the only mistake we've found. We apologise." Unqualified apology, and we put out the correction to everybody who received the report. I was very distressed at that. It was unfortunate, to put it at its lowest. The investigator concerned, his boss came to me and said that he'd been mortified that it got through. But there it was; it was a mistake and we apologised to your client. Q. You will appreciate from the Sunday Times' point of view it's not a terribly happy situation about the basis of the numbers and, secondly, the numbers had turned out to be badly wrong. A. Well, we corrected them and we wrote to Mr Caseby, I wrote to him personally, and I didn't receive any further correspondence from him. Q. I'm not going to spend any time on figures, Mr Thomas, but can I just ask you this question: the total number of transactions in the league table in "What price privacy now?" we all know was ,, and in the draft letter we have to Mr Ashcroft under the -- sorry, Lord Ashcroft under the Freedom of Information Act, the total number of definitely illicit, I think is the tag, transactions is over ,. Are you able to explain any connection or relation between those? A. No, I can't. I wasn't involved in the direct compilation of this table. I know the figures don't completely match together. I've done my best to explain in my witness statements what I think was happening there, but I think I've said several times, you know, if this is important to the Inquiry to narrow down precisely the numbers, then I would invite the Inquiry to ask the current Commissioner to share all the material with you. I am aware that this Inquiry has had the database from Mr Owens, and I have to say that I am extraordinarily surprised that he held that database. I don't know the circumstances, I've read his statement, but I understand the current Commissioner is ready and willing to share the data with this Inquiry, and it would seem to me that is the correct course. Q. It's with that in mind, partly, that I'm not going to ask you anything else about the figures. A point that is picked up in the press articles we've referred to, but in the interests of time we've not gone to, is the issue of addresses and telephone numbers, and as has been pointed out a number of times, much of a journalist's job consists of talking to people in person or by telephone; you accept that? A. Yes. Q. And you can't do that if you can't find out where the person lives or what their phone number is. A. But you can't steal their number. Q. Well, unless there's -- A. Or have it stolen. Q. The question is whether the line is in the right place, and I just wanted to ask you about that. In the case of the state, the police force and various other manifestations of the state, they have a huge panoply of powers to obtain information. A. Mm. Q. The journalist, as Mr Leigh pointed out the other day, doesn't have any powers to obtain information; all he can do is ask. Do you think that in potentially criminalising the obtaining of basic information as to where somebody lives and what their phone number is, the law might perhaps be going too far? A. Well, first of all I would say it has been the law since . It is not my job as was the regulator to question whether that's right or not, but I have to say instinctively it seems entirely right to me. If somebody bribes somebody inside a telephone company to get information out, that seems to me deplorable, and that's the lower end of the scale. We're talking also about health records, criminal records, tax records and so on. Q. I -- A. You're talking purely -- Q. (overspeaking) strictly to address telephone numbers? A. I say at the very least, just to put it at its lowest, this Inquiry's looking at ethical practices. At the very lowest, it seems to me that a journalist who is regularly using a private investigator, paying quite large sums of money for information which, at its lowest, prima facie was not obtained through legitimate means, that raises a serious ethical question. Q. But you consider, do you, that it should be possible for somebody to make it almost impossible to find out where they live and what their telephone -- A. No, I think there's a non sequitur in the point you're making. There are various ways in which people can be talked to, but people are entitled to a private life. That's what data protection is all about. If I choose to make my number ex-directory, it's not, as has been suggested, to prevent marketing calls. You put your name, your phone number on the telephone preference service and that excludes marketing calls. It's because you don't want the world at large to know your telephone number. That's why mobile phone numbers by and large are not in directories and so on. People are entitled to their privacy. And to have an organisation like British Telecom being penetrated, and they were the victims as much as anybody else, seems to me entirely wrong. Q. I'm not aware of the facts of that, Mr Thomas, so we can't go into -- A. Well, it was in our report. Q. But there is a tension, isn't there, between people wanting to keep their numbers private and other people, journalists, who want to talk to them? A. I wouldn't put it as high as a tension. Clearly some people want things which intrude into private life, and if I choose to keep my telephone number private, if I choose to keep my tax records private and bank records private, if I choose to give them to you or share them with you, fair enough. But the whole point of privacy, article in human rights terms, data protection, is that people are entitled to have their personal data kept confidential by the organisation which holds it, and they have the right to choose who has the information. So I am resisting, I'm afraid, what you're saying. If you're saying just because a journalist wants to talk to somebody they should be entitled to breach that level of privacy, I don't agree. Q. You've touched on earlier today the question raised by the News International evidence of databases of ex-directory numbers. There was mention of a number of million. Can I just ask you to look at the paperwork on that. I think you have the statement of PS Armour(?), who is the editorial legal director at Times Newspapers. I don't know how you have it, but if you can go to exhibit to that statement -- A. Is that PS? Q. Yes. A. Yes. Q. There is there some material from an organisation called GB Group, and if you go three pages into the exhibit, there is what's really an article heading, "Blow to UK liquidity as ex-directory figure hits per cent"? A. Can I say, I only had these papers on Tuesday. I've had a very busy week before now. I've not looked at these in detail at all. Q. No. A. But I generally got the impression that here's a company claiming to have lots of ex-directory numbers and that surprised me. Q. That is exactly what they're doing. They make the point that ex-directory numbers are now as high as per cent and, because they're running a commercial service, they make the point that this makes it terribly difficult for creditors to track down their debtors. Three paragraphs from the bottom of that page, you see the wonderfully named: "GP Accelerator e-Trace Vdelves into the largest pool of landline and mobile telephone numbers available, sourced from a range of previously unavailable datasources and following close consultation with the Information Commissioners Office." A. Well, I saw somewhere else a reference to "consultation". I mean, this means nothing to me. Lots of organisations make this sort of claim. If I was Commissioner right now, I'd be wanting to look into this in a great deal more detail. Q. Yes. A. Frankly, this quite shocked me. I only glanced through this, but when they're claiming to have a virtual database of every ex-directory number and mobile phone directories, I was really quite shocked by this. Your clients have done a great service to bring this to the surface, and I'm sure my successor will want to look at this very closely. Q. It's not difficult to find, I can sure you, Mr Thomas. A. Well -- LORD JUSTICE LEVESON: But if it's right, Mr Rhodri Davies, presumably there is no need even to think about unlawful mechanisms to get telephone numbers in the future,. A. Nor to pay , to do it. LORD JUSTICE LEVESON: We're not both arguing with him! A. Sorry. MR DAVIES: If I put the figures straight first, I think what this is saying is that they -- well, it is saying they have a database of about million numbers and I think if one translates the paragraph underneath that, what you come out to is that about million of them are ex-directory. So we're not actually talking about million ex-directory numbers. They have a competitor which has much the same. The source of these numbers, fairly clearly, Mr Thomas, is I think something you referred to this morning. They are numbered which people have given out to websites, questionnaires, organisations they had dealings with or contract with in which they have not stipulated that the number must be kept private. A. You're drawing me and I was drawn this morning to speculate. I don't know about this. I think these are questions, frankly, for the current Commissioner. If he's going to be called later, I am sure he can brief himself before he comes here and give you some answers, but I don't think it's for me now to comment on this. Q. I'm sorry, this is on numbers. Mr Jay touched on the point this morning that in the whole database, and I haven't done this exercise, there are only about -- I think he said or a few hundred -- what one might call hard cases: criminal records checks, DVLA, friends and family, that sort of extreme end of the spectrum of what ought to be secure information. The rest of it therefore is almost entirely names and addresss and the yet more innocuous stuff. A. No, I'm sorry, you keep saying innocuous, but I have to strongly disagree with that. If information has been obtained in the sorts of ways that Mr Whittamore was using from a data controller without the consent, that is a criminal matter. I'd also say it's an ethical issue, and to simply say because addresses and phone numbers are innocuous, that doesn't stand up. We gave examples in our report of battered women who were escaping their husbands and took enormous lengths to suppress their current address. Many people do not want their telephone number or mobile phone number bandied around. So just to say an address is innocuous or a mobile phone number is innocous I don't think stands up. If that had only been obtained by bribery or by blagging or by deception, then I do not think that's acceptable. Q. I actually said "yet more innocuous" -- A. You can put these on a scale, of course you can. I can understand that. Q. Yes. A. And you could say that criminal records and tax records are at one end of the scale and addresses at ex-directory phone numbers are at the other end of the scale. The point I want to press very firmly indeed is if they have been obtained illegally from inside British Telecom or any other phone company or likewise, then that does not stop it being a criminal matter, nor should it, in my mind. Q. In that respect -- A. Don't forget, the British Telecoms were amongst the strongest organisations saying to us, "We want to work with you to stop this sort of activity." They knew they were exposed. Section is cast in terms of a data controller is the victim of the crime. The individual is obviously also a victim, but they were the ones, and also DWP, HMRC, the tax people, we had protocols with them. They're saying, "We are vulnerable. We want this to be stopped."So you cannot say it's just an address, it's just a phone number, therefore it's innocuous. Q. The point -- and I'm not going to take time on it -- but it is a good deal easier, isn't it, to find a justification which could reach a public interest justification for getting the basic information to get hold of someone, things such as an address and a telephone number; justifying getting someone's medical records is an altogether different -- A. I said earlier in one of Mr Jay's questions that when you start to look at the public interest test, you look at public interest justification, but it's also a balancing proportionality aspect there. Q. Absolutely. A. And that's why I speculated that the case of the minister resigning over a weekend and just getting his number, although prima facie that may have fallen within the section, that might well have been a case we'd say we wouldn't take any further because probably a good defence could be mounted. Q. Yes. A. But I have to say yet again, that was not typical, nothing like typical of the cases that we were seeing. And although you made the point that the majority of the cases were, in your language, only addresses or phone numbers, I would also say the vast majority were nothing to do with public interest considerations along the lines I've just mentioned. Q. Just so we agree on the analysis, I think this is right, it is as you say a balancing act, and you're looking at the one side the strength of the privacy interest, which varies between addresses and medical records, and on the other side the strength of the public interest in obtaining the information. A. I wouldn't want to finalise that as analysis, but it's along those lines, yes. Q. Finally you tell us at paragraph of your first statement, and you've said this again today, that your goal was to stamp out press misconduct for the future and that was a goal which you had set upon in or thereabouts? A. Sorry, could you -- Q. It's paragraph -- A. My goal was to stamp out the market. I don't know that I -- that was talking to the Press Complaints Commission. My wider goal was focused on the market as a whole. Q. Yes, sorry. A. But my goal with the PCC, yes. Q. I'm afraid I am focused on the press. So far as the press was concerned, you wanted the press to clean up its act? A. Yes. Q. For the future? A. Yes. Q. And that is in fact what you got? A. Apparently. I may have stuck my neck out by saying that anecdotally it appears to have been cleaned up, but just let me quote from the current Commissioner going to the Justice Committee in October. He said: "My great concern about Section is not very much to do with the press, but there's lots and lots of evidence of Section being breached on a quite routine basis and it's now mainly about financial service, debt collection, claims management companies and also some quite worrying interference with the course of justice, perhaps attempted jury nobbling or witness tampering, that's the real issue." So he is saying, and he's in the driving seat now, that it appears that the press are not heavily engaged in this activity, and I am -- that was certainly my impression also in the last couple of years of my tenure. MR DAVIES: Thank you very much, Mr Thomas. I have no more questions. LORD JUSTICE LEVESON: Thank you. MR CAPLAN: Sir, I hope just five minutes, or I'll be very unpopular. LORD JUSTICE LEVESON: Certainly. Well, don't worry about your popularity. Too much. Just a moment, Mr Caplan. We're going to have a minutes before we do it. (A short break) LORD JUSTICE LEVESON: Yes, Mr Caplan. Questions from MR CAPLAN MR CAPLAN: This morning you were asked a good deal about what you had not done. I want to ask about what you did do and what the result was. Firstly, please, you told us that your concerns were not just about improper access to personal data by journalists but by others in society as well; is that right? A. Indeed. Q. Would they include solicitors' firms? A. There were some examples of law firms, particularly in the matrimonial area. Indeed, I had a letter from a Court of Appeal judge saying that he was starting to ask questions where evidence was coming in to cases where prima facie it had come, for example, from a bank account, which shouldn't have come, and saying unless the parties could demonstrate they received the information lawfully, he wasn't prepared to allow it to be admitted into evidence. Q. Banks? A. Mainly finance houses, but they were often subsidiaries of banks. Q. Insurance companies? A. Yes. There's an example of an insurance company in our report, which I needn't go into detail now, but a quite shocking example of where somebody's mother -- -year-old mother was telephoned by a blagger and was impersonating a tax official saying that her son was entitled to a tax refund. That was taped and the BBC broadcast that example. Q. One other example: local authorities? A. Yes, we came across some examples of local authorities who were using this sort of activity to chase up council tax and all that was stopped as soon as our report was published. Q. You were keen, were you not, obviously as Commissioner, to promote a better understanding about data protection and to change working methods and attitudes. That was your principle goal? A. Yes. There's quite a big question there. When I started, data protection had quite a poor reputation. It was seen as a bit nerdy, not taken very seriously across many organisations. I think my office probably had some responsibility. I used to say that, you know, we were seen outside as the temple of data protection and being the high priests of data protection, and I wanted to destroy that sort of approach, and therefore I was trying to make us much less esoteric, much more avoiding the technical language. I mean, a data subject is a man, a woman, a child, not a data subject. So I took a much more practical down to earth approach. Our slogan was that we are here to help organisations who want to get it right, but we'll be tough on those organisations which don't want to get it right, and I think I started, quite soon after I became Commissioner, in our speeches, our strategies, annual reports and so on, to say: this is going to be the new approach to data protection. Q. But again, taking things fairly shortly after the length of time you've been giving evidence and at this time of the day, summarising, you must have been fairly pleased, were you not, with the response of the press to your attempts to promote a change in working methods and attitudes? A. Well, we're not going to go over all the same ground today clearly. Q. No, I don't want to. A. But it seemed a tough fight at the time and it didn't seem we were making very much progress. But I suppose my meeting with Mr Dacre, which I mentioned earlier -- Q. Yes. A. He was very, very forthright on that occasion. I give him credit to that and he said, "You've really told us things we didn't know about before. We're now really cleaning up our act." Q. Yes, and in , you published two reports and you yourself have told this Inquiry in your statement that since , until you left the office in , you really had few or no complaints, I think, regarding the press; is that right? A. I think that's broadly right. There may be one or two, but not many. Although I have to say if I can say now, your clients' witness statement said they were still using Mr Whittamore in . That really surprised me. It may have been a mistake but I hope it was a mistake. Q. Deal with the evidence in a minute. I'm going to come to what happened with Associated. But as far as you understand it -- and we'll hear from Mr Graham, you've mentioned the evidence he gave to one committee -- there's relatively little cause for complaint about the press since he's taken office in ? A. That's right, and that's why I would love the press to say now: "Let's bring the stronger sanction into effect right now." If the Daily Mail were to write an editorial next week saying, "All this outrageous activity going on, we need a tougher approach", I suspect the government would move within about three weeks. And it would be wonderful to have the press -- if we hadn't mentioned the press in our reports, we might have achieved our objective rather sooner. Q. Yes, but -- A. That may have been a big mistake on our part, to have included the press. If we had just focused on all the other activity and said that people are being damaged by this activity, I suspect we would have had our law passed in without any difficulty and it would be wonderful if your clients would support such a campaign right now. Q. Well, I'm sure they hear what you say. The fact of the matter is you've already, I think, agreed that there can be a principled approach on both sides of the argument -- A. Yes. Q. -- in relation to imprisoning journalists for preaches of data protection. The fact of the matter I want to focus on, please, is this: what actually happened after the publication of reports. I represent, as you know, Associated Newspapers. You do know, don't you, that from Mr Dacre banned the use of private investigators by anybody working for Associated Newspapers? A. I don't know the exact dates, but when I met him in , he told me he had taken quite a few steps in his own group and he understood elsewhere and that sort of training, changing contracts for editors and journalist he is, and so he was giving me the aggression then that quite serious steps had been taken to stop this. I can't recall being told specifically a ban on investigators, but I think that's come up in the documentation. Q. One other thing which you might hope to see, I suppose, in an organisation, is to introduce into new contracts of employment a provision that the employee cannot breach or must not breach the Data Protection Act, as one way of enforcing it? A. Yeah. Q. And to send letters to existing staff notifying them of the importance of adhering to the Data Protection Act and requiring them to sign it to confirm their understanding of the letter. Those are the kind of steps you'd expect to see; is that right? A. Yes. I mean that's all very welcome news. Q. Did you know that those were steps that were taken by Associated Newspapers? A. Well, I mentioned the meeting I had with him after the battle had finished, as it were, in June , and he shared that sort of approach with me, and his speech at the end of at Bristol said the same sort of thing and I really did genuinely think there they are cleaning up their act. Q. Yes, he said to the Society of Editors that the industry had been warned. A. Yes. It had taken quite a long time, it had been a bit begrudging and a battle, but I did feel at the end of the day we had been vindicated in our approach. Q. Now, I heard what you said obviously in relation to the Press Complaints Commission, but the fact of the matter is that in , it changed its code of practice to include a provision requiring, as a rule of professional conduct, compliance with personal data protection? A. Well, I think the amendment was more that digital information was included in the definition of stuff which should not be accessed by subterfuge, and I welcome that and there is a letter on record welcoming that. I still felt it was rather buried away. It wasn't quite highlighted in the way I would like it to have been, but I do accept that the code did finally include something explicitly addressing this issue. Q. Of course, Operation Motorman and Mr Whittamore's activities and the information he was gathering between the years and are almost ten years ago. But would you agree with this: that the fact of the matter is that since the publication of your report in , this is a story of the press generally responding very well to your approaches for them to change attitudes and practices? A. Well, I don't want to put out a hostage to fortune there. I'm not not engaged in these matters directly now but I've noted and shared with you what the current Commissioner has said. I hope that is the case. I hope it lasts and becomes permanent. But we've had last-chance saloons before and I can't be totally confident it's going to prevail indefinitely. Q. I'm not asking you to look forward. I am asking you to look back. A. But -- Q. Whilst you were Commissioner from onwards after the publication of your reports, what I said would be true, wouldn't it? A. Certainly by the time I retired in , my impression was that this was being taken a great deal more seriously across all the press, and I welcome that and the sort of steps you've mentioned I was being told were put in place. I haven't checked, nor has my office, but that is the encouraging signal. Whether that's sufficient to eliminate the practice forever, I can't tell you. MR CAPLAN: Thank you very much. A. Could I just raise this question, if I may, because I was very concerned to see Mr Whittamore being used in , two years after the trial. LORD JUSTICE LEVESON: Well, that's a matter which we may look at. A. I raised it my statement. That's why -- LORD JUSTICE LEVESON: You raised it. Mr Caplan will deal with it to such extent as he feels is right. A. Sorry. LORD JUSTICE LEVESON: But I'm looking at a much broader picture, as I'm sure you appreciate. Thank you very much. Thank you, Mr Thomas, that's a very long ordeal -- A. Sir, there was one matter I was told I would have a chance to -- I understood I had a chance to share with you? LORD JUSTICE LEVESON: What's that? A. I was very, very concerned indeed at the reporting of Monday's hearing in the Independent newspaper on Tuesday of this week. It came very close indeed to accusing me of misleading Parliament. It quoted the legal advice which was revealed here on Monday, which was the advice, which said there may have been a case against journalists, and the article in the Independent on Tuesday said that this contradicted what I had told Parliament. When I went to Parliament, I was relying upon the advice, which has come out today, and I did want to place on record my very strong concern indeed at the misreporting of my position. I may have to pursue this further, but I did alert the journalist yesterday that I would be addressing this matter today, and I cannot tell you how important it is to me that out of this Inquiry, I have been accused of misleading Parliament, a very serious and grave matter. I deny that entirely. LORD JUSTICE LEVESON: Yes. You will appreciate, I think, that I'm not entitled to enquire -- A. I'm not asking any more at all. LORD JUSTICE LEVESON: Thank you very much. Thank you. Right, I don't think we'll be very long. Mr Jay, Monday? MR JAY: Monday, yes, two matters. The first witness is Mr Mazher Mahmood. The proposal which we have made and which we think is appropriate in relation to his evidence is that there should be no filming of it. It follows that there will be no transmission onto the simultaneous web feed or to the marquee. But there's no reason we see why his evidence cannot be audio streamed. However, the public and press should be excluded from the Inquiry room whilst he gives his evidence. We think Mr Mahmood may be asking for somewhat more, but the protections which we have just proposed we believe are entirely sufficient. LORD JUSTICE LEVESON: Yes. Do you know about this, Mr Rhod -- SPEAKER: I know about this. LORD JUSTICE LEVESON: Yes? SPEAKER: And the arrangements have been agreed between the Inquiry team and ourselves. LORD JUSTICE LEVESON: So you are content with what Mr Jay just said? SPEAKER: Yes, we don't want any filming and we don't want any members of the public or press. We are content for the core participants and lawyers to be here, as in HJK's case. LORD JUSTICE LEVESON: Yes, but it will also be audio. SPEAKER: Yes, we're content. LORD JUSTICE LEVESON: Thank you very much indeed. MR JAY: Sir, there's one other point. Would you be prepared to sit at .to deal with possible issues which will pertain to the following day's evidence? I will be prepared to sit at .. It's just as well it's not tomorrow, having sat a fair day today. Thank you very much. I hope -- MR GARNHAM: Can I delay you seconds? LORD JUSTICE LEVESON: That's all right. MR GARNHAM: I want to draw your attention to the fact and to ensure you have had sight of some written submissions we have put in in relation to the evidence next week. I also want to refer to them so that they're on the record, so the fact that the submissions have been put to you by the MPS and the CPS is recorded on the transcript. I don't want to develop them. They're there to be read. LORD JUSTICE LEVESON: Thank you very much indeed. Right. Monday. Thank you. (The hearing adjourned until .am on Monday, December ) Transcript-of-Afternoon-Hearing-9-December-2011.txt
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-8-December-2011.txt December (.am) MR BARR: Good morning, sir. We're going to be calling evidence today from seven learned academic witnesses. We're going to be adopting a different format today from that which we've followed thus far. I believe the term is called hot-tubbing. LORD JUSTICE LEVESON: That's in Australia. It doesn't have to be called that here. MR BARR: We may have to think of an English term for the process, but what is going to happen in practice is four of our academic witnesses are going to be called this morning and three this afternoon. Both Ms Patry Hoskins and myself are going to be questioning, and the idea is better to extract the wisdom and learning of these witnesses and to debate some of the issues which it is hoped will assist you, sir, in your task. LORD JUSTICE LEVESON: Yes. I've been provided with a formidable body of material. I can't pretend I've read every word. A lot of it deals with the courses that are being run in educational establishments that deal with ethics, which is interesting but not of course at the centre of the issues that I'd like to discuss. I'm pleased for the background, but I'm sure you'll appreciate that having got what's happening on the ground, for the next generation of journalists what I need to know is how it then works out and what I can do about the problems that I'm required to address. MR BARR: Indeed, sir. There's no doubting the industry that's been put into the statements and exhibits which have been produced by the witnesses. The statements are, of course, going to be taken as read. There may be a few questions at the start to paint the landscape of the courses, but we intend to spend most of the sessions dealing with the nub of the issues that confront the Inquiry. LORD JUSTICE LEVESON: Thank you very much indeed. MR BARR: Thank you, sir. Might I now introduce the witnesses that we are going to be hearing from this morning. They're sitting in alphabetical order, to assist those who do not know them well. LORD JUSTICE LEVESON: I think I do, because I've certainly heard from at least three of them before, but do so. MR BARR: It's Professor Steven Barnett on the left, from the University of Westminster, Professor George Brock from City University, Professor Brian Cathcart from Kingston University and Angela Phillips from Goldsmiths University of London, sir. LORD JUSTICE LEVESON: Thank you. MR BARR: If I could start by asking Professor Barnett, could you give the Inquiry your full name, please? PROFESSOR BARNETT: My full name is Steven Julius Barnett. MR BARR: Could you confirm your place of work? A. University of Westminster, Regent Street, London. LORD JUSTICE LEVESON: Just before we go on, I'm open to suggestion on this, but I'm reminded that none of the witnesses have taken the oath. It may be that it's not appropriate, but I just want to make sure that we clarify the basis upon which we're proceeding. MR BARR: Sir, I'm in your hands. I think it might be better for formality that the evidence is given on oath. I was certainly proposing to adduce the witness statements so that they can be confirmed and posted on the Internet for all to read. LORD JUSTICE LEVESON: Yes. Do any of you have any objection to that? No? Right, let's do that. PROFESSOR STEVEN BARNETT (affirmed) PROFESSOR GEORGE BROCK (sworn) PROFESSOR BRIAN CATHCART (affirmed) PROFESSOR ANGELA PHILLIPS (affirmed) Questions from MR BARR MR BARR: If we could resume, Professor Barnett, is it right that you are the Professor of Communications at the University of Westminster? PROFESSOR BARNETT: That's right. MR BARR: And you've been teaching in the University's School of Media, Art and Design for years? PROFESSOR BARNETT: That's right. MR BARR: And you've had a personal chair since ? PROFESSOR BARNETT: That's correct. MR BARR: You tell us that the university's media department is the oldest in the country? PROFESSOR BARNETT: That's right. MR BARR: And you're also an external examiner for the journalism course at the University of Kent? PROFESSOR BARNETT: That's right. MR BARR: Over the last years you've directed over research projects? PROFESSOR BARNETT: Yes. MR BARR: And you are currently acting as specialist adviser to the House of Lords Select Committee on Communications for its inquiry into investigative journalism? PROFESSOR BARNETT: That's right. MR BARR: You've been a member of the National Union of Journalists for nearly years? You were a columnist on the Observer? PROFESSOR BARNETT: That's right. MR BARR: And you have been an editorial board member of the British Journalism Review since its inception in ? PROFESSOR BARNETT: That's right. MR BARR: And you have published a number of books and articles on journalism? PROFESSOR BARNETT: That's right. MR BARR: And media policy. Professor Brock, if I could ask you -- LORD JUSTICE LEVESON: Just before we go on, you've not yet introduced his statement, so we'll do it when his statement comes to be considered, because of course Professor Barnett spoke at one of the seminars. Yes. MR BARR: Professor Brock, could you confirm your full name, please? PROFESSOR BROCK: George Laurence Brock. MR BARR: And you are Professor and Head of Journalism at City University London? PROFESSOR BROCK: That's correct. MR BARR: You joined the university in ? PROFESSOR BROCK: Yes. MR BARR: Before that, you had worked since at the Times in various posts including Comment Editor, Foreign Editor, Brussels Bureau Chief, Managing Editor and Saturday Editor? PROFESSOR BROCK: That's correct. MR BARR: Before that, you were a reporter on the Yorkshire Evening Press in York? PROFESSOR BROCK: Yes. MR BARR: And subsequently you spent five years as a reporter for the Observer? PROFESSOR BROCK: That's right. MR BARR: You are an ex-president and current board member of the World Editors Forum? PROFESSOR BROCK: Yes. MR BARR: And you're on the board of the International Press Institute and chair its British Committee? PROFESSOR BROCK: That's right. MR BARR: You also write a blog on journalism, the link for which is set out in your witness statement, and you write in the Times, the British Journalism Review and the Times Literary Supplement? PROFESSOR BROCK: Yes. MR BARR: I turn now to Professor Cathcart. Could you give us your full name, please? PROFESSOR CATHCART: Brian John Cathcart. MR BARR: And you were Professor of Journalism at Kingston University, is that right? PROFESSOR CATHCART: I still am. MR BARR: You still are, and have been since ? PROFESSOR CATHCART: Yes. MR BARR: Before that, you were a senior lecturer for two years? PROFESSOR CATHCART: Yes. MR BARR: Your career in journalism began with a graduate traineeship at Reuters? PROFESSOR CATHCART: Correct. MR BARR: You remained at Reuters as a correspondent between and ? PROFESSOR CATHCART: That's correct. MR BARR: You then joined the launch team of the Independent newspaper as a foreign news sub-editor? PROFESSOR CATHCART: I did. MR BARR: And then you were the launch foreign editor of the Independent on Sunday in and you later became the paper's deputy editor? PROFESSOR CATHCART: That's right. MR BARR: You left in to work as a freelance and to write books? PROFESSOR CATHCART: Correct. MR BARR: They include "Were You Still Up for Portillo?" in , "The Case of Stephen Lawrence, "Jill Dando: Her Life and Death" and "The Fly in the Cathedral". From to , you were the assistant editor and also media columnist of the New Statesman? PROFESSOR CATHCART: Correct. MR BARR: And in , you were the specialist adviser to the House of Commons Select Committee on Culture, Media and Sport in the inquiry which produced the report "Press standards, libel and privacy". PROFESSOR CATHCART: That's correct. MR BARR: At Kingston you are Director of Research in the department and you've led two research projects in association with the Natural History Museum? PROFESSOR CATHCART: Correct. MR BARR: Ms Phillips, if I could ask you, please, to confirm your full name to the Inquiry? MS PHILLIPS: My name is Angela Phillips. MR BARR: And you currently work at Goldsmiths College at London? MS PHILLIPS: That's right. MR BARR: You run all the print journalism programmes? MS PHILLIPS: Yes. MR BARR: The journalism MA and you co-founded the innovative MA in digital journalism with the college's department of computing? MS PHILLIPS: That's right. MR BARR: You've been a journalist for over years, starting in the alternative press in the s and moving on to work for national newspapers, magazines, television and radio, both the BBC and independents? MS PHILLIPS: That's right. MR BARR: You trained initially as a photographer and worked for several years as a photo journalist before moving mainly into print. You were awarded an MA in media and cultural studies in and you currently freelance for the Guardian and you contribute to Comment is Free on the Guardian blog site? MS PHILLIPS: Yes. MR BARR: And you're a participant in Goldsmiths' Leverhulme Media Research Centre? MS PHILLIPS: That's right. MR BARR: Thank you. Can I now turn to ask you formally about your witness statements? Could I ask you first of all, Professor Barnett, are the contents of your witness statement true to the best of your knowledge and belief? PROFESSOR BARNETT: Yes, they are. MR BARR: And did you attend the seminar earlier this year? PROFESSOR BARNETT: Yes, I spoke at the third seminar. MR BARR: Those comments at the time were made on the basis that they would not form formal evidence. Would you like them to be treated as formal evidence for Lord Justice Leveson's purposes? PROFESSOR BARNETT: Yes, please, I'm happy -- LORD JUSTICE LEVESON: Is there anything in them that you've now -- we'll doubtless come this, but I'd be very keen to know if there is anything in it that you've now changed your mind about or want to expand upon during the course of the day? PROFESSOR BARNETT: I'm very happy for that to be included as spoken at the time. LORD JUSTICE LEVESON: Thank you very much. MR BARR: Professor Brock, the same questions. Is your witness statement true and correct to the best of your knowledge and belief? PROFESSOR BROCK: Yes, it is. MR BARR: And did you speak at the seminar? PROFESSOR BROCK: Yes, I spoke at the third seminar. MR BARR: Are you content for those contributions to the seminar to be received formally in evidence? PROFESSOR BROCK: Yes, I think that's fine. There's a good deal more to say on the subject but -- LORD JUSTICE LEVESON: I'm sure there is -- PROFESSOR BROCK: -- it stands fine as it is. LORD JUSTICE LEVESON: -- and I'm very keen for you all to have the opportunity of saying what is to be said on the subject. Let me make it abundantly clear, this has been your -- not to say your life's work, but within your DNA for a very long time and it isn't part of my DNA as yet, but it is becoming so, and therefore I'm very keen for your help, and although we'll formally discuss various of the issues this morning and during the course of the day, I wouldn't want you to think that your contribution should then be considered at an end. I'd be very keen to hear your reflected views as we get more into the evidence and hear more so that I am better informed about what can be done for the future. It's critical, and I've said this publicly before and I don't mind repeating it -- I know Professor Brock's getting this, but it's really a common comment -- to ensure that whatever system, if there is to be a change, is understandable, is acceptable to all and will work. You may have observed that I said during the course of the evidence that I was absolutely opposed to producing something that was only of interest to you as professors of journalism in years to come as an interesting sideline which produced a document that simply sat on a shelf. Not that I'm trying to deprive you of work to do in the future, but I am very keen that this enormous expense produces something that is sensible, worthwhile and workable. Right, sorry to interrupt you, Mr Barr. MR BARR: Not at all. Professor Cathcart, are the contents of your witness statement true and correct to the best of your knowledge and belief? PROFESSOR CATHCART: Yes. MR BARR: And are you content for your contributions to the seminar to be received formally in evidence? PROFESSOR CATHCART: Yes. MR BARR: Ms Phillips, I understand that you were one of a number of contributors to the Goldsmiths witness statement, but is it true to the best of your knowledge and belief? MS PHILLIPS: Yes, it is, and I just wanted to say that Professor Curren had originally been asked to give evidence but we worked together in the Leverhulme research group and it was felt that as I teach practical journalism, that I might be of more use to you today, so that's why Professor Curren isn't here. MR BARR: We're delighted to get the collective benefit of Goldsmiths experience today. Are you able to confirm that the Goldsmiths contribution, if I put it that way, to the seminar can be received formally in evidence? MS PHILLIPS: Absolutely. MR BARR: Before we leap into the meaty issues, can I start with a little bit of background about the role of university training for journalists? We sense from the witness statements that there has been a trend, perhaps over the last two decades, where university training has grown considerably for journalists such that it is now the most frequently delivered training for journalists and has replaced in-house training as the mainstream entry into the profession. Is that right? MS PHILLIPS: It's slightly more conflicted than that because quite a lot of it's postgraduate, quite unlike, for example, in America. Although there are undergraduate journalism programmes, we also have, certainly City and Goldsmiths, all of us, I think, have important postgraduate journalism programmes, so that quite a large number -- the last research I saw said that something like per cent of people going into journalism in I think it was already had a postgraduate qualification of some kind, so I think it's quite important to recognise that there are two different levels. There is undergraduate journalism and there's quite a lot of postgraduate journalism and those journalists will have had a different kind of first degree. PROFESSOR BROCK: But nevertheless, if I can just add, it is broadly absolutely right to say that because there is less in-house training going on, more of it has happened in universities. The traditional way in which, for example, national papers were staffed was by people who graduated in the informal sense of the word out of regional papers, while somewhere around the s that flow just dwindled to a trickle, and they weren't being trained and they weren't emerging in such numbers and they weren't being so well trained, and that boosted applications for university courses, and indeed the creation of university courses too. MR BARR: And if -- LORD JUSTICE LEVESON: Hang on. You have to speak. If you want to speak, just crack on. PROFESSOR BARNETT: I just wanted to add, to add to what George was saying, I think the broad trend is undoubtedly away from training on the job, on the ground, towards university courses, but the point that I would like to emphasise, as far as I can tell this is happening on an essentially piecemeal basis. There is no coordination of the way in which this is happening. It is a process where on the one hand you have in particular local newspapers closing down their schemes because they can't afford to run them, or even the national schemes being reduced in size, and at the same time, as George said, universities picking up the slack, but not in any kind of coherent or organised way. It's simply responding to that kind of demand, that there are people, students, who want to study the media and go into journalism, but are not finding the routes in that were traditionally there. MR BARR: If no one else want to contribute on that opening question, could I move on to pick up from that and ask: is there any difficulty with the supply of budding journalists of sufficient calibre or not? PROFESSOR BARNETT: My answer would be no. I think there is actually almost an abundance of people, which is very gratifying, who are keen, eager, quite idealistic about their view of what journalism can do, what they can achieve as journalists, the role of journalism in a democratic society. So I don't know if my colleagues would agree or not, but my sense of it is that we certainly have no shortage of good applicants who are keen to study media and become journalists. PROFESSOR BROCK: We certainly have no shortage of applicants. In terms of quantity and quality, I don't think there's a problem if you're talking about the national press and what -- in the broad terms, the BBC, Sky, employers like that who tend to broadcast across. If you're talking about the regional newspapers, I think it's much harder for them to find trainees. The relative pay has gone down very much more sharply. They don't train people. There isn't a career progression to higher up in the business, if I can put it that way, and therefore the quantity and quality of people going into the regional press has changed a lot, and not for the better, broadly speaking. PROFESSOR CATHCART: I would think there's something to add about the regional press there which is they're actually shrinking their staff numbers, not increasing them. They're not big recruiters these days. In response to your central question, there is no shortage of very, very bright young people wanting to be journalists. MS PHILLIPS: I would absolutely agree with that. We get amazing students at Goldsmiths and we don't tend to -- they haven't ever tended to go to the local newspapers, or to local or regionals, they've tended to go to nationals and magazines, which is probably fortunate given what's happening at the local level at the moment. LORD JUSTICE LEVESON: Before you go on, can I go back to the question you answered a moment ago. Is there a call for a requirement for a common standard across the universities? Or is the diversity of the courses you offer and therefore perhaps the varying standards -- and I'm not going to go into the debate -- of the training that your undergraduates or your graduates receive of value or not a good idea? Is my question sufficiently clear? PROFESSOR CATHCART: I would say that one of the virtues, as we would see it, of the system is that it's quite competitive. You want students to come to your university and like the look of your course. You make it as -- in our case, as practice-oriented as in a sense you can, within the confines of a university. You want to give them a really good preparation, and you promote that and we compete. That's the university model, as it were. MS PHILLIPS: And good students do a lot of research before they decide which courses they're going to apply for, and they're very sussed. They do know the differences between them. And when they come to interview -- and I don't know about the others, but we interview every single student coming into our postgraduate courses -- they're pretty clear about why they're making the decisions they're making about which courses they want to go to. LORD JUSTICE LEVESON: So the diversity is positive and a good thing? MS PHILLIPS: I think absolutely, yes. PROFESSOR BARNETT: Just to add to that, we're very old-fashioned in that we interview every student coming onto the undergraduate course -- there aren't very many universities left that still do that -- and have exactly the same experience, that they've done their research, which is much easier now on the Internet, they understand the variety of courses available. In our case, it's per cent practice, per cent theory, which I think is the same as Goldsmiths. MS PHILLIPS: Yes. PROFESSOR BARNETT: And they appreciate that they're going to have a slightly more theoretical approach to the subject at Westminster or at Goldsmiths than perhaps at other universities which are more vocational. That's part of the mix. LORD JUSTICE LEVESON: And that's good? PROFESSOR BARNETT: Absolutely. PROFESSOR BROCK: There is a very large variety, or rather I think it would be better to say there is a spectrum across which courses run, with theoretical at one end and practical at the other, and different schools teach in slightly different ways. Their mixture of the two will be different. I certainly haven't ever heard a call for consistency of -- LORD JUSTICE LEVESON: No, I'm just asking the question. PROFESSOR BROCK: But it was your first question and I haven't heard it. There is a separate issue, which I think we're likely to get asked about, about the accrediting organisations, but I won't get into that right now. LORD JUSTICE LEVESON: That's what it leads up to. MS PHILLIPS: The industry is so different. There are some courses that are far more populist in their approach, they are both more vocational and more populist. And our postgraduate and undergraduate students are quite different in the kind of people they are and what they are interested in. So at postgraduate level we tend to get students who are either hoping to get into the nationals or into business magazines or the sort of higher end of the magazine sector and they know that's the kind of students who come to Goldsmiths, so they are selecting a course that's going to be a bit more -- going to have a bit more of an academic -- be more critical than maybe another kind of course. LORD JUSTICE LEVESON: As Professor Brock has identified, my question leads on to the whole question of accreditation, which we'll come onto at some stage. Just while we are talking about the subject. Right, sorry. MR BARR: Indeed, accreditation was the next issue I was going to introduce. We've read in the statements that there are a number of accreditation bodies and some of you have courses accredited to more than one body, other courses accredited to one body and the observation is made that there is no over-arching organisation to the delivery of content of academic training. So could I ask, and I'll start with you, Professor Barnett, simply because you're on the left and perhaps we can move across, is there any difficulty with accreditation? Would it be better to have something more standardised or is the system working now? PROFESSOR BARNETT: Is the system working? I suppose it depends on what you want as your ultimate objective. I suppose we'll come -- I made it clear in my evidence that I actually think it's what happens once you get into the newsroom that is the issue, rather than the training, but -- and I think that's a separate problem. MR BARR: We'll come to that. PROFESSOR BARNETT: In terms of the training itself, because I teach on the theory side, I asked my practice colleagues about this, they are fairly clear that the NCTJ, the National Council for the Training of Journalists, is regarded as slightly inflexible and is not necessarily an appropriate accreditation to have. It doesn't actually help. It produces a sort of a narrowness in course delivery which we didn't want. Whereas the broadcast equivalent, the BCTJ, is rather more flexible and we are accredited to the BCTJ. So I think it depends essentially at a local level for each of us what we want to achieve and to what extent it fits our own kind of course aims and diversity. It comes back to the point, I think, about diversity and for some universities it fits, for some courses it fits, for others it doesn't. MR BARR: Before I throw that question open to our other witnesses, perhaps I could invite you to focus on ethical training and whether there ought to be any over-arching accreditation of ethical training or whether it's best split as it is at the moment. Any thoughts on that? PROFESSOR BROCK: It might in theory be better to have an over-arching body. I think in practice journalism in so many of its aspects is changing so rapidly that that would really be quite difficult to do. The situation that Steve was describing just now, we're in the same position at City. We are not accredited to the NCTJ and for broadly the same reasons as Steve's colleagues decided, so I won't labour the point, it's too rigid, it's too difficult for us to operate, and we did not think that it would improve our courses by doing it. And that continues to be the case and we keep that under review but we are in the broadcasting one and we're also in the Periodicals Training Council. I think that however journalism is changing so rapidly that an over-arching or standard on organisation, even if you were just thinking about ethical training, would be extremely difficult to do. And given the state of training as I see it, I think that competitive plurality, if I can put it that way, seems to be working effectively. And therefore I don't think that -- it would be a disproportionate effort to try and produce an over-arching organisation. PROFESSOR CATHCART: Yes, I agree with George about the over-arching quality. I think we at Kingston have an MA that is accredited to the NCTJ and we did that because we were setting up a -- our focus is on print or on written journalism, and we don't teach broadcast at all and I think our feeling was that this was the appropriate way to teach journalists, teach young journalists to get them jobs in the local and regional press particularly, which tend to require NCTJ qualification. So we married the two, the degree and the NCTJ, now the diploma. It is a difficult -- it's a difficult MA, it's a very demanding MA. When we recruit, we interview them all, we warn them that piling the NCTJ qualification work on top of the university -- the demands of a university MA degree is very, very demanding. So, you know, these are students who can't, for example, or find it extremely difficult to hold down, you know, part-time jobs outside their degree as students often have to these days. It's tricky. But I have -- I mean, I have been critical, I was critical at the seminar of the NCTJ in the field of ethics because it is effectively a corner of the teaching, of the requirement of the NCTJ diploma, a small corner of it that addresses ethical questions. I'm sure that every teacher who delivers an NCTJ course everywhere in the country teaches it in an ethical manner, but the council itself does not place the stress on ethics that I certainly would like to see and I think that's a pity, but it's also a reflection of the NCTJ being the servant of the industry. MS PHILLIPS: Absolutely. PROFESSOR CATHCART: And the industry's priorities not being highly ethical, shall we say. They have not passed down from on high a demand to the NCTJ to deliver high standards of ethics teaching. MS PHILLIPS: I looked at the NCTJ when I started the Goldsmiths MA in the mid-s and I decided not to apply for NCTJ accreditation for much of the reasons that we've heard so far. I felt it was far too narrow and it positively prevented a postgraduate course from looking at the industry or in any way interrogating the job of a journalist. The idea is because basically the NCTJ is run by the industry, it seeks simply to imprint industry ideas on teaching. It seems to me that at postgraduate level, young people should be asked to think about what journalism is and what their role as a journalist would be and very particularly to think about the power that journalists have once they are actually working, so that we at Goldsmiths, we really think that theory and practice need to work together and that ethics needs to be part of what you do from the moment students come in the door because they need to be constantly challenged with ethical questions. If you put the straitjacket of an NCTJ, very kind of nuts and bolts, it's very tick boxy. If you put that straitjacket on top of a postgraduate course, I felt you would actually be stopping students from thinking about what they were doing and we like to think that what we do at Goldsmiths is encourage people to think. It's very importantly part of what we do. LORD JUSTICE LEVESON: Is a fair summary of that that you're not focusing on what was done yesterday as necessarily correct; you're actually requiring people to think about behind that question and ask: what should we be doing tomorrow? MS PHILLIPS: You couldn't have put it better. That's what I say -- as my students leave to go into the world, I basically say at the moment everything's really difficult and really hard and jobs are scarce, but you are going to be the journalists of tomorrow, and what we've taught you will stand you in good stead for the future, not the past. That was the other problem I always had with the NCTJ, that they were teaching too old regulations. We started with a multi-platform postgraduate course in the mid-s. The NCTJ didn't have a course that would have fitted that. We would have had to drop most of it. But we are Periodicals Training Council accredited because they have a completely different approach. They come along and say, "Let's see what you're doing and whether it's good enough for us", and that's a much better way of accrediting courses because it allows many flowers to bloom. It means that we can all be different. The fact that we do have somebody coming along and saying, "You're different and we like it", rather than, "You're different and you're not doing what we tell you to do". PROFESSOR BARNETT: In fact, accreditation on that basis would be quite easy. MS PHILLIPS: And much cheaper. PROFESSOR BARNETT: All accrediting bodies would need to do would be to ask for the course content details and see to what extent ethics form an important component of the various modules that are being taught. In our first year course, the first three lectures that first year students have are all about ethics and regulation. It is an integral part of the introduction to journalism. But there is no ethics module. It is like a stick of rock, it goes through virtually every one of the modules that is being taught at the discretion of the individual lecturer. But it would be quite easy to actually accredit on that basis by seeing to what extent those components are contained within existing courses. PROFESSOR BROCK: Can I just stress that we are adapting courses all the time for the changes in the business. We've just introduced a virtually compulsory module in our teaching which we've called entrepreneurial journalism. This is not about ethics but what it does is teach young journalists what it's going to be like if they find themselves, say, in a small Internet start-up. If they go and work in a small Internet start-up, that may not be regulated by anyone, or it may be regulated by someone. It will vary. And therefore you have to have a basis of the ethics teaching which is independent of the machinery that they may encounter, or the circumstances they may encounter because they are -- this is the point I'd really like to try and get across -- changing very rapidly. MS PHILLIPS: I would absolutely agree with that. PROFESSOR CATHCART: I would think -- all of us, I'm sure, would agree that what we're trying to produce is not just journalists but reflective journalists, who think about what they're doing, who ask the question: why do I do this job? Is this really journalism? Is this the right sort of journalism to be doing? Am I doing it in appropriate ways? MR BARR: If everybody has said what they'd like to say about that topic, I'll move on. I'm going in a moment to move to the question of how at an academic strange you can possibly prepare a student for the realities on the ground, but before we go to that theme, given your somewhat lukewarm reaction to the accreditation schemes that exist, could I ask you this practical question: do any of you feel that there is insufficient emphasis on ethical training at the academic stage? PROFESSOR BARNETT: No. My short answer is no. Certainly those courses that I'm involved with, those on which I have been an external examiner, what I know of the courses of my colleagues, I think it could be -- even if we're being as self-critical as we possibly can, I would find it quite difficult to identify courses where there is insufficient emphasis on ethical training. That for me is not the issue, I'm afraid. PROFESSOR BROCK: I'd broadly endorse that. I haven't inspected every single course that comes under these headings, but the good ones that I know about, the quantity of ethical teaching is not the issue. MS PHILLIPS: I teach one of the ethics lectures, or a couple of ethics lectures, and one of the thing I think we're up against all the time is that we are teaching students to be ethical and knowing that they're going into an industry where they're going to be under constant pressure, and we have to make them aware of that as well. So we do show, or I do show examples of newspapers that have either sailed very close to the wind in terms of the PCC regulations or indeed have completely ridden right over the top, and we talk about why this happens and we talk about it in the context of the kind of extraordinary competitive pressures that the newspapers are under and what happens to young journalists when they go into the system. I feel you can't really teach ethics without teaching people about the commercial realities of journalism in this country, and I think that -- I'm sure we would all agree that actually young people come into journalism through training as very ethical young people. I think that's how they come to us and I think that's -- certainly as far as I'm concerned, that's how they leave us. PROFESSOR CATHCART: If I could just add one thing. I think it's worth drawing the contrast with the ancient time when I entered journalism, when certainly I received no explicit ethical training whatsoever. I went into -- as it happened, I worked in Reuters, in a highly ethical environment, as I started. I was fortunate in that sense, but the training I was given at Reuters did not include a single word about ethics. We have come a long way. MR BARR: If the position is that now your students are leaving having been fully taught about ethics, it takes us to the interesting question that was being introduced there: to what extent can you, in fact, prepare somebody for the moral hazards that they then go on to encounter in very busy, very pressurised working environments? Can you instill moral courage in your students? PROFESSOR BARNETT: For me, that's the problem. I've been very struck over the course of the last few weeks by some of the evidence from people who have clearly had to be extremely courageous to stand up and talk about what the reality is at the coalface. Richard Peppiatt is an obvious example. MS PHILLIPS: Yes. PROFESSOR BARNETT: I quoted in my evidence the editor of the Press Gazette who wrote -- Dominic Ponsford -- who quoted somebody from one of the red tops last year talking about when you have your editor shouting at you to get a story, you lose your morality. You don't really see celebrities as being real people, you see them as a product, as a story. We saw the same thing in the book published last year by Sharon Marshall which I've quoted as well. She's talking about ten years of working in the red tops. The pressures that you are under. And they are told in no uncertain terms that if they don't do what they are asked to do, there is no shortage of young, willing recruits who are waiting to take up the very valued and rare job that they have. So I'm talking specifically now about life, if you like, on the kinds of national tabloid newspapers where a lot of these problems have occurred. I think it's less stark and less problematic for the majority of journalists who are working on local and regional newspapers. I think there are different problems, which very much emanate from the economic pressures that they're under, and that's more to do with reliance on public relations, what Nick Davies has called "churnalism", having to turn the stories round very quickly, but the kind of ethical problems, which is what's driven this Inquiry in the first place, very much concentrated on the national tabloids, I don't think is something that you can actually teach someone to deal with. That is in the end a matter of your individual moral courage as to whether you feel you can afford to put your head above the parapet and say no. PROFESSOR CATHCART: In the context of a workplace where it is extremely hard to get a job in the first place. So you have students who knock around doing several unpaid internships. They will eventually get -- I think this is an important factor -- they will eventually get probably a short-term contract or some casual employment, paid employment on a paper. When you're in that vulnerable position and the editor says, "I want it done this way", you're not just making a moral choice, you're making a financial choice. MS PHILLIPS: Yes, I mean I obviously talk to my own students and I've also done some research in this field talking to journalists. I don't know whether that's going to come up later or whether you want me to talk about it now. LORD JUSTICE LEVESON: Keep going. Let's see how we get on. MS PHILLIPS: As far as my own students are concerned, we teach using a live website called the EastLondonLines which is like a local paper and it runs all year, so they are working very much in a real newsroom environment and dealing on a kind of daily basis with the fact that we now have quite a big audience so they get comments and they know what it feels like, they know that the people out there are real. I think that's one of the most important things, that they're not writing about people who are cardboard cut-outs, they're real human beings and they will respond. So we have an absolute, no questions asked, everybody has a right of reply on EastLondonLines and our students know that and they learn that, but I have to say that only two students to my knowledge have ever gone to work on one of the red tops from my course, which might be something to do with the students who arrive and where they go. In terms of my research, though, I have interviewed -- I did two research projects, one early in -- sort of and another one in and . They were fairly small samples and I was interviewing people right across the press. I wasn't specifically interviewing them about ethics. In the first wave I was looking at how ethnic minority journalists operated in mainstream newsrooms and I wanted to see how they dealt with stories that were quite often racist and how they were able to deal with that. The second wave of research was actually looking at how people were using new technologies to do research. The ethical questions came up almost unasked. In the first set of interviews, some of the people were under most extraordinary pressure because what seemed to be happening was that young ethnic minority journalists, often quite naively going into red top newsrooms, were actually being asked to do the stories that dealt directly with black and ethnic minority people, so that they were -- partly because they would be more likely to get an interview, and then they were finding that the work that they were writing was being twisted and changed, and they found it almost intolerable. The interesting thing about it is that as I look at the names of people on the newspapers, an awful lot of them aren't working where they used to work. I mean one in particular who I interviewed, talked -- he said at the end the trouble was that he'd come in from a local newspaper: "I was doing shifts on a daily basis. It was up to them to decide whether to renew my job the next day. So if I lost my job I wouldn't be able to pay the rent or anything like that, which probably isn't an excuse, but there was still that thought there." He, I'm quite glad to say, I've noticed is now working for the Guardian, so he no longer has to deal with that any more. And you find that quite a lot of these young people are coming in, working under extraordinary pressure and trying to find a way to get on to the more ethical newspapers because they don't want to do this stuff. But then a lot of them get trapped because the red tops pay much more, in a lot of situations, so they get trapped by the fact that they've got themselves into a situation where they have quite a good salary coming in and they kind of go with it. There was one particular person who said, who was at that time a news editor, who kept talking about how he kept meaning to leave, he was going to leave. As far as I know, he's still there. But a lot of people do try to leave and a lot of the kind of things that -- the kind of problems are at quite a low level. Somebody else said, a young woman reporter was saying: "They want attractive people in the paper, they want blondes, they want nice looking girls, the younger the better. You know that's what they want, so that's what you get because otherwise you'll either be in for a shouting or you'll have to do it again." I must add that when I interviewed these journalists, they were paranoid about me suggesting what newspaper they worked for because they were afraid that somebody might work out who they were. They could not speak publicly. The second wave of research that I did, which was, as I said, looking at Internet research -- incidentally I didn't hear any instances of phone hacking, but I was at that point talking mainly on the more upmarket press because I was simply interested in how people were using the Internet to do research, but again, while doing that research, people were talking about the extraordinary pressures they were under to simply repurpose, take stories from elsewhere which they might not necessarily even have checked, rewrite them, and you'd find people had stories that were going out under their bylines but they'd only written about three lines of. It had just been cobbled together through the day from a whole lot of different places. So to suggest that they would have any -- they don't feel they have any control over what eventually winds up either on the page, or certainly this was happening a lot on the Internet, that the Internet editions were -- you take a bit from this paper and a bit from that paper and you put it together and you make a couple of phone calls, and the next time you look at it a whole lot more had been added or it had been changed a lot. The other thing I found that was that at that particular time there was huge, huge commercial pressure to go online first, so that all the newspapers were moving towards the online first way of doing things, which meant working much, much faster, but they were also losing staff. At this stage, and I think it's reasonable to say that I was interviewing people in the Telegraph at this point, an awful lot of the most senior journalists, the ones who would be responsible for a very different kind of reporting which was much more thoughtful, which was much more led by specialists, were leaving, either under pressure or because they didn't like it any more, so that the whole layer of more senior, more seasoned, more knowledgeable journalists were quietly disappearing. I just drop that in because I think it probably was having some kind of effect. MR BARR: If I can ask perhaps our other witnesses -- PROFESSOR BROCK: Your question was to what extent does the teaching of ethics prepare people for what they will find in actual newsrooms? I think there are three quick things I'd say. Firstly, our training is -- I think the best training is very practical oriented. We do similar things to the things Angela has been describing, we're trying to shift the websites we produce to be out there that people can actually see, in other words they're produced in the real world and they have to manage all the risks and difficulties that that requires. I think that that brings ethical dilemmas home to people in a way that classroom teaching doesn't necessarily do. I think you can actually warn people, and we do tend to warn people, what they are likely to find in red top newsrooms. Not very many of our post grads particularly go to red top newsrooms but we will tell them what it's likely to be like. The last thing I would say is that wherever this is going to be, we try to have teachers who have experienced some of these dilemmas. You had evidence I think two days ago from David Leigh, who was giving you descriptions of the kind of dilemmas he does with the Master's students on the investigative journalism course that we run, and I think the more people actually live dilemmas, the more vivid it will become for people and that's the most effective form of teaching in my view. MR BARR: We've had an indication from Ms Phillips about the number of her students who go on to work for the red tops. Could I ask our other witnesses to give us some indication of the sort of proportion of your output, if I call them that, who go on to work for the red tops? PROFESSOR CATHCART: Red tops would be a small proportion. We're talking twos and threes in any year of output. I think one of the things that we're not mentioning here is that one of the big employers of university leavers is the business-to-business sector, is magazines and websites that serve the business community, you know, the sort of marketing world and so forth. That's a big employer and it dwarfs the uptake of the red tops. MR BARR: Is that the -- PROFESSOR BARNETT: Absolutely. One of the problems is that you try and keep in touch with students and some of them will start on perhaps a local paper or an online publication. A few years down the line, they might end up at a red top but by that time you've lost touch with them so you don't really get the feedback. I think the real issue for this Inquiry, and I know there's been an issue about anonymised evidence, but I do think there is -- there needs to be, I would hope, some flexibility given to those who are very keen to try and give a flavour of what life is like, but are really scared of being identified and putting their head above the parapet. LORD JUSTICE LEVESON: I'm very conscious of that problem, but let me just move it on a bit because, as you know, the Inquiry has been criticised for not having expertise from the very, very bulk market end of the business, and we're talking about ethics and the proper approach to journalism, which is obviously very important, but I am very keen to know to what extent there is an ability to help those who might want to work in the mass market newspapers, and we all know that we can talk about the Telegraph or the Guardian or these papers, and then the Mail or the Sun will say, "Actually, we sell many, many more copies", where the pressures are very different, as you've said, and how one gets to people who get into that business, or whether actually they're just a by-product of a different system. So actually you have two parallel routes into journalism, one through the universities and these very focused courses which I've seen about, and another through the gossip columnists and that side of an industry which nobody can pretend isn't important and doesn't sell newspapers. PROFESSOR CATHCART: I think from our point of view, we -- I mean, you simply try to straddle the -- if you can straddle a spectrum, you try to prepare students for any sort of journalism, in our case mostly written journalism, that they are likely to encounter and likely to need in the job market. Students will be drawn by their own tastes in various directions and they have teachers of a variety of experiences, as George has indicated, who bring, you know, practical knowledge of all of these markets. And I think the -- you know, our student -- our campus newspaper, which the students produce in their final year, our award-winning campus newspaper is -- it's newsy, it's tabloidy, so that the actual experience the students have in their final year of producing a newspaper which will be read by their peer group and indeed outside the university and, alas, by the university management, which is never very comfortable with it, is their experience is wide tabloidy. It's quite newsy and punchy. They're trying to attract the attention of their peer group. PROFESSOR BARNETT: I think implicit in your question is a really important issue, which is: are we in danger of kind of saying broadsheet journalism is wonderful but tabloid journalism is a problem? I don't think any of us would actually subscribe to that at all. There are elements of the way in which some red top newspapers in this country have behaved which are clearly undesirable and needs to be somehow prevented, but there is an art and a skill to good tabloid journalism that all of us, I think, would recognise, and which many students both feel they want to practice and we would encourage them to practice. LORD JUSTICE LEVESON: Yes, the example is the presentation of extremely complex issues -- PROFESSOR BARNETT: Absolutely. LORD JUSTICE LEVESON: -- in a visual, visually attractive and easy to understand way. PROFESSOR BARNETT: If you've ever tried to explain some kind of complex financial problem or around pensions reform, for example, in words in a kind of tabloid editorial, you'll know how difficult that is. It is a real skill. And someone who can manage that, either can learn it or just understands the nature of that skill, that's a very, very valuable thing to be able to do. And there are tabloid skills in terms of taking a story and looking at angles, human interest angles of it, whereas where broadsheets might look at the social policy implications, the economic implications, the policy context, et cetera, if you're looking for a really kind of clear human interest angle on a breaking story, the tabloids can often be the best way to get a real kind of live interest in that story. The issue is getting the best of that while avoiding those egregious excesses that we've seen over the last couple of years. PROFESSOR BROCK: I was just going to go back to your original question. I really don't think we should try to pretend, and I hope that I haven't, that the teaching of ethics is really the important influence on how people behave. How people behave is determined by the culture of a newsroom, basically. That's the fundamental influence on what people do. That culture is formed by a whole number of things: the competitive situation, how competition is understood, signals from the top, law and regulation, to mention only a few. And you can't -- I mean, you can tell people about what they might be about to face, but for me the central issue is producing incentives that will work, above all, in popular newsrooms, which popular newsrooms will actually sustain and make happen. I think I'm trespassing on the next bit of the discussion, and I'm opening a very wide ... but for me, that's the essence of the issue. LORD JUSTICE LEVESON: I entirely understand the point and agree with it. The discussion about what goes on in universities is a good run up to the wicket, but it isn't bowling the ball, is it? PROFESSOR CATHCART: It has the relationship you would hope over time that the people who shape the newsroom cultures have come from the -- you know, have had the sort of training and education which informs them in the necessary ways. That's the connection, I suppose. MS PHILLIPS: I do keep in quite close touch with my postgraduate students and know where they are, and we have had students go to the Mail training scheme and I feel fairly sure that if they felt that they were under pressure, that they would actually come back to me even after they'd left. So they are quite protective both of the learning environment and of the environment they're going into, but I have to say I'm always -- I remain worried about them, but I think that they've -- you know, the ones who have gone to the Mail have seemed to have -- they've been fine. I think we would all agree that good -- one of the things about the tabloids in particular is that they're really funny a lot of the time. That's why people read them. I don't think any of us would want to lose that. I mean, they have a role to play. I just happen to think that it's possible to be funny without being at the same time vicious, and I think a lot of what happens in the tabloids is vicious. I don't think we want everything to be the same as the Guardian, the Independent, the Telegraph and the Times. I think that would be really quite sad. But I do think we have to recognise that the culture in the newsrooms that are providing and producing those -- that light-hearted approach to the daily news is quite different. LORD JUSTICE LEVESON: I want to celebrate all that is good about every aspect of the newspaper, the print media. It's been commented that I've only been focusing on all the criticisms, but actually that's not -- that's to fail to understand the nature of the process that we're doing. We're not mixing it up. All the titles will have their chance to put their perspective forward, and I welcome that and I'm not in any sense seeking to beat down either the mid-market or the tabloid press at all. They do, in large part, an enormously valuable job for the very reason that we've just been identifying. The problem is going to be to try and find the line and the way of affecting approach so that we can remove what at least some people consider to be a problem in our output. MR BARR: Sir, thank you. I'm going to return to ethical issues later, but before I do that, I'm handing over to my learned friend. Questions from MR PATRY HOSKINS MS PATRY HOSKINS: Can I ask you a question that leads on from the discussion we've been having because a gap seems to have been identified. Each of you said that only a very few of your students go on to work for tabloids or red tops, and what I wanted to understand is whether you have a feel for where people who do -- new recruits to tabloids, where they do get their training and what's the basis of -- on what basis do they go into the industry, if they don't go through you? Can you answer that or is that not possible? PROFESSOR BARNETT: I think some of them do go and some of them start off -- there are still ways into journalism through starting off on your local paper at the age of or or . A lot fewer than there used to be or years ago. It's an interesting question. I don't know if there's any systematic research on where today's tabloid journalists did their training, but I suspect if we actually did a survey, we would find that their background and training was not dissimilar to journalists elsewhere. PROFESSOR BROCK: I would expect to find, if such research was done, a smaller proportion of people with postgraduate qualifications. I suspect that the people incoming to red tops are coming from small news agencies, regional papers, websites, particularly specialising in gossip, celebrity gossip. They'll come from a variety of places and they may come from no form of previous journalistic activity or training at all. Most journalism should take people in -- of whatever level of quality, should take in people who come from outside the normal streams because they will have special skills that are appropriate. It's very important to journalism that it does that actually occasionally. So I would expect the origins of people on the reporting staffs of red tops to be very mixed, probably. PROFESSOR CATHCART: I would agree. I think Steve used the word or described it as anarchic, that the recruit in the press generally is pretty anarchic, pretty scattergun or whatever, and I think you mentioned a variety -- these business-to-business magazines are often a starting place for journalists, they move on from there. I would stress again the degree that they rely on casual, short-term employment particularly at the beginning of a career but over quite long periods, so you'll have people working day to day or on a month contract or you will have a great many people contributing as freelancers. So they will be particularly obviously out of town, they will rely on stringers who may get one piece in every month or every two months, and on that basis, if they succeed at that, if they're any good at that, they might eventually get a job and, you know, move to London. LORD JUSTICE LEVESON: That only serves to underline the very pressure that you've just been talking about. PROFESSOR CATHCART: Exactly. PROFESSOR BARNETT: There's good evidence -- apart from Richard Peppiatt's evidence which certainly backs up what Brian was saying, in the current edition of the British Journalism Review which I would commend, and I will certainly submit it afterwards in evidence, there's a piece by a chap called Michael Williams who was deputy editor of the Independent on Sunday and now teaches I think at Central Lancashire, who talks about some of his students coming back to him and saying precisely that, that they are under a lot of pressure partly because there is a lot of casual work and that's what you need to do if you want to keep your employment. MS PHILLIPS: There's also a huge industry of people doing real life stories, which is basically finding people with a story to tell and ghosting those stories, because those are used both by women's weekly magazines and by the tabloids, and there are agencies that deal in that, so that people starting off can start off by doing that kind of work, and if you're good at it and you do enough of it, you'll get noticed and that's maybe getting to do a few shifts and that leads to something else and there's quite a drift backwards and forwards from that side of the magazine sector into the tabloids as well. LORD JUSTICE LEVESON: I might be trespassing on Ms Patry Hoskins' next question, but I can't help it. MS PATRY HOSKINS: That's all right. LORD JUSTICE LEVESON: It's quite difficult to see how to redress that because it's quite difficult to think of a way of saying, well, you shouldn't be employing people in this way because I just don't think that works, and therefore all one can do is to try to change the culture from within, it seems to me. PROFESSOR CATHCART: Exactly. LORD JUSTICE LEVESON: Please comment. PROFESSOR CATHCART: You come back to George's point, which is that it's about the culture of the people at the heart of the production system. LORD JUSTICE LEVESON: I'm merely agreeing. MS PHILLIPS: I think one of the ways which I was -- we'll come back to later, but I think one of the ways is we don't have an automatic right of reply in this country. We don't have a statutory right of reply, and a lot of other European countries there is a statutory right of reply. I think if there was a statutory right of reply, journalists would be more careful because if somebody is -- if you know that what you say, you -- if you know that you will always have to see immediately under your article the person you've spoken about having an opportunity to tell you, to tell everybody that you were wrong, I think that that might be one way of reaching right inside newsrooms, and I'm quite surprised that it's not an issue that has come up very much in these sessions, because it's quite standard in a lot of other European countries. LORD JUSTICE LEVESON: We have a long way to go, so you've just made it an issue. MS PHILLIPS: I have made it an issue, yes. LORD JUSTICE LEVESON: But do you have any views about that? PROFESSOR BARNETT: Yes, I assumed we were coming on to different forms of -- LORD JUSTICE LEVESON: I'm sure we are, yes. I'm sorry, I apologised before. PROFESSOR BARNETT: I think there are a number of ways in which newsrooms can be -- the culture of newsrooms can be changed simply by making it either uncommercial or inconvenient or very awkward both for individual journalists but more importantly for the publication they work for to encourage those kinds of practices. The sanction I particularly like is that -- and I think this happens in France -- not only does an offending newspaper have to publish a right of reply if they are inaccurate, but if the complaint is upheld, they then have to pay for an advertisement in rival newspapers advertising the fact that they got it wrong in their own newspaper. I like that idea, I think it's great. The idea of a newspaper proprietor having to fork out money to his rivals because one of his journalists has made a mistake, I think we might see a very, very sudden swift shift in -- LORD JUSTICE LEVESON: All right, I'm going to let Ms Patry Hoskins run this as she wants. PROFESSOR BARNETT: I think we might be moving a bit too far. MS PATRY HOSKINS: I promise we'll come back to regulation and various issues like that, but can I ask you just very briefly first about various bits of research that you have each undertaken? Ms Phillips, you've told us a bit about the research -- I'll come to you first because you've told us a bit about the research that you've undertaken, two different pieces of research. Can I ask you a little bit more about the first of the projects there. I think it was a project in, was it ? MS PHILLIPS: Mm-hm. MS PATRY HOSKINS: Interviewing people right across the press, you said, but in particular ethnic minority journalists and how they dealt with newsrooms and in particular having to deal with stories that might concern race and so on. Is there anything more that you wanted to add, because I appreciate you said several times, "I think we'll come on to this". I didn't want to stop you in full flow. Is there anything else you'd like to tell us about that particular project and that research, because it ties in with some evidence we've heard earlier in the Inquiry. MS PHILLIPS: It was a very small piece of research so I don't want to put too much emphasis on it, but I think I've already said the key issue of it, the key issue was this sense of people feeling that if they wanted to get on, they just needed to -- they had to swallow it, stay where they were, demonstrate that they could do journalism and that -- you got the feeling there was almost like a seasoning process, that they had to demonstrate that they were tough enough and that that would take a while. And because in order to move on to a different kind of newspaper, you have to have a really good cuttings file, what you would then have to do -- one of the things I was particularly interested in was the degree to which people were writing what we call off diary stories, which is basically coming up with their own ideas because I felt that that was an area where -- I was looking for culture change, so I was looking to see whether ethnic minority journalists were able to try and change the culture in the newsroom by coming up with their own stories, and they often tried and I thought that that was very -- I was really encouraged by that because what I was interested in was how journalists coming in can have an influence on the newsrooms they come into. And I think that they do. I think that as you bring more journalists from ethnic minority backgrounds into a newsroom, it does begin to change the way in which the newsroom operates, but in certain instances you can see that it hasn't had any effect and they all leave. So it will be quite interesting to look at the pattern of ethnic minority journalists going in and then out of newsrooms as they find they can't actually cope with what they're asked to do, and there are certainly some newsrooms which I think we're all aware of where it would be very hard to see the kind of constant stream of kind of anti-immigration and anti-asylum stories and actually stay working there. MS PATRY HOSKINS: Can I just pick you up on that? You said earlier that some of the journalists that you'd spoken to reported having to write stories that they considered to be racist. You remember you said that. Can you tell us a bit more about that? Was there pressure on journalists to write stories that were contrary to the beliefs that they themselves held? MS PHILLIPS: Oh, absolutely. This particular quote was somebody saying: "I thought the story was appalling. I thought all along that it was a ludicrous exercise with no logic whatsoever and I felt very ashamed about it. I talked to a senior reporter and said I wasn't very happy about it and he said to keep my head down and say nothing. He said I'd lose my job if I raised it with anyone more senior to him." As I said, I was virtually -- you know, they would not speak to me at all if I was to say what newsrooms they came from even, so I can't say any more than that. But that was a journalist who is no longer working for that newsroom. I think what people felt was that you get in there and you keep your head down and you prove that you can deal with anything. Another one I spoke to said that the only time he had ever been able to exercise what is laughably called the right of conscience was once he was able to point out to a more senior editor that actually this particular story affected his family directly and he was allowed not to write it. But these stories, they just -- as I said, they fell out. They were not very hard to find, but people would only say it if I promised not to mention their names at all, ever. MS PATRY HOSKINS: I'm not asking you to name any names or any newspapers, of course, but can you give us an idea of how many journalists you spoke to? MS PHILLIPS: It was very small. This was in . There weren't very many ethnic minority journalists. I'm not pretending it was in any way a quantitative study. There was a very small number and it was looking for something quite specific, so it was just -- I was quite surprised by the impact. I mean, the second research I did was -- again it was looking -- because it was looking for how people -- looking for working methods, so there was probably about -- I think it was six people in three different newsrooms, but they were all quite -- from different levels within the newsrooms. Different ages and different backgrounds. So again I'm not pretend -- I never suggested it was a huge sample. It was qualitative research and it was looking at what people's experiences were and what was interesting was it came up completely unbidden. MS PATRY HOSKINS: Is there anything else you want to add? MS PHILLIPS: No. MS PATRY HOSKINS: Does anybody else want to touch on this issue? PROFESSOR CATHCART: While we're on the subject of race and the press, one of the simple exercises you can do in the classroom is to get students to go through a week's papers and look at the picture bylines and see how many of them are Whittamore and how many of them are a visible ethnic minority, and it's always a shock, even to the students, how very small the numbers of ethnic minority columnists are. There are lots of issues about how many women there are, and it's certainly not proportionate, but the black and Asian contributors to newspapers visible on that level are very few. Any research that has been done, and not nearly enough has been done about the employment of people from ethnic minorities in the press, any research shows it's pathetically small even today. MS PATRY HOSKINS: How does that compare to the number of students from ethnic minority backgrounds that your courses attract? PROFESSOR CATHCART: There's almost no comparison. Our student body is, I suppose, among other students it's a third, perhaps, are black or Asian or Arab by background. MS PATRY HOSKINS: Is that true across the board? PROFESSOR BARNETT: I would say if not more, possibly per cent. And Brian's absolutely right. I mean the profile, the ethnic profile of working journalists actually bears very different relationship, certainly at the national level, to those who start off on our journalism courses. PROFESSOR CATHCART: And I think actually it feeds through to what's been happening at this Inquiry. I think you've seen witnesses who have been almost entirely white. This is a white world we're talking about. We're talking about white people addressing white people. Not just in the Inquiry, I'm not suggesting it's the Inquiry's fault in any way, but the process of the press in this country, the national press, and particularly the mass circulation national press, is about white people addressing white people. PROFESSOR BROCK: I haven't counted, but I would guess that there is some difference in ethnic minority ratios between postgraduate journalists and undergraduate journalists. I would expect to see fewer ethnic minorities on postgraduate courses, but I haven't counted it. MS PHILLIPS: Yes, we certainly find there are fewer and it's because of the class structure of ethnic minority people in this country, it's harder for them to afford it and we don't have as many bursaries as we would like. MS PATRY HOSKINS: The ones that do come through your courses, what happens to them? Where do they go if they're not represented on the national newspapers? PROFESSOR BARNETT: That is a very good question. I think there is certainly an ethnic minority press and there are specialist publications, magazines, et cetera, which would employ quite a few, actually, and this might not be so true with Brian, but quite a few go into broadcasting where there is a much better record in terms of diversity. PROFESSOR BROCK: I was about to say the same thing. Television quite strongly. PROFESSOR BARNETT: And radio. I think every other sector. PROFESSOR BROCK: And business to business too. MS PHILLIPS: It isn't just a record of diversity. Television and radio tend to pay more. I think if you come from a working class background and you don't have enough money to get through your first degree, let alone a second degree, to then go into print journalism is problematic and it's of course going to get much, much worse. What is required, really, are a lot more bursaries. Certainly from my experience at Goldsmiths, those who do come do very well because the newspapers are very well aware that their newsrooms are not sufficiently diverse. If a star pupil comes through from an ethnic minority background who has made it through, I don't think anything will hold them back at that stage. I think a lot of the problem is economic. MS PATRY HOSKINS: Interesting as this topic is, I think we should move on to the other areas of research, if I can. I'll turn to Professor Barnett first. I'm going to ask you a bit about the section in your witness statement dealing with culture, practices and ethics, being highly relevant to our terms of reference. You share with us in that section of your witness statement two personal experiences which I think are very helpful. If you wouldn't mind, can I ask you first about the experience about the celebrity on your street? Perhaps you can tell us a bit about it and then what you think you can pass on to the Inquiry as the kind of lesson to be learnt from that experience. PROFESSOR BARNETT: Yes. I actually -- this happened several years ago and I only wrote it up for the British Journalism Review this year. It's just a short piece but it happened several years ago where a very well-known singer, I won't even give the gender let alone the name, moved into our street and within a few months there was a knock on the door, there was a woman standing at the door who asked if it was true that this celebrity lived in our street and rather unthinkingly I just said, "Yes", and they then asked which number, and which point I sort of gathered my wits and said, "Are you a journalist?" and she said, "Yes". I think I asked which newspaper but I can't remember what they said. Anyway, I then said, "I'm sorry, I'm not helping". I put a note through the door of the celebrity, saying, "I think there's some journalist after you" and actually talked to a couple of neighbours subsequently who said that in fact this woman and an accomplice were hanging around in a car for hours trying to catch a photo. The point that I've made in the piece that I wrote is -- and I think this is crucial -- this particular celebrity, who is a platinum-album-selling artist and has given enormous pleasure to millions of people around the world, had never sought personal publicity, has never done anything wrong, has never done any deals with Hello magazine. There is absolutely nothing that one can point to in their private life that one might argue is in the public interest to be exposed, but there was a rumour going around that they were having a relationship with a sporting celebrity, and it was no more than a rumour, and in fact an article to that effect then appeared in a newspaper a few days later, most of it entirely fabricated. At the time, I was sort of rather disappointed with myself that I hadn't gone up to these people and said, "What do you think you're doing and why are you doing it?" I wish I had. But it was just a very good personal example of the attraction of celebrities and show business for no reason other than they make good stories. MS PATRY HOSKINS: Can I just pick up, we may as well explore some of the more general points. You said this person had never courted publicity, had never given interviews to Hello or OK magazine. Does that indicate that you take the view that if a celebrity does choose to speak to Hello or OK magazine or puts their personal life in the media in that way, this somehow might justify a higher level of not intrusion, but a higher level of interest in their private life? PROFESSOR BARNETT: No, I don't necessarily think that's true. I think that as soon as you try and create a public image, which -- and there is evidence to suggest that actually the way you live your life privately is very different to that public image that you've tried to create and manipulate, there might be a kind of hypocrisy argument, and I say might. I think this is a very grey area, because I think it's easy to use it as an excuse, particularly for mass circulation newspapers, to delve into the private lives of celebrities. For me, the much more important principle here is that celebrities become celebrities very often because they are good at something. I think Steve Coogan made this point, "I happen to be a good writer", he said, and this person happened to be a wonderful singer. There are people who are very good at sport or are wonderful dancers, and they became famous and possibly rich because they are very good at something. The idea that therefore, about because they excel at what they do, they should then become legitimate targets for journalistic exposure or even any kind of intrusion that they don't want seems to me to be entirely wrong and entirely counter-productive and it's actually -- I think in a funny kind of way it's quite British, in a bad way, and I don't think it reflects well, actually, on our own culture. MS PATRY HOSKINS: What about the argument that these people who are very talented in whatever field might be seen as role models? For example, for young children who may buy CDs or downloads or the young boy who goes to watch the footballer playing football, those people are role models to generations, in some cases, of people. PROFESSOR BARNETT: In terms of what they do, if what they do they do badly or they are found to have done it in some way, engaged in some kind of corruption; if this great singer turns out to have been miming and it's somebody else's voice, then of course that is absolutely legitimate to be exposed as hypocrisy. But if they are doing something which is completely detached from their professional life, what they are good at, and they are doing something that's entirely legal in their own time in their own house privately, I cannot see any conceivable justification for saying, oh, this person is a role model, therefore we can put a camera in their bedroom or we can follow them down the road and expose their private life. I just don't see the logic. MS PATRY HOSKINS: Does anyone else have a view? PROFESSOR BROCK: I'm on record as saying that I think what recent events have shown is that we do need to rewrite privacy legislation. I don't think that balancing Article and Article of the Human Rights Act has worked particularly well. I don't think that -- I'm not necessarily sure that I would settle every case identically to Steve, but I think that he is absolutely right to argue that what has happened, possibly by degrees, is that we have reached a point where anybody who is prominent for almost any reason is fair game to certain media -- and it incidentally isn't only newspapers, it's websites as well -- in almost any aspect of their private life they can find out about or they can buy information about. It seems to me that while it is a very difficult grey area, it surely ought to be possible to design a law which doesn't chill proper journalistic enquiry while at the same time providing some protection for private life and particularly the relatives and children of people who are in prominent positions who I think have suffered a great deal and you've heard quite a lot of evidence about that. I'm not suggesting that this task would necessarily be easy. Clearly there has to be public interest defences inside it. But I do think that the present state of the law really doesn't work particularly effectively, conscientiously though judges have attempted to interpret what is an extremely broad band of interpretation they were left by the Human Rights Act. That's my view in summary. PROFESSOR BARNETT: Can I just add one thing? For me, I'm less convinced about a new privacy law. The crucial issue is defining the public interest. If we had a parliamentary definition, if there was a law which actually said, "Here is a definition of the public interest", it's not going to resolve every single case, they would need to be done on a case-by-case basis through the courts as happens now between Article and Article . But at least it would then have democratic legitimacy of Parliament behind it and more importantly it could help to liberate good journalism. As George said, what it could do is provide a defence perhaps to phone hacking, perhaps to the Bribery Act, and there would be a defence on grounds of real public interest which Parliament has defined, but that would not include intruding into the private lives of celebrities just because they are celebrities. LORD JUSTICE LEVESON: Do you have such a definition? PROFESSOR BARNETT: Pardon? LORD JUSTICE LEVESON: Do you have a definition? PROFESSOR BARNETT: Yes, and it comes from the BBC website. LORD JUSTICE LEVESON: Thank you. PROFESSOR BARNETT: It's in the BBC's editorial guidelines and I think that works perfectly well. I'd rather see Parliament debate it and pass it rather than me give my definition. LORD JUSTICE LEVESON: Just before you say that, I don't think they've yet invested you with the power to pass legislation, Professor. PROFESSOR BARNETT: Not yet. LORD JUSTICE LEVESON: And I am sure that they haven't given me that responsibility either, so all that will happen is that whatever I come up with at the end will be debated in Parliament, and again picking up a comment that's been made in the press in the last few weeks, I'm not legislating anything, I'm merely providing the vehicle through which those who do legislate may or may not wish to consider how to proceed. PROFESSOR BROCK: Can I just round off by way of adding to what Steve has said, that I think we have been much too nervous for much too long in debating and building in proper public interest defences, and I think the media has been at fault here in not taking enough interest in this issue. PROFESSOR CATHCART: Yes, I would also say, with George's assistance, Hacked Off is looking at these issues and will in due course, I hope, with City's co-operation, be producing a proposal for you on these issues of a definition and where it might apply. On the issue of privacy legislation, I'm more with Steve. I'm doubtful about the need for new legislation, and I think one of the reasons we debate the need for new legislation is because the media, which have a vested interest in wrecking what there is now, have hogged the debate for so long and have shouted at us all through their mighty megaphone for so long that we believe there's something wrong, when I'm not convinced there is. MS PHILLIPS: I think that we would all agree with the idea that there needs to be a proper public interest defence and I'm involved with the Co-ordinating Committee for Media Reform, which is trying to bring together a number of the organisations, both academic and non-governmental organisations in this area, and certainly one of the things that we will be pushing for is some form of clear public interest defence. LORD JUSTICE LEVESON: Will you be providing some views some time before next summer? MS PHILLIPS: Absolutely. LORD JUSTICE LEVESON: I look forward to reading them. MS PHILLIPS: Yes. I think that one of the big problems with privacy legislation as it is, of course, is that it's available to people who can afford to take things to court, so I do think that there needs to be some form of -- it should be possible for people who do not have a lot of money to be able to make use of media law through some form of tribunal system. That's one of the other things that we are going to be suggesting because we can't have a completely divided system. But I think that the idea of keeping the existing privacy law and having a proper defence would cover a lot of the issues that we are faced with, I think. MS PATRY HOSKINS: We're moving on now to more general questions of changes to the law and moves us on neatly as well to changes to regulation, if that's deemed necessary. It may well be that this is a good time for us to take a short break? LORD JUSTICE LEVESON: We ought to because the shorthand writer has been working hard -- MS PATRY HOSKINS: And then come back to this very interesting issue. LORD JUSTICE LEVESON: -- for an hour and a half and I'm very keen to hear your views, both now and, as I've said, it doesn't stop just because you finish today. I'll still be here for some time and I'm very keen to hear your views, whenever you have them. Thank you. (.am) (A short break) (.am) MS PATRY HOSKINS: Right, I'm going to move on to the issue of regulation of the press, if I can. I know we had started off down a road of talking about changes to the law but can I just for a moment talk about that. I'm sure you're all very familiar with the way that the press is currently regulated, I'll assume that, but can I start like this: does anyone want to argue that the current system of regulation works well and should be left alone? PROFESSOR CATHCART: No. MS PATRY HOSKINS: Does anyone want to argue that there should be less regulation, which is obviously an argument we've seen referred to quite a lot? PROFESSOR CATHCART: No. MS PATRY HOSKINS: Okay. Let's scale back a little bit then. The current system of regulation, what does the PCC do well, in your view? Who wants to kick-off? PROFESSOR BARNETT: It has an absolutely perfectly good code of practice, the Editors' Code, which is not dissimilar to the Ofcom Code. As I said in my evidence, it's less thorough than the BBC Editorial Code, but it seems to me to be perfectly adequate and workable as a benchmark of professional standards. That is not the problem. The problem is enforcement and implementation. PROFESSOR BROCK: Let's not forget that the PCC functions pretty well for regional papers and magazines. It's national newspapers where the issues have arisen. I also agree with Steve that I think the code is pretty good. When I was a managing editor, we observed the code as best we could and I thought it was a pretty useful document for doing that. PROFESSOR CATHCART: I would add that it appears to be quite a good mediator and handle complaints quite well within the narrow remit of its complaints service, but it appears to do so well. MS PATRY HOSKINS: Anything you'd like to add? MS PHILLIPS: I think it deals with issues of accuracy quite well, but it doesn't seem to deal well with anything else. I would agree that the code of conduct is something worth hanging on to. It's also quite like the NUJ code of conduct, and it's a perfectly reasonable document. The question is how do you ensure that it actually happens? MS PATRY HOSKINS: So that's been a very brief session on what the PCC does well. Can we move on then to what it doesn't do so well? Perhaps I'll take you in reverse order just for a change, just to put you on the spot. MS PHILLIPS: What it doesn't do very well? Well, it doesn't work. MS PATRY HOSKINS: Okay. MS PHILLIPS: It doesn't seem to be able to get the more powerful newspapers to abide by it. One of the things that I think is quite interesting is the degree to which editors seem to see regulations as a challenge. I mean, you get -- it's all about going as close to the wire as you possibly can and seeing how far you can get rather than thinking about how you could actually manage to operate within the regulations. I do think that there are some things that the PCC have done which are important. I mean, I think that when they brought in a code about harassment, certainly at local level in relation to private people, it has had some effect, but obviously it hasn't had any effect when it comes to celebrities, so it needs to work. MS PATRY HOSKINS: Okay. PROFESSOR CATHCART: I've described it in the past as a sort of confidence trick by the industry. It's not a regulator, although the industry has been saying for years that it is. And it's interesting to see now that it's, you know, Lord Hunt is accepting that it's not a regulator, and indeed Lord Wakeham did so a couple of weeks ago. I think that I'd better describe what I mean by a confidence trick. If you say that you have a body that is enforcing standards and raising standards in your industry to the public, and you insist on it because, again, you have command of the megaphone, and at the same time this body is simply a complaints agency, a sort of outsourced complaints agency, then you are perpetrating a trick on your customers, and I think it's -- you know, I think it's a disgrace that it has been allowed to go on so long and that that trick has been sustained for so long. LORD JUSTICE LEVESON: They do have a power to investigate, don't they? PROFESSOR CATHCART: They do. In the Articles of Association there is a phrase there which says that they can act on their own discretion. As far as I can make out, if that's happened, it's only happened twice or three times and it has had no impact whatsoever. It has certainly not been accepted as the practice of the PCC that it will go out and do so. PROFESSOR BROCK: And indeed, the PCC's early statements about phone hacking only showed when the organisation made a complete idiot of itself -- only showed that if you were going to take seriously the investigative power which appears to be written in, although it's a bit vague, I think it's fair to say, they would have to do it in a consistent way and have worked it out. Just charging in a rather superficial way into a highly polarised issue and making a judgment about it that turned out to be completely wrong is exactly what not to do. So that's an illustration of where it goes wrong. I think it's also been guilty -- I think I'm just underlining Brian's point -- of trying to pretend that it's a regulator when actually it's a complaints mediation service. PROFESSOR BARNETT: I'd go along with all of that. The only problem is it was billed from the very beginning as a regulator. When David Calcutt produced his report in , and indeed then reviewed his own report in , he actually talked about this new system of self-regulation. So whether or not it is actually a self-regulator, a regulator, it was certainly billed after the excesses of the s, which led to its creation, it was billed as an answer to deal with the issues that had arisen during the and was billed as an answer that was a regulatory answer. So it's all very well now for, you know, the current and previous chairmen to talk about, "We're actually only a complaints mechanism". That is not the way in which they either were set up to do, nor indeed the way they wanted themselves to be perceived as doing at the time. MS PATRY HOSKINS: I suppose that takes us neatly on to what it should be. I think you all agree that it does some limited things well, there are some aspects of it that you think it does not well at all. That would take us on to what should replace it. I don't know if you've seen today it's been reported what the PCC itself proposes. I printed off this morning a news report headed "PCC proposes wide-ranging shakeup of press self-regulation". Obviously it's interesting to see where they themselves feel it should change. What I'm going to do is identify some proposals and you tell me whether you think you agree -- LORD JUSTICE LEVESON: It's a bit hard if they've not had a chance to read details. MS PATRY HOSKINS: Absolutely not, and I promise if you haven't had a chance to read it, that's fine. The issues are familiar ones and perhaps I'll just deal with some of the solutions they have come up with and we can talk about the issues rather than the general package that they propose. I suppose the first thing, we were just talking about this, is the power to investigate. Can I have your views, please, on how a power to investigate would work, what sorts of situations you would like the PCC or new body to be able to investigate in? Who wants to kick us off? PROFESSOR CATHCART: I will. I draw the analogy with, you know, other areas of life. If there's a railway accident, there is an inquiry and lessons are learned. In the press, I was very influenced by observing the McCann case develop over month after month after month like a slow motion crash, and yet there was no introspection in the industry afterwards. The damages were paid, the books were closed and they moved on. That is not -- you know, we wouldn't accept in the railway industry or in, for example, a hospital, we wouldn't accept that nobody went back and assessed what had happened and tried to identify how things could be changed to prevent it happening again. So I think a mechanism -- a regulator who is prepared to go in and do that is essential. PROFESSOR BARNETT: I'd like to add to that dealing with third-party complaints. At the moment, there is no facility, for example, for groups that feel themselves to have been traduced in some way to make a complaint. The obvious example is travellers, the way they have been portrayed in some tabloid newspapers, asylum seekers. These are groups of people which have organisations which represent their interests, like Amnesty International, but at the moment there is no facility for representations to be made on behalf of groups of people to say, "These particular stories, the way in which this particular story has been laid out is either completely inaccurate or a gross distortion of the truth". So some means of dealing with those kinds of third-party complaints -- and I can see the problem in terms of you can't complain about a story about another individual without their consent. I get that, I understand that. But I think where we're dealing with the nature of stories which are, as I say, traducing particular groups, I think has to be done. MS PATRY HOSKINS: Am I right in thinking so far we have investigations -- you would like to see investigatory powers in situations where there might have been a high profile controversy of some kind, you'd like to see investigations take place where a third party wanted to complain about a particular way in which it had been represented. Are there any other investigatory powers that you think such a body should have? MS PHILLIPS: I think there needs to -- something we were talking about earlier, to do with whistle blowing, and I believe this is something the PCC has mentioned this morning. It should be easier for journalists who are concerned about what they're being asked to do to find an avenue. There is no avenue at all. And when a group of journalists at the Express Newspapers a few years ago tried to raise a broad issue -- again this was about the coverage of Travellers and the fact that they were being -- they felt that they were being coerced into writing stories which they felt were inappropriate, the response from the Press Complaints Commission at that time was to say that -- I paraphrase this, but that the role of the Press Complaints Commission is not to stand between an employer and the employees, which basically left journalists completely out on a limb. They had no possibility for finding a way of channelling their own concerns. So I think there needs to be a way in which journalists who are working on a newspaper, and they're not going to do it very often because it puts their own position at risk, but they need to have a place where they can safely go and say, "Things are not right". And then I would agree that there needs to be some mechanism for looking at broader areas of concerns, rather than simply specific complaints. PROFESSOR BROCK: I am going to part company with my colleagues on this point. I'll take an opportunity later on, if I may, just to explain the context of what I think about regulation in general, but I'm very, very cautious about the blithe conversations about investigatory powers. It's very easy to draw the conclusion from what has happened to the PCC that what it lacks is investigatory powers, but I think we have to be very careful before we encourage systems in which people are going to have the freedom to wander into newsrooms and find things out. That actually is not a particularly good idea in general and I think we have to be extremely careful about how we set that up. I'll leave it at that for the time being. MS PATRY HOSKINS: Feel free to tell us about the context. That's very interesting. LORD JUSTICE LEVESON: We don't want to lose the point. PROFESSOR BROCK: Okay, but it is wider than the point about investigative powers. MS PATRY HOSKINS: That's fine. PROFESSOR BROCK: I base what I say on my experience as a managing editor and I think that a system of regulation that is really going to work effectively has to balance an externally imposed deterrent, if you like. With an internal incentive and unless the deterrent and the incentive are properly balanced, you won't get a sustainable effect of the kind you need. I think that what we need to do, instead of concentrating so hard on reforming the self-regulation mechanism, which happens to be the one that exists, we should start by thinking about the legal context in which as I've already said I think public interest defences are rather weakly put. I think there is quite a lot of revision that needs to be done there, both -- and it's under way in the defamation law, I think it should happen in privacy law and I think there has to be access to quicker, cheaper justice for people who are using those kinds of law as complainants. I think the expansion of the public interest defence is really important because I want to see a form of regulation which arises from people's wish to do things better rather than simply from the imposition of external penalties or indeed the imposition of external investigation. And I think that if you say that it is easier to access a public interest defence in a case such as defamation or privacy probably being the two most prominent principal ones here, then I think if that public interest defence depended partly on the integrity of your editorial systems, or more generally, the integrity of your newsroom and what you could demonstrate about it, did you have self-disciplines that prevented people doing things wrong, do you show how that operates, are you clear about what your code is, how do you respond to complainants and so on, that I think would be a more effective way of growing up a system that might be called regulation or it might be called self-regulation. MS PATRY HOSKINS: That would be the carrot? PROFESSOR BROCK: It would be the carrot indeed. If I may just give the example of the News of the World, now a dead newspaper. They used to find themselves in court quite a lot. They also did investigative work. If they were in court and their position in court was going to be damaged by the fact that they were doing things like phone hacking, it seems to me that the senior executives of that popular paper would be very much more careful about what was going on in their newsroom because they would have an actual incentive in the operation of the law to do better, to be more careful about what was happening. I've outlined these in the latest edition of the British Journalism Review, which Steve happens to have brought along, at a slighter greater length than I've been able to do now. Thank you for your patience. PROFESSOR BARNETT: I'm not sure that these positions -- this is turning into a university seminar. LORD JUSTICE LEVESON: That's exactly the purpose. That's why you're together. PROFESSOR BARNETT: Okay. I'm not sure these positions are actually incompatible. Yes, there needs to be -- I'm not sure that there is that much difference between rooting these changes in law and rooting them in enforcement -- giving a beefed-up PCC or a new regulator the kind of enforcement facilities that the law would provide. It seems to me that if newsrooms -- if we go back to George's point, which I completely agree with, that the key to this is how do you change the newsroom cultures to a more ethical environment, that if you know that the publication of an inaccurate story, a blatantly mischievously inaccurate story is going to involve a complaint which there will then be questions asked about how you came to that story, without actually naming your sources, who did you go to, who did you check them with, and there is a sort of paper trail, all we're talking about is a newsroom which enforces precisely those kinds of codes and modus operandi that I think you were talking about, George. So I don't think those positions are incompatible. What you do need is that regulatory framework which persuades the newsroom that that's how they have to behave, that they need that audit trail and they need to encourage the kinds of behaviour that won't result in those sorts of complaints. LORD JUSTICE LEVESON: It's not just accuracy, either. PROFESSOR BARNETT: No. LORD JUSTICE LEVESON: Isn't it also ethical? PROFESSOR BARNETT: Absolutely. It's ethical journalism, it's actually abiding by the Editors' Code in all its respects. PROFESSOR BROCK: I was only going to say but the difference is that I think it will be more effective if this is grown up by the newsrooms themselves in response to the right incentive. That's possibly a small difference between us. PROFESSOR CATHCART: I certainly buy the idea that public interest defences can have a big influence in changing culture. I just make two points. The first is that it's often said that, you know, when something's illegal, the law deals with it, but the process by which, if you'll forgive me, the law deals with some of the problems that we're facing is imperfect. If you look at the case -- LORD JUSTICE LEVESON: That's the mildest way. PROFESSOR CATHCART: If you look at the case of Christopher Jefferies, he sued eight newspapers and you've heard how he was monstered. He sued eight newspapers and they paid -- we don't know what the sum was, but the legal gossip is something less than ,between them. They had a field day with his life for three days over the quiet new year weekend. If I do the sums right, the average was that it cost each of them ,a day. That's good business. It sounds like Christopher Jefferies has had justice, but it doesn't affect the way in which the newspapers are likely to proceed in the future. And indeed if you project it into the past, what happened to Christopher Jefferies is not all that different to what happened to Robert Murat who sued a lot of news organisations. It's not all that different although it was much more slow motion than what happened to Kate and Gerry McCann, who sued. Suing may get you what looks like a headline sum of money in damages, but it is not forcing the newspaper industry to think about its own culture in any way. They can pay these sums of money and move on. Indeed, you heard Gerry McCann argue that they actually make a profit overall in some of these cases. That's not good enough. It's not finding where the wheels have come off and saying we need to tighten these bolts. So I come back to the idea that some sort of post-mortem process has to be introduced into the proceedings and I think an investigative arm, which was proposed by the Media Select Committee in , is an important standards element for a regulator. LORD JUSTICE LEVESON: But does it need to be able to investigate as opposed to adjudicate? PROFESSOR CATHCART: I think it needs to be able to find facts. LORD JUSTICE LEVESON: That's slightly different. That's probably right. But there is a concern that I recognise in what Professor Brock says about investigators marching in -- and the other problem, of course, is that there are only so many investigators and policemen and what have you to go around for the range of activity which has to be the subject of investigation. We can't simply rely on there being a policeman to arrest a photographer for harassment, or a regulator to be able to find out about one private detective and then get all sorts of information. We have to find something else as well. PROFESSOR CATHCART: I think there has to be a threshold at which investigation becomes justified. I don't think that a huge sort of internal investigation of every newsroom whenever there's a complaint is justified. But I think that in issues where, you know, there is a genuine public concern, as there was in the McCann case, for example -- LORD JUSTICE LEVESON: Yes, we've ground exceeding fine and here it is now. PROFESSOR CATHCART: Indeed. In those cases, I think that -- in cases like that, I think our regulator has to be able to, as it were, call witnesses and find out what's gone wrong. PROFESSOR BARNETT: It doesn't seem to be a problem in broadcasting. We have an apparatus and it works fine. If a programme is broadcast about me which I think is materially inaccurate, I can make a complaint to Ofcom and I don't think -- it doesn't take a huge machinery to ensure that there is some kind of recompense, some kind of investigation and recompense. The broadcaster will have the records of how they came to that story, they will provide it to the regulator, I will get my answer. I don't think it's a particularly big deal. PROFESSOR CATHCART: One final thing. I would commend to the Inquiry one or two of the final reports by the Press Council, which conducted investigations of this kind in critical moments. I see Sir Louis Blom-Cooper, over there, ran one into the Strangeways prison riot and I would suggest it's a model of what could be achieved. LORD JUSTICE LEVESON: There you are, Sir Louis. Yes? MS PHILLIPS: I would agree that I think we have to separate adjudication, conciliation and investigation. They are completely different. I think that obviously an investigation is something that would only be triggered if something was going on that was more than the concern about one particular individual event. And I think we could all look back over the last ten, certainly over the last ten years and see where clearly patterns were arising, and one would like to imagine that a regulatory body that was concerned with the press would be looking for those kinds of patterns where something clearly was happening over a long period of time or, in the case of the McCanns, it was an accumulation of coverage. I think -- LORD JUSTICE LEVESON: So this is proactive rather than reactive? MS PHILLIPS: I think one would like to feel that there was some kind of proactive possibility in a regulatory body, but one wouldn't expect it to be used all the time. It would need to be triggered by something clearly important going on, and I think that that would need to be left to the decision of whatever board was structured to run it, but one wouldn't -- it needs to be there. PROFESSOR BROCK: I think the problems of -- if we're imagining a broadly speaking -- or people want to imagine a stronger regulator, I think the problems of inclusion, ie who is covered by it and are they compelled to be included in the system, are rather bigger than people sometimes acknowledge. I think if you then have to think about investigation and presumably stiffer sanctions, because that's often implied as well, you are very close to what Steve was suggesting just now, which is effectively extending the Ofcom regime to printed, perhaps, and online media. I would on the whole be in favour of a mixed economy of legislation because I think that produces probably better public interest journalism with words in the end, but if you're going to get into a very elaborate regulatory system, you might as well extend Ofcom. I was forwarding an idea that is different, but as soon as you're into sanctions, investigation and so on, you're not very far from just drawing Ofcom across to extend across more people. More outlets, I should say. PROFESSOR BARNETT: You can take the best and the worst. I think extending Ofcom won't work for a number of reasons, not least because we don't want to license the press. The reason Ofcom works in the end is because the ultimate sanction is you can take the broadcast licence away, and that's the root of its effectiveness. But I think you can take the good bits of Ofcom, which is that it is an effective regulatory system, that it has set up a mechanism for dealing quickly with problems, with complaints around ethical issues, and I used in my evidence the example of Carlton Television. It was discovered by the Guardian to have faked large sections of its documentary in and they ended up paying million to the regulator. There is absolutely the issue of compulsion, and I don't know if you were planning to come onto that, but how do you persuade all the publications to come into this umbrella; and there has to be a implication of sticks and carrots, but my favoured solution is perhaps to have Ofcom as a sort of backstop regulator. There has to be something behind this new system, but preferably the new system would start by being self-regulatory. It would be operated and run by those within the industry for the industry, including, as we know happens with the Press Council in Ireland, working journalists. That seems to work very well. MS PATRY HOSKINS: Can I pause you there just to tell you what the PCC have said about this issue of getting people to join in with the system. They say this: "A crucial part of the new system would see each publisher sign a contract with the PCC. Each newspaper owner would have to sign up to the complaints mechanism, submit to investigation and accept financial sanction, with each contract lasting between three and five years. The idea is to create a mechanism tighter than the existing model of self-regulation but not as stiff as statutory intervention. It would be possible for the PCC to enforce against errant newspapers because the publisher would have signed up by contract, insiders describe it as a self-licensing system, and any breaches would amount to contempt of court." Would any of you have any support for that system? PROFESSOR CATHCART: There's the simple obvious problem that Richard Desmond might not renew his contract. PROFESSOR BROCK: Or might not want to sign it in the first place. PROFESSOR CATHCART: Something like that depends on a sort of kite mark quality to it which I think is quite difficult to deliver in newspapers. They would need all to be boasting "We carry the kite mark" quite a lot before it had any impact on the public. LORD JUSTICE LEVESON: Which of course brings the elephant in the room, namely the Internet. PROFESSOR CATHCART: Yes. LORD JUSTICE LEVESON: Or those who might rejoice in not having the kite mark. PROFESSOR CATHCART: Indeed. MS PHILLIPS: Which is one of the reasons why I think that the right of reply is quite an important weapon, because it's outside all of the -- I mean, I think there are different ways in which a new regulator could be organised around tribunals and lots of different ideas about carrots and sticks, but I think that to have a statutory right of reply which kind of floats above all of it would apply to the Internet as well. In fact, it would apply primarily to the Internet because it's on the Internet that it's easiest to do. There's absolutely no reason why every single internal outlet should not be required, as long as -- I mean, as long as they were within British jurisdiction, which clearly does raise some problems, but I think it's not insurmountable, if everybody simply had to promise to give the right of reply at the bottom of any article and above the comments -- it's not the same as a comment column, it's a right of reply column. I think if that was something that simply everybody had to produce, I think for a start it would mean that you would begin to see the use of internal ombudsmen. I think you would begin to see that newspapers would rather conciliate than publish a reply in a right of reply slot. I think it would simply mean that every time you write an article, you would know that immediately below where you had written, somebody else could come along and say, "This is all made up". I mean, there would have to be checks and balances about it. There would have to be -- it would have to be quite carefully worked up how such a right of reply would be used, but I think it would have quite a salutary effect because it would be immediate. It would mean that if somebody wrote something about you today and you heard about it, there's no reason why within hours you shouldn't have your right of reply up there on the Internet. There have been lots of complains for right of reply over a number of years, and they've always been squashed because the editors have always said, "We can't have a right of reply because it would completely ruin our newspapers. We don't want somebody who doesn't know how to write getting kind of a space bang slap in the middle of one of our beautifully organised pages". Actually, there was some point in that. It would have looked strange on a regular basis to have something on the front page saying, "Actually, what we said yesterday was wrong". I think there are occasions when that's necessary, when somebody has clearly said something that's completely wrong, but if you had a right of reply that is simply always exercised online where it's easy, and there's no argument that I can think of against it, you are improving democracy, you are improving accountability and you are going some way towards balancing the freedom of press with the freedom of expression of the individual. And it would be terribly easy. Which means there must be something wrong with it. PROFESSOR BARNETT: I don't understand how that would work out of jurisdiction. MS PHILLIPS: As I said, it would clearly be problematic, but if one is going to assume that everybody faced with a right of reply is simply going to move to another jurisdiction, I don't think that's going to happen. I think most people will deal with it. PROFESSOR BARNETT: I suppose I'm slightly concerned -- it seems to me that blogging and the Internet is actually a wonderful opportunity for complete freedom of speech, and I am not entirely convinced about the right of reply -- MS PHILLIPS: But it often isn't used as an opportunity for complete freedom of speech. If you look at newspapers and you look at their comment columns -- PROFESSOR BARNETT: I entirely accept that if we're talking about the online manifestations of existing publications, I completely agree. But to extend it across all online, you know, any kind of blogging I think is different. Can I raise another point, which is actually more about the carrots for bringing people in to this sort of brave new world, and they've both been raised before, but I think they're both attractive. One is to find some way of financially incentivising those publications by perhaps saying that if you are not part of this regulatory system, if you choose not to be, you will be subject to VAT. I think that's -- I've seen various projections about what that might raise, potentially -- or what you might lose, which can run into millions of pounds, and that seems to me to be a powerful incentive. LORD JUSTICE LEVESON: Depending on whether it's legally possible. PROFESSOR BARNETT: I've heard that some people are objecting that you have to go to Brussels and get permission. If the will is there, I have not heard of any legal objections to doing that. The exemption from VAT is predicated on an assumption that the printed word is good for democracy. That's my understanding of how it comes about. If you want to be outside of an umbrella which says we are actually -- this system of regulation is there because we accept that the printed word is part of the democratic process, then it seems to me if you don't want to be part of that, I don't see how you can then say, "But I want to be exempt from VAT". So that's one thing. The other thing is I think what's been suggested is that for those within this new regulatory system there could be caps on -- if you operate some kind of voluntary tribunal and all sides agree to be bound, there could be caps on any kind of damages that might be awarded -- LORD JUSTICE LEVESON: Or you could do it the reverse way, by saying that if you're not within that system, and you're found liable for some failure, then there is an additional -- PROFESSOR BARNETT: Absolutely, absolutely. LORD JUSTICE LEVESON: -- award. PROFESSOR BARNETT: And that would need to be enough to make it sufficiently incentivised for an organisation to want to be part of this system. But I also think we should emphasise the potential role of this whole kite marking area. I think if there was a sufficient amount of publicity -- we all remember the Advertising Standards Association: "legal, decent, honest, truthful". None of us really know what the PCC stands for. That's because of publicity, because the ASA was prepared to publicise the standards which it expected people to adhere to, and I think a new kite marked regulatory system for the press could do the same. MS PATRY HOSKINS: I'm going to pause you there because I know Mr Barr wants to come back on to interesting questions about the definition of the public interest and other ethical questions. I'll give you each a few moments to tell us, because I think every witness has come forward in this Inquiry so far and said "It's all very difficult, I don't have a solution in my pocket", but we thought that if anyone can tell us -- LORD JUSTICE LEVESON: Before you do that, that's a good question, but I have a slightly different one. How is all this going to be financed? It's all very well for Ofcom with the broadcasting money that is behind it, but print journalism as we know is going through a very, very difficult time, so if anybody has any ideas on that, I'd be very interested to hear it before you get the general opportunity. PROFESSOR CATHCART: I find there are two elements we come back to in this debate, where the role of the state becomes of interest. One is -- we've just discussed it -- the area of compulsion and membership and so forth, and the other is money. I think that we will hear, we are hearing a great many projects for press regulation, but I think that if they don't answer those two questions about compulsion and -- then, you know, they're not answers. I would love to think there was an alternative, but I can't see how those two questions could be answered without some involvement by the state. On the first point, I would say that when he came before you at the seminars, Paul Dacre, on the point of membership, as it were, he said something similar. He said that he would be looking for the help of Parliament, as it were, on that point, and I think the same is true with the money. PROFESSOR BROCK: One of the reasons that I have suggested starting at a different point than attempting to produce a more elaborate, more effective regulatory mechanism than the one that exists at the moment, is I think the problem of paying for it is a really hard one, and therefore, if you build it into an incentive system -- I won't rehearse my previous argument -- then I think people would have a stronger incentive to come up with the money to run it. I think under the scheme I'm proposing, serious newspapers would get together collectively, they wouldn't just do this as a matter of individual declaration. They would get together to agree common codes. They might easily use external people, people from the legal world, quite obviously, to look at or indeed adjudicate some complaints and so on. LORD JUSTICE LEVESON: That's one of the possibilities. PROFESSOR BROCK: And they would have to provide the resources for that system and they would have an incentive to do that, as I've described. MS PATRY HOSKINS: That takes us back to my more general questions. I want to give each of you a short opportunity to show us or tell us what the brave new world would look like in your view. Should look like. Who wants to kick-off? I'm going to start with Professor Barnett. We're back to starting on the left. PROFESSOR BARNETT: I was hoping I would be let off this time. In my evidence, I submitted a number of broad principles which I think need to underpin any new system. If you're asking me to outline the nuts and bolts of a new regulatory system, I will -- well, I'm not going to do that now. MS PATRY HOSKINS: I'm not going to give you the time to do that. PROFESSOR BARNETT: Good, okay. I would make two general comments: that ideally the new beefed-up system should be run by the press for the press. There are various ways in which we could try to ensure that it is not run by a small band of newspaper editors. I talked about