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http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-5-December-2011.txt 1 Monday, 5 December 2011 2 (10.00 am) 3 LORD JUSTICE LEVESON: Yes, Mr Jay. 4 MR JAY: May it please you, sir, I'm going to recall 5 Mr Owens. What has been organised is that the core 6 participants will have relevant evidence on their 7 screens, which was provided to them under usual 8 conditions of confidentiality on Friday. However, 9 members of the public will not be able to see what are 10 on our screens, and indeed the room has been cleared of 11 all members of public and the press -- they're in the 12 marquee -- save for Mr Owens and Mr Aldhouse, because 13 we've taken the view that -- 14 LORD JUSTICE LEVESON: Entirely. Could I just say that 15 I intend to promulgate in writing the judgment that 16 I gave on Friday. Revising it over the weekend, it 17 occurred to me that I had not made it clear that copying 18 details would not be appropriate and that the idea at 19 the end of the Inquiry is that everything should be 20 returned to the Inquiry. 21 MR JAY: Yes. 22 LORD JUSTICE LEVESON: But I will promulgate that revised 23 ruling during the course, I hope, of today. 24 MR JAY: So may I therefore recall Mr Alec Owens, please. 25 LORD JUSTICE LEVESON: Thank you. 1 1 MR ALEXANDER OWENS (on former oath) 2 Questions from MR JAY 3 MR JAY: You gave an affirmation or oath on Friday. You're 4 still under that. 5 A. Yes. 6 Q. I'm going to ask for the various files by way of icons, 7 if they could be put up on the screen, please. 8 TECHNICIAN: You should have them, Mr Jay. 9 MR JAY: They're not on mine. Is there a button we need to 10 press? 11 LORD JUSTICE LEVESON: Have you turned the screen on? 12 MR JAY: Have they come up on your screen? 13 A. No. 14 MR JAY: Are they on anybody's screens? 15 MULTIPLE SPEAKERS: Yes. 16 LORD JUSTICE LEVESON: And mine. Have you turned it on? 17 MR JAY: Yes. 18 LORD JUSTICE LEVESON: The possibility is that you are 19 governed by the same ... 20 MR JAY: Ah, thank you. 21 LORD JUSTICE LEVESON: I'm very grateful. Thank you. 22 MR JAY: The next thing is whether I can operate it from my 23 mouse, which I think I can. 24 A. I'm still blank, sir. 25 MR JAY: We're not okay. 2 1 A. No, sir. 2 MR JAY: Success? 3 A. Nothing. 4 LORD JUSTICE LEVESON: Let's get somebody with technical 5 expertise to sort it out. I'll rise for a moment while 6 that happens. Sitting here probably doesn't help 7 anybody. So let's just get out and get somebody to sort 8 it out. Thank you. 9 (10.06 am) 10 (A short break) 11 (10.11 am) 12 LORD JUSTICE LEVESON: Very good. 13 MR JAY: Mr Owens -- 14 LORD JUSTICE LEVESON: Can Mr Aldhouse see a screen? 15 Well ... 16 MR JAY: Mr Owens, when you gave evidence on Wednesday, you 17 explained that original data in hard copy form seized 18 following a search on 8 March 2003 was, over the course 19 of time, put by you and your team onto various Excel 20 spreadsheets. 21 A. Yes. 22 Q. Are we looking now at about 12 icons which constitute 23 those spreadsheets and similar materials? 24 A. Yes. 25 Q. Can we just identify the nature of the material we are 3 1 looking at? The icons entitled Green Book, Red Book, 2 Blue Book and Yellow Book, are they the Excel 3 spreadsheets of data extracted from different coloured 4 notebooks which were seized? 5 A. Yes. 6 Q. And these are the notebooks which I now have in front of 7 me? 8 A. Yes. 9 Q. If you look then at the files described compendiously as 10 RP9, RP15, et cetera, are those the invoices sent by 11 Mr Whittamore, trading as JJ Services, to various 12 newspapers? 13 A. Part of those are, yes. 14 Q. And then the JJ Services invoices 1 and 2 spreadsheets, 15 are they the invoices or remittances paid by the 16 newspapers to Mr Whittamore, trading as JJ Services? 17 A. They are, sir, yes. 18 Q. Then to open one of the books at random -- maybe the 19 Blue Book. Let's hope that -- 20 A. Just double click on it. 21 Q. What I'm going to do is just identify the columns 22 without asking you to comment further. I'm not going to 23 ask you to name any newspapers since I'm just doing this 24 for illustrative purposes. Column A is the newspaper 25 group? 4 1 A. It is. 2 Q. B is the newspaper within the group. C and D are the 3 journalist's name, first name and last name. 4 A. Yes. 5 Q. Column E is the service requested. You told us quite 6 a lot about this last time, Mr Owens, but we can see 7 there various types of service. There's the area 8 search, where you're identifying where someone lives 9 within a particular area -- 10 A. That's correct, yes. 11 Q. Then the occupancy search. You're identifying who lives 12 at a particular address; is that right? 13 A. Like a voter search, yes. 14 Q. The vehicle registration -- well, that one is 15 self-explanatory. The "XD", of course, is ex-directory. 16 Mobile conversion is deriving an address from a mobile 17 number? 18 A. Yes. 19 Q. Conversion, or "conv", is an address from a landline? 20 A. That's correct. 21 Q. "F and F" is friends and family and "DIR" -- we don't 22 see any of those on this screen but I've seen some -- is 23 a directors search? 24 A. That's correct, sir, yes. 25 Q. If we scroll further to the right, you see the 5 1 information getter's name, which is H and I. 2 A. Yes. 3 Q. I think we can name the first of these because I don't 4 think it's his real name. Taff Jones. Do you see that? 5 A. Yes. 6 Q. You mentioned him on Wednesday. Is he the blagger that 7 Mr Whittamore used in relation to British 8 Telecommunications? 9 A. He was very professional obtaining their telephone 10 numbers from the various telephone companies. 11 Q. Was that limited to BT? 12 A. No, it was across the board, many companies. 13 Q. Okay. I'll ask you a bit more about him later on? 14 A. If it assists you, sir, that next name is actually Data 15 Research Limited, which has been named. 16 Q. Okay. Now, the subject names -- I'm going to be very 17 careful with these because some or all of these are 18 confidential. The subject, of course, is the target, 19 isn't it? 20 A. It is, yes, sir. 21 Q. And to see how these play through -- I'm having 22 difficulty getting it to scroll to the right, but 23 I think I'm going to manage. If you look at row 15, 24 that's a vehicle registration search? 25 A. It is, yes. 6 1 Q. You get the fruits of the search f that is the right way 2 of describing it, under O to Q. 3 A. Yes, that would be the VRM, the colour and the make. 4 Q. I'm having difficulty getting this to work. I think 5 it's fallen to sleep. Just hold on. 6 A. If I can suggest, sir, if you just click onto one of the 7 names and then use the arrows at the bottom to go up and 8 down and across, it makes it a lot easier. 9 Q. It's working now. You can see the details: the 10 registration mark and the colour of the vehicle. It's 11 probably all the information you can obtain. 12 There are also various comments, in particular AA. 13 A. You've gone past that. 14 Q. I know I have. 15 A. Yes. 16 Q. Where are these comments derived from? 17 A. They were from the original books. 18 Q. From the original books? 19 A. Yes. 20 Q. Thank you. I'm going to alight on three entries in the 21 Blue Book. First of all, row 693. Just bear with me, 22 Mr Owens. If I use the right-hand scrolling function, 23 I will lose control. This is just for purposes of 24 illustration. You can see there this was a particular 25 search. 693 is a vehicle registration search? 7 1 A. It is, yes. 2 Q. There's also a phone number there. If one goes to the 3 book itself -- it's not so clear, really, from the 4 document, but the corresponding entry in the book 5 relates to a telephone number in Glasgow and then it 6 says: 7 "Specific calls from another phone number." 8 The area code is 01382. I'm not going to read out 9 the whole number. The request was for specific calls 10 from that phone number between 6 and 7 in the evening, 11 the date requested is not clear and the price was 300 12 to 400. Do you know how you would obtain that sort of 13 information? 14 A. I can only guess -- and I think it's an educated 15 guess -- they've actually got the whole of the 16 subscriber's telephone bill, the subscriber's list, what 17 calls they've made during that evening or during those 18 times, and that would only be possible from the phone 19 company. 20 Q. That's the inference -- 21 A. Yes, that's the way I would look at it. 22 Q. I'm looking now at row 711. We can see the surname 23 under -- 24 A. 71 -- oh, yes. 25 Q. I'm not going to ask you to tell us what it is unless 8 1 I'm told that I can refer to it. 2 A. Yes, that's fine. 3 Q. It's for Mr Sherborne to tell me whether he as an 4 objection. No? Okay, I'm not going to refer to the 5 name. You can see the first name is under L. Do you 6 see that? 7 A. Yes. 8 Q. No need to read them out. Can you help us a little bit 9 more about the request. What was being sought here? 10 A. Right. Certainly the orange-coloured one would be an 11 earlier search trying to find out where that named 12 person or those named people -- which area they lived 13 in. 14 Q. Yes. 15 A. The blue ones underneath, they would relate to the 16 actual address, voter's check of the same people. 17 Q. Thank you. So that's the coding you're using on this -- 18 A. That's the colour-coding as the -- it was done. 19 Q. Okay. 20 A. If we go down, I think, just below that, you'll see 21 ex-directory numbers for the two of those. 22 Q. There are two ex-directory numbers as well, are there? 23 A. Just underneath them, the blue coding. 24 Q. Let's see if we can find those. 25 A. There they are. They're the yellow ones. That's the 9 1 ex-directory numbers for the addresses as listed above. 2 Q. We're looking at -- 3 A. There's -- yeah. 4 Q. It's the yellow, is it? 5 A. Yes, if you just go further along, you'll see a name 6 there at the beginning. That's the -- no, the other 7 way. 8 Q. Okay, my apologies. 9 A. That's the name of another private detective that 10 actually obtained them, and they are the two 11 ex-directory numbers for those addresses. 12 Q. Thank you very much. If we go finally in this book to 13 row 1014, we will see that it's a criminal record check. 14 I'm not going to spend further time on it. 15 LORD JUSTICE LEVESON: Just try once more, Mr Jay. 16 MR JAY: I'm getting slightly frustrated with it. 17 LORD JUSTICE LEVESON: I understand that. Try and move up 18 the bar. 19 MR JAY: All right. 20 LORD JUSTICE LEVESON: There you are. You've done it. 21 MR JAY: Right. 22 A. Yes. 23 Q. We'll have to scroll further along, won't we? What is 24 the green code? 25 A. The green code is CRO, criminal records check. 10 1 Q. We will see that in the narrative. I saw that, of 2 course, over the weekend. We can see that in column E. 3 And the targets -- 4 A. Are named, first names and surname. 5 Q. Yes, and it cost 500? 6 A. On that particular line, it's got "successful", 500. 7 Q. Yes. I'm going to close this file and go to the Green 8 Book. The methodology is exactly the same, isn't it, 9 Mr Owens? 10 A. Yes. 11 Q. I want to find row 880. I'll be told whether there's 12 a difficulty with the name here. There may not be on 13 this occasion. Maybe it would be quicker if the 14 technician were to do this for me. I want to scroll to 15 the left. Exactly, thank you very much. Back to the 16 left, please. That's lovely. Right, if you stop there. 17 It's one of the witnesses who gave evidence. 18 Mr Sherborne will tell us whether there's a problem, but 19 what this shows is an occupancy search and two 20 ex-directory searches. 21 A. Can I just ask, whatever the technician's done, he's 22 altered the colour so I can only see the first entry. 23 Q. It should be a light blue. 24 A. Yes, that's an occupancy search. 25 Q. Also I think there are two ex-directory searches in the 11 1 yellow? 2 A. Yes. 3 Q. At 881 and 882. 4 A. Yes. 5 Q. Then there's an associated individual -- 6 A. Yes. 7 Q. -- at 803. 8 A. That's an occupancy search followed by ex-directory 9 search, telephone number. 10 Q. Thank you. That cross-references with some evidence 11 that we heard. But to be clear, the ex-directory 12 searches were for landlines, not mobile phones? 13 A. You'd have to go back and let me have a look. 14 Q. We saw there ex-directory -- 15 A. That's all ex-directory (inaudible), but if you go back 16 to -- 17 Q. So we have to go all the way to the left to see the 18 phone numbers? 19 A. I'll tell you whether it's a landline or a mobile. Yes, 20 they're landlines. 21 Q. We can see the part of the country. 22 Okay, now the Yellow Book. Towards the end of the 23 book, we have members of our national team. Not 24 necessary to say which but it will be fairly obvious. 25 2002, a whole load of ex-directory searches. There's 12 1 one interesting line at 5798, again, without identifying 2 the paper. I don't know whether you can help me to get 3 to row 5798. 4 A. That's it. 5 Q. If we go to the far right, column AA -- hold on. 5798. 6 The request is: 7 "Phone bill for June 2001." 8 And the price was 800? 9 A. That's what it's got on there, yes. 10 Q. But without knowing more about what the purpose was 11 behind this request, we can't take it further, can we? 12 A. The only thing I can say about that one is Whittamore 13 did that himself, because that is a blag, as we put it, 14 wherever it's white. I think -- could I ask you to go 15 to the far end? There might be some reference where 16 Whittamore's actually phoned up the telephone company 17 himself and got it. If you could go right to the end. 18 LORD JUSTICE LEVESON: The far right or far left? 19 A. The far right as you're looking at the screen and just 20 go back a bit. Little bit more. 21 MR JAY: There's the information-getter column, isn't there, 22 which we saw. I think it's a bit further to the left. 23 A. If it's white, Whittamore's done it himself, but he 24 hasn't -- he normally puts down "such-and-such a blag" 25 along the line, but he hasn't on that one. 13 1 Q. Okay. As I said, we can't begin to take that further -- 2 A. No. 3 Q. -- without knowing more about what the purpose was 4 behind it. 5 Can we look, please, at row 6593. Thank you. This 6 starts off as being a mobile conversion search and an 7 occupancy search. 8 A. Can you go right over to the left, because you go up to 9 row F here. I need to go to row C. 10 Q. Okay, so we can scroll ... 11 A. That's it. 12 Q. We take 6593 and 65949 together. 6593 is the mobile 13 conversion? 14 A. Yes. 15 Q. And 6594 is the occupancy, but there's a mobile number 16 there? 17 A. Yes. 18 Q. If one looks at the entry in the Yellow Book itself, it 19 reads "Mob Conv", then a telephone number, then 20 underneath that "Occ". Then it says: 21 "Cancelled by charged." 22 An address is given in brackets. Do you know what 23 "cancelled but charged" means or why it might have been 24 included here? 25 A. No. 14 1 Q. If we can go a little bit further down, however, to row 2 6603, where we have a number of -- 3 A. Family and friends. 4 Q. Is that the magenta or a violet? 5 A. Yeah. That's the colour-coding for family and friends. 6 Q. It's clear from the original book that there was 7 a landline number. It then says: 8 "F & F on T-P." 9 Presumably that's telephone? 10 A. Telephone, yes. 11 Q. Then you can see ten family and friends' numbers -- 12 A. Can you scroll up a bit, please? 13 Q. -- which we with see under column G. 14 A. I can only see four. You'll have to scroll up a little 15 bit more. No, scroll up, please. That's it. Keep 16 going. That's it. 17 Q. We can see them all there. The mobile number under F is 18 the mobile number which had already been obtained? 19 A. In fact, you can still see it above there, where it's 20 been obtained, and then it's obviously appeared on the 21 list of family and friends of whoever that number would 22 be, the main number belongs to. 23 Q. That's correct, and there's also a 0041 number, which 24 may be Switzerland. It doesn't really matter. 25 To the right, it says: 15 1 "Charge 500." 2 And then: 3 "100 for Taff agreed." 4 It's unclear for that whether the 500 is for all 5 ten numbers or for each number, but it may well be for 6 all ten numbers. 7 A. It could be. We can't be -- 8 LORD JUSTICE LEVESON: A name and then a price? 9 MR JAY: That's right. 10 You can't help us under column AB, above the -- 11 because the inference you drew at the time, if you look 12 at columns AA and AB, is that it was 500 for each 13 family and friend. 14 A. That's what it looked like when it came out on this 15 disk, but actually it's just one entry, 500, and it's 16 "100 agreed for Taff", so we can't say whether it's 17 500 or 5,000. 10 at 500, I mean. 18 Q. Although we do know that British telecommunications 19 allow you 10 family and friends' numbers. It's been 20 their policy for as long as I can remember. 21 A. Yes. 22 Q. Under column AB, we see a 20 and a 22. We don't know 23 what those are. They might or might not be the ages of 24 the individuals concerned. As it happens, if they are, 25 the ages are not quite right, according to my research. 16 1 That's probably as far as we could take that one. 2 Sorry, I've missed out one point. If we could go 3 back to the yellow and row 146 to 156. 146, sorry. Go 4 right up. 5 Thank you. 146 concerns a newspaper which isn't in 6 this jurisdiction. There's certainly one CRO search 7 there, isn't there? 8 A. Yes. 9 Q. Then there's an area search and occupancy search? 10 A. Yes. 11 Q. But if you look further down at 152 to 153, there's 12 a mobile conversion? 13 A. Yes. 14 Q. And then between 156 and 165 there are a series of 15 searches? 16 A. Yes. 17 Q. Ex-directories, occupancies? 18 A. All in the same name, yes. 19 Q. And all in the same name. Okay. 20 We'll move now to the Red Book. Go straight to row 21 1281. The reason why I'm doing this is it 22 cross-references with evidence we have heard. Nearly 23 there. Right. Can we scroll to the right, please? We 24 see some names under N. 25 A. Yes. 17 1 Q. Is there a problem mentioning these? I'm told there is 2 no problem mentioning these. The surnames or last names 3 are Grant and Hurley. 4 A. Correct. 5 Q. I have the original open in front of me. There was an 6 area search for both Grant and Hurley? 7 A. Yes. 8 Q. South of the river, if I can put it in those terms. 9 Then there's a vehicle registration search. Could you 10 tell us a little bit about that because I know you 11 investigated that? 12 A. Yes. Basically we went to see Mr Grant at his offices 13 because a number -- a VRM, vehicle registration mark, 14 comes up against his name. As it turned out, he 15 couldn't recall it and possibly thought he may have been 16 seen in -- it may be a friend's car he's been seen in or 17 was talking to somebody standing by that car, but he 18 personally couldn't remember the car itself. 19 Q. Yes, fair enough. Were there any telephone numbers, 20 including mobile numbers, relating to Mr Grant? 21 A. I -- I'd have to check the books but I don't think so. 22 There may have been. 23 Q. There are none I've been able to see. 24 A. Okay. 25 Q. To close this file and move now to RP9 and RP15. These 18 1 are the invoices out to the newspapers? 2 A. Yes, yes. 3 Q. They're put together in a fairly similar way, if not 4 quite the same way, as -- 5 A. If you could scroll to the left so I can -- thank you. 6 Q. -- the books themselves. 7 A. Right, yes. 8 Q. We can see the methodology. The newspapers, the person 9 who is to be invoiced within the newspaper, the service 10 requested -- well, H is the date of the work, which we 11 haven't covered before. The service requested is I. 12 "Confidential enquiries", we see. Could you help us 13 a bit about those? 14 A. Not really. They were -- that's what they were, 15 confidential enquiries. That's all we -- we got some 16 hints off the comments mark in some of them. But no, in 17 the main it was just "confidential enquiries". 18 LORD JUSTICE LEVESON: That's the words written in the book? 19 "Confidential enquiries"? 20 A. Yes. Obviously we'd -- he wouldn't tell us and we never 21 got an opportunity to ask any members of the press what 22 they might have been. 23 MR JAY: If one goes to column AE, the "Additional 24 comments", one can see this in relation to some 25 confidential enquiries quite a lot further down. 19 1 A. I think you've gone past it. 2 Q. I thought it was 1813. We see a series of 3 confidential -- those are the 49 -- 4 A. I think if you go back to where you were, sir, the 5 confidential enquiries. 6 Q. I think my note may be incorrect. It was quite a lot 7 higher up, wasn't it, Mr Owens? Let me keep column AE 8 in sight. 9 A. Okay. 10 Q. Right. And just scroll up. 11 A. Where you are at the moment is actually referring to all 12 the ex-directory numbers that were obtained. There we 13 go. That's it. 14 Q. These are some annotations. We see reference to some 15 blags. 16 A. Yes, where his company (inaudible) individuals. But 17 most of the comments are contained in invoices, too. 18 There's an awful lot of references to comments there 19 which you could possibly associate with a story that was 20 in the press. 21 Q. We get some idea of the costs of each service from 22 column AG. 23 A. Yes. 24 Q. See if we can summarise this, since I've looked at this 25 carefully. The price for an occupancy search appears to 20 1 be 17.50 -- 2 A. That's correct, yes. 3 Q. -- in general. The price of an area search is 30? 4 A. Yes. 5 Q. The price for an ex-directory search varies a bit, but 6 it's around 75? 7 A. That's correct. 8 Q. Confidential enquiries usually have a special price? 9 A. They can be anything. 10 Q. The mobile conversion is 75? 11 A. Correct. 12 Q. The vehicle registration search costs anything in 13 between 150 to 200. 14 A. It went up. It was 150 to Whittamore. It went up to 15 200 when, shall we say, the DVLA source was neutralised, 16 because somebody else was doing it then. 17 Q. Thank you. From row 1070, we have a series of searches 18 which are all described as "occupancy" under column I, 19 but were charged out at 40. 20 A. Yes, this was -- 21 Q. You heard me say that the occupancy was 17.50. Here we 22 are. We can see them now. What do you think or what do 23 you know those to be? 24 A. I know they're all ex-directory numbers. They were 25 bundles of what I'd call documents he was going to hand 21 1 in to his accountant for tax purposes, so he couldn't 2 exactly put "XD" next to each one, so he just put 3 "occupancy" there. If you go right to the other end, 4 you'll see it's our friend Taff Jones, the expert in 5 phone work, getting phone numbers, that he was paying it 6 to, but they were more or less tax forms that he was -- 7 Q. Okay. Looks as if one's getting a discount for quantity 8 because it's down from the 75. 9 A. No, that's what he paid to Taff. 10 Q. Pardon me. 11 A. Then he would charge the press 75. 12 Q. Thank you, Mr Owens. 13 A. So he'd make 35 on every transaction. 14 Q. Now the JJ Services invoice number 2 -- there's a mass 15 of data on this. I'd quite like to scroll so I can see 16 the columns. Here we go. It's fairly similar, isn't 17 it, Mr Owens -- 18 A. Yes, very similar. 19 Q. -- to the previous -- 20 A. When you were saying before about comments, this 21 particular document has most of the comments that you 22 would associate with a newspaper story. 23 Q. Yes. Let's see whether that is borne out. I think it 24 will be. I imagine I might have noted my papers in the 25 wrong place. Let's have a look at row 1813 and just see 22 1 whether there are any interesting comments there. Yes, 2 we are seeing some, I think. There's quite an 3 interesting one at 1816. 4 A. B&B Sex Party. 5 Q. Just gives us a flavour. Of course, we have no idea 6 whether any of this ever found its way into stories. So 7 a veritable treasure trove of information in all these 8 files. 9 What I've done over the weekend, Mr Owens, is check 10 the electronic Excel files for the green, red, blue and 11 yellow books respectively against the originals of the 12 books, and the spreadsheets are borne out by -- it would 13 be wrong to say an analysis of every entry in the books, 14 but certainly dipping into numerous entries. 15 A. Yes, sir. 16 Q. What I haven't been able to do is cross-reference 17 entirely or really significantly the audit trail through 18 from, say, the Blue Book back into the RP19 and RP15 19 files and then into the JJ invoices 1 and 2 files. 20 A. We managed to do that, but over much more than 21 a weekend. 22 Q. Yes, okay. Thank you, Mr Owens. I'm going to ask you 23 now, please, if you can bring to hand a file which 24 contains various legal advice. 25 LORD JUSTICE LEVESON: Has that concluded the work in 23 1 relation to this schedule? 2 MR JAY: It does. 3 LORD JUSTICE LEVESON: Is there any reason why we shouldn't 4 now open up the proceedings so that those who are not in 5 this room can see any document that is exhibited? 6 MR JAY: There is no reason unless a core participant wishes 7 matters to be explored as a result of the evidence I've 8 adduced from Mr Owens. I've received no notification 9 that there are -- 10 LORD JUSTICE LEVESON: Well, does anybody want to raise any 11 question which will require us to look again at these 12 books which contain extremely confidential information? 13 MR JAY: Well, the question I'm asked to put can be posed 14 when the public is back in this room. 15 LORD JUSTICE LEVESON: All right. 16 MR JAY: I think we can therefore close these files, please, 17 and perhaps pause for a minute or two to see whether 18 there are people waiting outside. 19 LORD JUSTICE LEVESON: Yes. I'm keen to admit the public to 20 this room and to open up the document screens to the 21 other room as soon as possible. Is that going to take 22 a couple of minutes? 23 TECHNICIAN: It will, sir. We'll have to have technicians 24 to do it. 25 LORD JUSTICE LEVESON: Right. I think we'll do that so that 24 1 we've kept people out of the full detail for as limited 2 a period of time as possible. 3 I'll rise a moment while that is done. Thank you. 4 (10.51 am) 5 (A short break) 6 (10.56 am) 7 LORD JUSTICE LEVESON: Mr Jay, before you carry on, it 8 perhaps is worthwhile just summarising that which you've 9 just done, which for those who didn't have access to the 10 data on screen must have been extremely difficult to 11 follow. 12 It's abundantly clear, looking at the electronic 13 records, which you've checked against the actual 14 documents, that Mr Whittamore had collected together 15 a vast amount of personal data. The documents identify 16 the names of titles and specific journalists at the 17 titles apparently or inferentially making the request. 18 It identifies the names of people from a wide range of 19 public life and in the public eye, and provides 20 addresses, telephone numbers, mobile telephone numbers 21 and charging details for that information. It's not 22 necessary to go into the identity of the individuals, 23 save and except as you did in relation to Mr Grant, 24 because of course a question was asked of him which 25 created some doubt as to whether he had been shown 25 1 information from this particular investigation -- it's 2 clear that he was -- but it's not necessary otherwise to 3 identify titles or names and certainly not necessary to 4 identify the persons who were the targets of enquiry. 5 In relation to some of them, it is absolutely right that 6 there may well be a public interest justification in the 7 enquiry. In relation to others, however, it is 8 difficult, if not impossible, to see what public 9 interest justification there could be. 10 MR JAY: Thank you, sir. 11 LORD JUSTICE LEVESON: Do you dissent from that summary? 12 MR JAY: No. 13 LORD JUSTICE LEVESON: Thank you. 14 MR JAY: Mr Owens, I'm asked to pose this question to you: 15 do you know how far back in time the books go? 16 A. I think the earliest entry we found in the documents 17 would be about 1997, but it's my guessing that the books 18 stretch from about the end of 2000 to the start of 2003. 19 Q. Mr Owens, do you recall going to see counsel in 20 Birmingham on 3 October -- 21 A. I did, yes. Down in Birmingham, yes. 22 Q. We have an attendance note of that conference. The last 23 five numbers are 48710. 24 A. I'm sorry, could you tell me what the tab is? 25 Q. It might be tab 2 in front of you, but it's going to be 26 1 put on the screen and you'll see it. 2 A. Oh, yes, okay. Yes, that's correct. 3 Q. I'm going to read out salient parts. It's a conference 4 to discuss Operation Motorman and the instructions to 5 counsel which have been sent. Can we look at Taff 6 Jones, which is at the very bottom: 7 "With regard to Taff Jones, he obtains BT 8 ex-directory definitely numbers." 9 Is that information you obtained, Mr Owens? 10 A. Yes. That was found amongst the papers and later 11 confirmed by Taff Jones himself. 12 Q. Did you interview him? 13 A. Yes. 14 Q. "He explained that Taff Jones is a biker and an 15 ex-soldier. The method he uses is by ringing from 16 mobile phone numbers, which he changes every three 17 months or so. There is one phone number with telephone 18 billing contacting Whittamore and billing in reverse, 19 Whittamore to Jones." 20 So taking that in stages, who is he ringing from his 21 mobile phone numbers? 22 A. He's using the -- he -- normally BT or whichever phone 23 company, purporting to be an engineer and getting the 24 information he wants. And then, after he's got the 25 information, he would ring Whittamore and pass him the 27 1 details that he's asked for. 2 Q. Thank you? 3 A. So it's between the telephone companies and Whittamore, 4 those particular phones. 5 Q. If we go to the next page, which is 48711, we'll learn 6 some more at the top of the page: 7 "It is clear, however, that he uses EIN numbers (an 8 EIN number is a number given to a BT employee and has an 9 8 as the prefix) ..." 10 So it's a form of password; is that right? 11 A. Yes. 12 Q. "... in order to pretend to be an engineer to provide 13 this EIN number on which there are no checks made." 14 A. That's correct, yes. 15 Q. Again, did you deduce that from the papers you seized -- 16 17 A. Correct, yes. 18 Q. -- and interviewing Mr Jones? 19 A. Yes, sir. 20 Q. Then it carries on: 21 "Data Research Limited were the subject of the 22 search warrant executed by Devon and Cornwall Police on 23 which [you] attended on behalf of the 24 Information Commissioner. As part of the documentation 25 to which there is an assertion the privilege, another 28 1 document found was a blaggers manual." 2 A. Yes. 3 Q. "The use of EIN numbers, a method of obtaining 4 information links, was in it. Currently there is no 5 evidence to link Jones to particular mobile phones, 6 although Roy is able to say that he has phoned him on 7 one of the numbers." 8 A. Yes, that's correct. 9 Q. We can look then under the heading "Gunning". We can 10 see further information in relation to area searches, 11 but let's look at what counsel advised under his name 12 with regard to the prosecution of the press. This is 13 what he said: 14 "Although there is evidence to support 15 a prosecution, a prosecution would not be considered 16 favourable because of the financial aspect." 17 A. Yes. 18 Q. Put in other terms, what was he saying there? 19 A. Basically said it would be too expensive. 20 Q. Yes. Then counsel asked if there was any way in which 21 friends and family details could be lawfully obtained 22 and there is not? 23 A. No. 24 Q. Had you carried out any enquiries to ascertain that? 25 A. Well, obviously we'd spoken to BT and asked them and 29 1 they've said, "Not unless you know the people or you're 2 one of the friends or family who might know them", but 3 trying to get that sort of information had to be 4 illegal. 5 Q. Yes. Did you make similar enquiries of DVLA at Swansea? 6 A. Well, yes, obviously we dealt with Swansea quite a bit. 7 But there are legal ways of getting numbers -- or 8 person -- the owner's details from Swansea, but that's 9 conditional. It's -- you write in, pay a fee, but it 10 has to be on one of their special reasons. 11 Q. Yes. We've done some research on that and can submit 12 a note together with policy advice from Swansea, which 13 supports what you're saying. 14 A. Yes. 15 LORD JUSTICE LEVESON: In other words, if you've had an 16 accident with car that's driven off and you've got the 17 registration number, then that would be a reason to 18 get -- 19 A. I've done it myself when my daughter had an accident. 20 Well, a car hit her when she was on the -- a nightclub 21 car park, and the police couldn't help because it wasn't 22 on the road. So that would be a legitimate request. 23 MR JAY: Yes. That's clear. 24 I'm going to ask you, please, to look at counsel's 25 written advice, which is under tab 4, which privilege 30 1 has been waived by the ICO. It bears the number 48716. 2 A. Yes. 3 Q. This is advice that counsel gave, I think, on 4 22 December 2003, which was now nine months after the 5 research, wasn't it, Mr Owens? 6 A. December would be nine months, yes. 7 LORD JUSTICE LEVESON: So just let's understand this. This 8 is a barrister who has been instructed by solicitors 9 acting for the Information Commissioner to advise on the 10 material that you've obtained in relation to a potential 11 prosecution? 12 A. Yes, sir. 13 LORD JUSTICE LEVESON: So his opinion is his opinion and 14 there's a value for that purpose but none other. It's 15 to help the Information Commissioner make a decision? 16 A. That's it, yes. 17 LORD JUSTICE LEVESON: Right. 18 MR JAY: In paragraphs 2 to 4 of the advice, if I can 19 summarise it, he was saying effectively there's enough 20 evidence to allege a conspiracy to contravene Section 55 21 of the Data Protection Act and the parties to the 22 conspiracy, at least at that stage, were going to be 23 Messrs Whittamore and Dewes, although we know 24 subsequently that four individuals were on the charge or 25 on the indictment relating to that conspiracy. 31 1 I really want to turn to the second page, under the 2 heading "Journalists". This is 48717. This is what 3 counsel says: 4 "Having regard to the sustained and serious nature 5 of the journalistic involvement in the overall picture, 6 there can be little doubt that many, perhaps all, of the 7 journalists involved have committed offences." 8 A. Yes. 9 Q. I don't think he should be interpreted as saying that in 10 relation to each and every request, each and every 11 journalist will necessarily have committed an offence. 12 He's not going that far? 13 A. No. 14 Q. Then he says -- and it's true it's only counsel's 15 inference from his reading of the papers: 16 "The inference, overwhelming, it seems to me, is 17 that several editors must have been well aware of what 18 their staff were up to and therefore party to it." 19 Really, I'm introducing this for the next paragraph: 20 "I understand that policy considerations [it should 21 say] have led to their view [it should be 'the view'] 22 that enforcement of some sort rather than prosecution is 23 the way forward in respect of the 24 journalists/newspapers." 25 A. That's what it says, yes. 32 1 Q. That sentence may well be consistent with what you were 2 telling us on Wednesday, Mr Owens, but apart from the 3 meeting you say took place in mid-March 2003, is there 4 any further light you can throw on that sentence? 5 A. The meeting which took place in mid-March? 6 Q. This is the meeting which you told us took place 7 involving Mr Thomas and Mr Aldhouse. Do you remember 8 that? A week or so after the raid, which was on 9 8 March. 10 A. Oh yes. Nothing, really, apart from basically what I've 11 already said, the fact that I -- it was my suggestion 12 that we go up and down, right the way to the top and 13 right the way to the bottom, and the evidence was there, 14 when Mr Aldhouse said -- made those comments that he 15 did, that they're too big for us to take on. 16 Q. Whatever conclusions can be drawn from that sentence, we 17 can draw them. What counsel goes on to say: 18 "I understand and sympathise with that approach. 19 This is, I believe, the first occasion upon which the 20 scale of the problem has come to light and it may not be 21 unreasonable to give the Press Complaints Commission the 22 chance to put their house in order." 23 A. That's what he's put. That's Mr Thorogood, I think. 24 Q. We'll see whether that's reflected on Friday by 25 documentation which has already been made available. 33 1 Then counsel says: 2 "However, the evidence of involvement [it should 3 read 'is significant'] and often unpleasant offending 4 is, in my opinion, clear enough in very many cases. You 5 would be appropriate to caution identified journalists 6 and their editors. I doubt whether a formal caution 7 would be accepted as such but informal cautioning by 8 letter with a suitable selection of (heavily edited) 9 evidence attached should achieve the aim." 10 Of course, by that point no journalist had been 11 interviewed. 12 A. No, this -- if you're talking about this being 13 in December, we were stopped from interviewing them 14 in April/early May at the very latest. 15 Q. Yes then his final shot: 16 "Those defending in the prosecution might seek to 17 make capital from the fact that the journalists are not 18 being prosecuted. The judge might also comment on the 19 basis that the journalists are the ones (it seems) who 20 created the demand for this offending. With this in 21 mind, it is a sensible precaution to equip me at some 22 point before trial with the detail of the reasoning not 23 to prosecute. I may need to explain or even defend the 24 decision to the judge." 25 A. That's what it says there, yes. 34 1 Q. Yes. Okay, I'm not going to comment further on that. 2 It speaks for itself. 3 Mr Owens, is there anything else you would like to 4 say? You have expanded on the evidence you've given on 5 Wednesday, we've cross-referenced some of that evidence 6 with documents which are available, we've seen the 7 underlying material now, and can draw the appropriate 8 conclusions. Is there anything else -- 9 A. No, I think everything's been covered, sir. 10 MR JAY: Thank you very much. 11 LORD JUSTICE LEVESON: Thank you very much for coming back, 12 Mr Owens. 13 A. Thank you. 14 MR JAY: I'm moving on now to Mr Aldhouse. 15 LORD LEVESON: Very good. 16 A. Do you want me to move these? 17 LORD JUSTICE LEVESON: Probably just leave them there and 18 we'll see. 19 MR JAY: Mr Aldhouse, if I could invite you to come forward, 20 please. 21 MR FRANCIS GEORGE BODEN ALDHOUSE (sworn) 22 Questions from MR JAY 23 MR JAY: Mr Aldhouse, I invite you to make yourself 24 comfortable and then to provide us with your full name. 25 A. I'm Francis George Boden Aldhouse. 35 1 Q. You've provided us, Mr Aldhouse, with a short witness 2 statement which is dated 16 November this year. Is that 3 right? 4 A. That's right. 5 Q. You've signed the statement and verified its truth. Is 6 this your evidence? 7 A. Yes, it is. 8 Q. Can I ask you, please, about yourself, first of all, 9 Mr Aldhouse. You are a solicitor by training; is that 10 correct? 11 A. That's right. 12 Q. And you, in December 1984, became the deputy to the 13 first data protection registrar; is that right? 14 A. That's right. 15 Q. Is the data protection registrar more or less the 16 forerunner or the then incarnation of the 17 Information Commissioner under the 1984 Act? 18 A. The then incarnation I suppose is the right way of 19 putting it because it's the same office. They just 20 changed the name by statute. 21 Q. Right, and what happened was the Data Protection Act 22 1998 came into force on 1 March 2002 to bring domestic 23 law in line with the European directive and at that 24 point you became the deputy -- is this correct -- to the 25 Information Commissioner? 36 1 A. That's right. 2 Q. And you stayed as such until your retirement -- is this 3 correct -- on 13 January 2006? 4 A. That's correct. 5 Q. Can I ask you a general question, please, about the 6 criminal law before the Data Protection Act 1998 comes 7 into force. We know what Section 55 says, but is this 8 right, that the first criminal offence was introduced in 9 1994 by way of amendment into the Data Protection Act 10 1984? 11 A. Yes, that's correct. There were other sort of 12 administrative criminal offences, but so far as this 13 sort of activity is concerned, it was the 1994 Act that 14 made the difference. 15 Q. Can I ask you, please, a question on Section 55 of the 16 Data Protection Act 1998. I don't know whether you have 17 that to hand, but you probably know it off by heart. 18 A. Not by heart. 19 Q. This creates the offence of unlawfully obtaining a 20 sector of personal data. Under subsection 1: 21 "A person must not knowingly or recklessly ..." 22 There are two limbs there and "recklessly" will be 23 a subjective test of any criminal statute, won't it, 24 Mr Aldhouse? 25 "... without the consent of the --" 37 1 LORD JUSTICE LEVESON: I think there's some objectively 2 there as well. 3 MR JAY: Yes. One would draw inferences, most definitely. 4 I'm just interested about (a) and (b), because there 5 may be a difference of view about this. Under 6 subparagraph (a): 7 "... obtain or disclose data or the information 8 contained in personal data, or (b) procure the 9 disclosure to another person of the information 10 contained in personal data." 11 Now, if we're looking at the position of 12 a journalist -- or it can be an insurance company or 13 anybody else -- does that fall within subparagraph (a), 14 subparagraph (b) or both? 15 A. I'm -- if you'll forgive me, my voice is going. I think 16 I'm inclined to the view that it could fall within both. 17 I think the fact that you use an intermediary to obtain 18 the information doesn't mean that you have not yourself 19 obtained it. 20 Q. Yes. 21 A. So -- and similarly, it could be said that you have 22 procured the disclosure. I think it could be an offence 23 under either A or B. 24 Q. On reflection, if it helps, that's also my view. 25 I might have said -- indeed, I did say in opening the 38 1 case -- that a journalist would only fall within 2 Section 55(1)(b). Thinking about it over the weekend, 3 I would respectfully agree with you. It probably falls 4 within both. 5 We know from other evidence that on 8 March 2003, 6 admittedly some time ago, there was the initial 7 execution of a search warrant for a search which led to 8 Operation Motorman. Did you get to learn about it at 9 the time, Mr Aldhouse? 10 A. I cannot recall when I first heard about Motorman. 11 You'll forgive me, but it's eight and a half years ago 12 and memory fades and of course there were other things 13 going on. No, I couldn't tell you exactly when I first 14 heard about the operation. 15 Q. In terms of your responsibilities at that time, 16 Mr Aldhouse, was it part of your role as the deputy to 17 provide direction to the head of investigations? 18 A. Yes. What had happened was the previous head of 19 operations and second deputy had retired in 2001, and 20 the head of investigations then reported to me. I don't 21 think it would be right to say that I directed 22 investigations in any way, but I supervised the person 23 who ran the investigations department. 24 Q. We heard who that person was on Wednesday, but could you 25 confirm her identity? 39 1 A. Yes. At the time we're talking about, it was 2 Jean Lockett. 3 Q. Yes. Were you head of operations? 4 A. No. No. Indeed, I think, as I say in my statement, the 5 focus of my work, certainly by that stage and in 6 continuing years, was on policy work. 7 Q. The evidence Mr Owens gave us on Wednesday is that a few 8 days after the search -- so we are now in mid-March of 9 2003 -- there was an informal meeting involving you and 10 Mr Thomas where Mr Owens gave an explanation of what he 11 found. First of all, do you have any recollection of 12 any such meeting? 13 A. I cannot recall such a meeting. I wondered whether this 14 was just because, you know, time passes and my memory 15 had faded, so I took the opportunity of consulting my 16 old -- or the print-outs from my old electronic diary, 17 which I've kept, and I cannot find any such meeting 18 in March 2003, or indeed in April. 19 Q. Is it your evidence that you simply cannot remember 20 whether there was such a meeting or is it your evidence 21 that you are fairly sure that there wasn't such 22 a meeting? 23 A. I think my evidence is that if there was a meeting, it 24 would have been a very casual one and a very short one, 25 and certainly not scope for a full briefing. If it had 40 1 been a carefully arranged, lengthy meeting, it would 2 have been recorded. I don't recall any such meeting and 3 I have no record of it. 4 Q. So that I put to you what Mr Owens' version is -- and we 5 heard his evidence on Wednesday -- his clear evidence to 6 the Inquiry was that it was you, Mr Thomas and he. He 7 had carried out a cursory analysis of the material and 8 was able to demonstrate an audit trail, as he put it, 9 from the newspaper through the journalist to 10 Mr Whittamore. The blagger was involved, the charging 11 element was established, the invoices were sent out and 12 the invoices were paid, so there was a complete picture 13 which he wished to demonstrate to you and did. Do you 14 remember anything about that at all? 15 A. No. And indeed, the information I have heard and seen 16 this morning is new to me. I had not had that set out 17 in that way to me before. 18 Q. Have you seen these books before, the red, yellow, green 19 and blue books? 20 A. I've certainly not seen the content. I can't say I've 21 never seen the books because it's just possible if I was 22 visiting Jean Lockett's office or something, someone 23 might have said, "Oh, that's the Motorman books", but 24 no, other than that, I have not seen those books before. 25 Q. Was there anything in your office at the time which was 41 1 as big or as important as Operation Motorman? 2 A. From an operational investigations point of view, that 3 was probably the largest investigation. 4 Q. Were there discussions over the months between you and 5 Mr Thomas regarding strategic decisions and policy 6 decisions which would bear upon the future conduct of 7 the investigation and the prosecutions? 8 A. I don't recall any discussions. I do recall that 9 Richard Thomas decided that he wanted to pursue the 10 route of going to the Press Complaints Commission and 11 writing to Sir Christopher Meyer, but I have to say 12 I think that was Richard Thomas' decision rather than 13 the result of some discussion. 14 Q. I'm not suggesting, Mr Aldhouse, that you were party to 15 any decision but were you aware, therefore, that 16 a policy decision or a strategic decision was taken 17 whereby the matter would be taken up through the PCC 18 rather than criminal prosecution of the journalists? 19 A. I certainly knew that Richard Thomas wanted to go to the 20 PCC as a strategic approach. I don't think I knew that 21 he had completely ruled out prosecution. 22 LORD JUSTICE LEVESON: Would you expect to be involved in 23 this sort of discussion when you're the deputy? This 24 was a very substantial investigation. It was obviously 25 taking up some time and really did hit some very 42 1 important buttons, on the face of it. 2 A. Yes, it did, but I was otherwise engaged. Half of my 3 time I was in Brussels on article 29 working party 4 business or the third -- joint advisory authority 5 business, so it might well be that -- I mean, no, it was 6 the fact that things just have to happen in my absence. 7 LORD JUSTICE LEVESON: Oh, I'm sure, yes. 8 MR JAY: You were there for half the time, though, weren't 9 you, Mr Aldhouse? 10 A. I can't remember the amount of time, but I was there 11 some the time, yes. 12 Q. I think the point I was driving at has already been 13 made, but isn't it a bit strange, Mr Aldhouse, that with 14 the policy ramifications that this might throw up and 15 the potential cost implications for your office, that 16 you weren't at least involved quite closely in 17 discussions with Mr Thomas regarding the strategic 18 direction of Operation Motorman? 19 A. What can I say? It's for the Commissioner to decide how 20 he runs the office. If -- and it is worth bearing in 21 mind, of course, that it is -- that the Commissioner is 22 a one-man band and if the Commissioner decides to take 23 a route, so be it. 24 Q. Yes. So is it your evidence that the Commissioner 25 decided to take a route -- and he'll tell us about that 43 1 on Friday -- but you weren't involved really in any 2 significant way in the discussions bearing upon the 3 direction he might take? 4 A. I certainly don't recall that, no, and I don't just 5 think that's failing memory. 6 Q. Had you been asked for a view by anyone, in particular 7 Mr Thomas, what would your view have been in 2003? 8 A. I think my view in 2003 would have been -- certainly if 9 I'd seen the information, had it laid out before me as 10 it's been laid out before you this morning, I think my 11 view would have been: we really ought to find a way of 12 pursuing this, this is a major exercise, I'm not at all 13 sure that it's something that could be handled by just 14 two people, an exercise that requires some sensitive 15 handling -- because I think if you simply approach 16 journalists, they are likely to say, "Why should we 17 respond is to you at all?" So there would need to be 18 some careful construction of the case and the 19 investigation. I'm not quite sure whether we could have 20 put together the resource to handle such an 21 investigation. Not having been put in the position of 22 taking the decision, I can't say how I would have 23 handled it but I do think that -- yes, I do think there 24 was a case for taking the involvement of journalists and 25 newspapers further. 44 1 Q. You weren't party, therefore, to a timorous approach 2 which was dictated by two considerations: first, 3 a concern that it would be rather expensive and you 4 would be at risk as to the cost, of course, if the 5 newspapers obtain their own legal advice, and secondly, 6 that the journalists might put up difficulties in the 7 way of further investigation? You weren't party to that 8 sort of policy, were you, Mr Aldhouse? 9 A. No, and if I might comment on the expense of 10 prosecution, the practice of the office would be -- if 11 faced with a very expensive investigation or 12 prosecution, would be to approach the sponsoring 13 department, the Home Office, then LCD, Ministry of 14 Justice, and say, "Look, we might be at risk of 15 considerable expense here. Will you stand behind this 16 with grant in aid if necessary?" 17 LORD JUSTICE LEVESON: Hang on. At this time, 2003, we're 18 talking about the Home Office, are we? 19 A. I think we are. 20 LORD JUSTICE LEVESON: Because the Ministry of Justice 21 doesn't come on the scene until 2008. 22 A. I can't remember when responsibility transferred from 23 the Home Office to Lord Chancellor's Department, but 24 whichever sponsoring department it was. 25 MR JAY: Did you apply your mind to these issues at all, 45 1 Mr Aldhouse? 2 A. In connection with this case? 3 Q. Yes. 4 A. No. 5 LORD JUSTICE LEVESON: Is that right, Mr Aldhouse? You say 6 in paragraph 8 of your statement, in relation to the 7 suggestion "We can't take the press on": 8 "I don't believe I ever said anything remotely 9 corresponding to this quotation. It does not represent 10 my view then ..." 11 A. "... or now." 12 LORD JUSTICE LEVESON: That suggests that you did reach that 13 view then. 14 A. I'm sorry, I was responding to the question about 15 expense. 16 LORD JUSTICE LEVESON: I see. 17 A. Had I applied to my mind to the costs of a Motorman 18 prosecution? No, I was never asked to. But the 19 question about "the press are too big to take on", 20 simply not my view. Certainly not the sort of language 21 I would have used, and I think I would point to the 22 experience that Elizabeth France and I had in 23 discussions with the media in 1996, that we were quite 24 happy to stand up to the media and try to negotiate with 25 them. I wish I still had the copies of the press 46 1 gazette articles roundly attacking Elizabeth France and 2 myself. So I don't fear the media, but there are always 3 other considerations. 4 MR JAY: Did you see counsel's advice, the one I referred 5 to, 22 December 2003, at the time? 6 A. The first time I've seen it was this morning. 7 Q. We know you were involved at some later stage. There 8 was a conference with counsel on 27 May 2005, which is 9 our document 48808. 10 A. Do I have that? 11 Q. I don't know whether it is in those files but we'll 12 provide you with a note of that advice. It's under our 13 tab 25. We'll provide you with it now. 14 LORD JUSTICE LEVESON: Tab 25? 15 MR JAY: Sorry, of the extra bundle of attendance notes -- 16 LORD JUSTICE LEVESON: Yes, but I'm not sure that 17 Mr Aldhouse was at that conference. 18 MR JAY: No, but there's something at the bottom of the 19 page I want to refer him to. 20 LORD JUSTICE LEVESON: Right. So be it. 21 MR JAY: Thank you. (Handed) 22 Not a conference you attended, Mr Aldhouse. This is 23 a conference which followed the hearing at Blackfriars 24 Crown Court in April 2005. So that you have your 25 bearings in time, you obviously learnt of that very 47 1 disappointing outcome at the time, didn't you? 2 A. Yes. 3 Q. Is it right to say that there was at the very least 4 a measure of frustration and irritation within your 5 office, probably quite understandably? 6 A. I think that's right. 7 Q. And is that a feeling or sentiment which you shared? 8 A. Yes. 9 Q. Were there discussions about it with Mr Thomas and the 10 way forward? 11 A. Well, there was certainly some discussion, the detail of 12 which frankly I can't recall, but you rightly express 13 the view held in the office, and that would have been 14 the subject of discussion. But as I say, the detail of 15 it I'm afraid I don't recall. 16 Q. At the bottom of page 48808: 17 "JW [who is someone within your office] stated that 18 the view of Richard Thomas and Francis Aldhouse was that 19 if the only problem this case faced was the Blackfriars 20 verdict or other sentence, then the view of the office 21 would be to continue with the prosecution as it still 22 would be within the public interest to proceed as 23 regards the criminality of the remaining defendants." 24 If this note is right, it indicates that you were 25 involved, at least at this stage, in part of the 48 1 strategic thinking regarding the future conduct of the 2 Operation Motorman prosecutions; that's right, isn't it? 3 A. Yes, but I say -- I don't recall the discussions but it 4 might well be that Richard and I had talked about it. 5 There was certainly discussion about the Blackfriars 6 verdict, how disappointing it was, what way should we 7 go, but I'm afraid I can't add to that. 8 LORD JUSTICE LEVESON: Who is Janet Witkowski(?)? 9 A. Oh dear. I'm afraid I cannot recall. 10 LORD JUSTICE LEVESON: Sorry. 11 MR JAY: I think all I'm gently suggesting, Mr Aldhouse, is 12 this -- and it's probably fairly obvious now: we have 13 possibly the most important investigation involving your 14 office, Operation Motorman. It has very serious 15 ramifications. It was clearly being ramped up at this 16 stage. Mr Thomas had it in mind to make a report to 17 Parliament shortly afterwards and he did. Surely you 18 were involved, even in informal discussions with 19 Mr Thomas, as to the direction your office was taking, 20 weren't you? 21 A. Well, I think they would only have been casual ones. 22 Certainly, I have no recollection of -- I have no 23 recollection of, for example, full briefing material on 24 the basis of which one could take decisions. I simply 25 was not involved to that depth. It might well be that 49 1 Richard Thomas would have casually said, "We're thinking 2 of going this way, does it make sense?" But I'm sorry, 3 I was involved to a deeper extent than that. 4 Q. In terms of important strategic decisions -- and there 5 would be quite a few over the course of the working year 6 of an Information Commissioner -- was it Mr Thomas' 7 practice to involve you, at least informally, in such 8 decisions? 9 A. You mean over the whole range of activities of the 10 office? It would depend. Activities were divided. 11 I think I said I spent most of my time by that stage on 12 policy matters, particularly European ones, and I had 13 quite a considerable degree of independence within that 14 area. I think that was probably the way we tended to 15 operate. 16 Q. So you don't think it's right that Mr Thomas discussed 17 with you back in 2003 the right strategic approach to 18 Operation Motorman, in particular whether it was correct 19 or appropriate bring criminal proceedings against the 20 journalists? 21 A. I have no recollection of being asked did I think we 22 should bring proceedings against journalists, and if 23 I had been asked, I suppose I would have taken it in two 24 steps. First of all, I would want to know that we had 25 investigated sufficiently thoroughly to justify that, 50 1 and then -- well, prosecution was normally left to the 2 legal advisers to the Commissioner. I wasn't the 3 Commissioner's legal adviser. I -- but I don't recall 4 any discussion about should we investigate further. 5 I -- no, I think any comment I made after -- would now 6 be coloured by retrospection. 7 Q. We know that the legal team, including counsel, were 8 under the direction of a policy decision -- counsel's 9 advice refers to policy considerations -- which amounted 10 to this: that the journalists would not be prosecuted, 11 indeed the journalists would not be investigated. Are 12 you sure that doesn't chime with your thinking at the 13 time, Mr Aldhouse? 14 A. It certainly wasn't my thinking, and indeed, I would 15 have -- no, if I'd been asked, I would have said we 16 ought to look further. I'm sorry, you will have to ask 17 the Commissioner -- or the former Commissioner for his 18 views. 19 Q. So in terms of Mr Owens' evidence, which we heard on 20 Wednesday, what he attributes to you at the meeting of 21 mid-March 2003, you don't remember saying anything along 22 these lines: "We simply can't take on the journalists, 23 they're too big for us", words to that effect? 24 A. I have -- not only do I have no recollection of saying 25 that; it is simply the sort of thing I would say and, as 51 1 I say, it does not reflect my views of -- or indeed my 2 previous practice of dealing with the media. 3 MR JAY: Okay. Thank you very much, Mr Aldhouse. 4 LORD JUSTICE LEVESON: Could I just ask about that? You've 5 mentioned something in 1996. I don't really know what 6 that's about. I appreciate it's going back in time, but 7 could you just paint it in for me? 8 A. Yes. In -- the framework directive '95/46/EC was 9 adopted in October 1995, and it contains in article 9 10 a provision permitting member states to adopt exemptions 11 necessary to protect journalism and similar freedom of 12 expression. We, the Commissioner and I, set about 13 talking to media representatives to see if we could 14 develop a consensus view about how that might be 15 implemented in what became the Data Protection Act 1998. 16 I spoke to -- oh, I -- no, there was an individual 17 who is well known for representing the public affairs 18 media -- I won't mention her name -- and to a number of 19 the representative bodies, the periodical publishers and 20 the national newspaper press associations and to groups 21 of -- to groups of particularly media lawyers, and as 22 I say, we -- the Commissioner and I were quite roundly 23 attacked, not in the public print but in the UK Press 24 Gazette, and it was very difficult to get the media to 25 engage with the fact that here was a directive which 52 1 said that it was, at least in part, to protect the 2 rights to privacy and there were exemptions and how 3 should though exemptions be -- how should they be 4 deployed, how should they be enacted, and there was -- 5 I recall quite clearly one occasion, a meeting of media 6 lawyers at DJ Freeman when they still had a big media 7 practice. One lawyer stood up -- perhaps I ought not to 8 name the newspaper he represented -- and said that I was 9 simply wasting my time, that it really wouldn't matter, 10 that the newspaper proprietors would ensure that the 11 legislation was enacted to suit them. 12 So I -- yes, those things do stick in my mind. 13 LORD JUSTICE LEVESON: That's rather interesting, isn't it, 14 because they were joining battle with you. 15 A. Yes. 16 LORD JUSTICE LEVESON: The legislation was then passed. 17 A. Yes. 18 LORD JUSTICE LEVESON: And here, within five years, you had 19 on your desk -- perhaps not you personally, but the 20 Commissioner's office had on their desk monumental 21 potential breach. I'm just trying to think how that 22 chimes with your memory. This was precisely what you'd 23 been talking about seven years before, the problems that 24 the European directive would generate. It was being 25 ignored. 53 1 A. Let me see. I -- there are two elements to the 2 legislation. There's the enforcement powers of the 3 Commissioner and they are hedged around with lots of 4 complex procedure to make it very -- well, actually to 5 make it rather difficult for the Commissioner to take 6 enforcement action against the media. But I think yes, 7 you are right that the sort of information that was 8 exposed this morning certainly indicates the -- what 9 should I say? -- conflicts between media practice and 10 classic data protection, yes. 11 LORD JUSTICE LEVESON: Was Mr Thomas the Commissioner at the 12 time? 13 A. Oh yes. Sorry, not in 1996, no. That was Elizabeth 14 France. Elizabeth France retired in 2002. 15 Richard Thomas became the Commissioner in late 2002. 16 LORD JUSTICE LEVESON: But does it not chime some memory 17 with you -- and I appreciate it's a long time ago -- 18 that here was something which had happened which 19 actually you'd gone through the mill with those years 20 before, and here it was coming back to demonstrate the 21 accuracy of the perception that you then had? 22 A. I think that's why I said to Mr Jay that had I been 23 asked at the time, my view would have been we should at 24 least have pursued investigation of journalists. 25 LORD JUSTICE LEVESON: I mean, how big is the office of the 54 1 Information Commissioner? There's the Commissioner, 2 there's you. 3 A. Yes. 4 LORD JUSTICE LEVESON: There's the number two -- 5 A. Well, there are, of course, two deputies. 6 LORD JUSTICE LEVESON: Yes. 7 A. Well, the total staff now, of course, is about 300. 8 LORD JUSTICE LEVESON: But what was the senior staff then? 9 A. Myself and another deputy. One, two, three, can't 10 remember, four assistant commissioners. Several -- then 11 the -- what are we talking about? A management team 12 of -- I'm trying to think. It would have been the -- 13 possibly 10 or a dozen very senior people. 14 LORD JUSTICE LEVESON: Okay. You've now seen this material 15 laid out. 16 A. Yes. 17 LORD JUSTICE LEVESON: You've seen the detail that it 18 contains and the names and all the material that was 19 documented at the time. Are you surprised you weren't 20 asked and there wasn't a management discussion about 21 this? 22 A. Am I surprised? I'm disappointed. Not necessarily 23 surprised. I know that there was, because it's in my 24 diary, a -- what must have been a fairly substantial 25 briefing session in August 2003. 55 1 LORD JUSTICE LEVESON: Yes. 2 A. And I was on leave that week. My diary shows it. I -- 3 well, yes, I'm sure in retrospect it would have been -- 4 one could well say: wasn't this big enough for the whole 5 of the management team to be involved? 6 LORD JUSTICE LEVESON: Not least because you'd gone through 7 the battle those few years before, so you knew the 8 history. 9 A. I certainly had views, anyway, yes. 10 LORD JUSTICE LEVESON: I'm sure, yes. Thank you. 11 MR JAY: May I ask a few more? 12 LORD JUSTICE LEVESON: Yes. That's the process of 13 inquisitorial proceedings, Mr Jay. 14 MR JAY: Paragraphs 9 and 10 of your witness statement. 15 Let's just get a clue what your thinking might have 16 been. We need to throw ourselves back, don't we, to 17 2003 and ignore your thinking today. If you look at 18 paragraph 9, you use the present tense: 19 "My approach to taking formal action against the 20 media is as follows." 21 Can I just clarify your use of the tense. Are you 22 saying that's your approach in November 2011 or was that 23 your approach at all material times when you were the 24 deputy? It's the latter, isn't it? 25 A. I -- so far as I can tell, it is an approach I would 56 1 have taken at the time, it's the approach I've taken for 2 a long time, but memory plays tricks, so you will 3 forgive me if I'm being cautious. But it is 4 certainly -- perhaps because of my dealings with the 5 European institutions, this sort of approach is one 6 which I have held for a long time. 7 Q. You say then in the next sentence: 8 "The Commissioner has strong powers, which should be 9 used in relation to the media with particular 10 discretion." 11 A. Yes. 12 Q. You refer to Article 8, et cetera, et cetera, and at the 13 end of this paragraph you say: 14 "The pursuit of individual journalists could have 15 a chilling effect on those rights." 16 A. Yes. 17 Q. Aren't you telling us there that that would militate in 18 favour of not pursuing journalists, or at least being 19 very careful about doing so? 20 A. Certainly about being very careful. I -- yes, this is 21 a rather short statement and rather compressed. I don't 22 wish -- I don't wish to speak up for or be seen to be 23 speaking up for the practices that have already been 24 exposed to the Inquiry, but I suppose I am concerned 25 that if one talks about the press and journalism 57 1 generally, that you shouldn't catch up the innocent 2 along with the guilty. I have a particular concern 3 because of meetings I've attended and things that have 4 been said to me about consequences for local newspapers. 5 I mean, if I have an anxiety, and the effect -- the 6 problem of a chilling effect, it's for the Gloucester 7 Citizen, the Oxford Mail, the Farnham Herald and the 8 Nutsford Guardian, not the Sun and the Daily Mail. 9 LORD JUSTICE LEVESON: But that wouldn't be to permit them 10 to breach Section 55, would it? 11 A. Um ... 12 LORD JUSTICE LEVESON: What you're concerned about is the 13 viability of local newspapers providing a local service 14 for the local communities, I assume? 15 A. Yes. But local newspapers have been concerned about the 16 way that, for example, defamation has been used to put 17 them in some financial difficulty, and I wouldn't 18 want -- I wouldn't want a data protection legislation to 19 simply be another rod to beat their backs with. 20 LORD JUSTICE LEVESON: I'm sorry, Mr Jay. Has any local 21 newspaper ever suggested to you that they were concerned 22 that Section 55 of the Data Protection Act was going to 23 cause them difficulty? 24 A. Not in so -- no, because the time -- my discussions 25 predate that. I'm thinking back to my discussions in 58 1 1996 on how one might implement article 9 of the 2 directive, and certainly concerns were expressed to me 3 then about -- I have a particular meeting in mind and 4 certainly concerns were expressed about the fragility of 5 local newspapers and the legal threats they felt they 6 were under. 7 MR JAY: Operation Motorman wasn't involved or concerned 8 with local newspapers, was it? 9 A. No, absolutely not. 10 Q. Can I look at the practical issues you raise in 11 paragraph 10, please. You set out what the section 12 provides. In the second sentence: 13 "There are practical challenges in the investigation 14 of the involvement of individual journalists in such 15 cases in demonstrating ..." 16 Then you make three points: 17 "... first the degree of knowledge on the part of 18 the individual journalist ..." 19 That you can find out just by interviewing them, 20 can't you? 21 A. I think that takes me to the third point. 22 Q. Which is what? 23 A. Which is: why should a journalist respond to our request 24 for interview? The Commissioner has no power of arrest, 25 has no power to compel people to speak to him. These -- 59 1 we would be seeking to interview journalists presumably 2 as prospective defendants to a criminal action. They 3 would have to be cautioned. A well-advised journalist 4 would simply say nothing. 5 Q. Let's explore that, Mr Aldhouse. Just cherry-pick, as 6 a starting point, the very best cases: the CRO cases, of 7 which there aren't very many, but you could take 8 a sample, and the family and friends cases. The 9 Information Commissioner's office would then make 10 a request to interview the individual journalists and 11 possibly the individual editors, having pointed out, as 12 must be obvious, that there's a strong prima facie case 13 which needs to be rebutted. Are you saying that 14 practical obstacles would have been put in your way 15 which were so great that your investigations might have 16 been thwarted? 17 A. Well, the investigations might have been thwarted but 18 I think the tenor of your questions is: shouldn't you at 19 least try? I think I agree with that. 20 LORD JUSTICE LEVESON: But actually, they wouldn't 21 necessarily be thwarted because if you have a paper 22 trail that takes you from the journalist on the one hand 23 to Mr Whittamore on the other and all the material, as 24 you've now seen, which you've explained you hadn't seen 25 before, if he says nothing, then the prima facie case 60 1 there stands unrebutted. 2 A. Um ... I wonder whether -- well, let me accept that the 3 paper trail is sufficient and complete. In that case, 4 you would be right, and then it's a question of: is 5 there a public interest defence? 6 Now, I think I heard some remarks from you, sir, 7 earlier that -- how could this possibly be a public 8 interest defence in these cases? I think it's worth 9 bearing in mind that we're talking about 2003, and 10 I certainly remember discussions between senior staff 11 and the lawyers in 2002 saying -- how can I choose my 12 words correctly? The remarks of the Lord Chief Justice 13 in A v B, the Garry Flitcroft case, were not helpful 14 in -- now, admittedly we're talking about a case that 15 could be distinguished. It was a civil case, it was 16 interim relief, but remarks which suggested that there 17 was a public interest -- there was -- there was a public 18 interest in having economically viable newspapers, and 19 for that they had to sell -- they had to print things 20 that the public were interested in, even if it was 21 tittle-tattle. 22 Now, I know that in the Court of Appeal six months 23 later, a different Court of Appeal slightly modified 24 those used, but nonetheless it did rather discourage 25 people like ourselves, senior staff in the 61 1 Commissioner's office, from thinking there's a good -- 2 you know, there's a possibility of prosecutions in this 3 sort of case because we thought: well, the journalists 4 have got a fairly easy route to establishing a public 5 interest defence. 6 The world has moved on, of course, and maybe the 7 courts won't see it that way. 8 MR JAY: But all this is demonstrating is that there may 9 well have been a policy decision not to pursue the 10 journalists because you're expressing views which are 11 entirely consistent with the existence of such a policy 12 decision. Isn't that right? 13 A. There might well have been, but I didn't take it. I'm 14 sorry, you will have to ask the former Commissioner, 15 Richard Thomas. 16 MR JAY: Well, I will. 17 LORD JUSTICE LEVESON: Yes. I don't know whether, when you 18 were looking at the screen, you could see some of the 19 entries of persons, because if you'd seen the names of 20 the people who were the subject of these enquiries -- 21 friends and families, for example -- if you were going 22 to say there's a public interest in looking at those, 23 you might as well then say that data protection doesn't 24 run to journalists. 25 A. First of all, I don't say that there's a public interest 62 1 defence. I'm merely trying to put myself back in how we 2 reacted to certain legal decisions in 2002, 2003. And, 3 well, there are those who think that the legislation was 4 constructed to achieve just what you are saying. 5 LORD JUSTICE LEVESON: Well, maybe I'll have to re-look at 6 A v B. All right. 7 MR JAY: I think that's as far as we can take it, isn't it, 8 Mr Aldhouse? Thank you very much. 9 LORD JUSTICE LEVESON: Thank you very much for coming. 10 A. Thank you. 11 LORD JUSTICE LEVESON: We'll have a few minutes' break. 12 (11.58 am) 13 (A short break) 14 (12.O2 pm) 15 MR JAY: The witness who was lined up for today is now going 16 to be called tomorrow, so there is a small gap. 17 Mr Burden will take a bit of time, but he's not 18 available at the moment. There's one redaction, in any 19 event, to his statement, which will be required, which 20 we will organise over the next few minutes or so, but 21 may we hear his evidence at 2 o'clock? 22 LORD JUSTICE LEVESON: I think that's probably sensible. 23 Representations have been made to me that it is in 24 the public interest that statements be published before 25 the witnesses come to the Inquiry, and that therefore 63 1 I should discharge the order that I made last Monday, 2 which imposed a restriction on the publication of those 3 statements. 4 I will, of course, consider those submissions 5 carefully and provide a reasoned response to them, but 6 my immediate reaction is that if statements are released 7 in advance, then the debate about that statement will 8 start then, and far from having the effect of 9 encouraging an appropriate and orderly pursuit of the 10 Inquiry, it will mean that the debate will move through 11 various stages before the witness ever gets anywhere 12 near the Inquiry. 13 MR JAY: Yes. 14 LORD JUSTICE LEVESON: That's my immediate reaction, and 15 indeed I was persuaded of that view by Mr Caplan. My 16 immediate reaction when we'd learned that Mr Campbell's 17 statement had been put into the public domain, was to 18 say: right, let it go, and he made submissions to like 19 effect to that which I've just summarised. 20 I'm keen to know -- I appreciate nobody's had notice 21 of this -- if anybody has any particular views on this 22 topic or whether they want to speak up for removing the 23 restriction or for supporting it? Mr Garnham. 24 MR GARNHAM: Sir, we would certainly support your 25 provisional stance. 64 1 LORD JUSTICE LEVESON: It's certainly my present stance, 2 because it's the order from last Monday. 3 MR GARNHAM: Yes. We would encourage you, sir, to remain of 4 that view. The orderly management of this Inquiry is 5 something that affects the core participants as well as 6 your team. It's inevitable that some statements come 7 out quite late because the process is a rapidly moving 8 one, and if we are to give any consideration to the 9 potential effect of that so that we can make a decision 10 as to whether representations need to be made, we need 11 at least the time between the publication of the 12 statement to core participants and the calling of the 13 witness. If it's going to be released publicly earlier 14 than that, that makes that task impossibly difficult. 15 I would add, sir, that you are entirely right, if 16 I may say so respectfully, that if you allow the 17 publication of statements before the witness gets to 18 that witness table, the matter will be debated in the 19 press long before the evidence is tested here, and that 20 ought not to be so. 21 LORD JUSTICE LEVESON: Thank you. Does anybody have any 22 other view? 23 MR DAVIES: It's not another view, but I was hoping to echo 24 what Mr Garnham says about timing. I could see an 25 argument for another view, but it would require that the 65 1 core participants had plenty of time to see the 2 statement before it was made public, which would then be 3 before the witness gave evidence, and the speed at which 4 things are going at the moment simply doesn't allow that 5 much time. 6 LORD JUSTICE LEVESON: I understand that. 7 MR SHERBORNE: Sir, I was simply going to endorse the 8 approach that you're taking currently. As you know, in 9 the past we've wanted all the statements to be ready as 10 soon as witnesses were giving evidence. I know 11 logistical difficulties have made that not necessarily 12 possible in every case, but -- 13 LORD JUSTICE LEVESON: I hope it's got better, Mr Sherborne. 14 MR SHERBORNE: It's got better. Unfortunately, it's 15 slightly too late for my witnesses, but I'm not going to 16 carp. In terms of the approach from now on, we 17 certainly would endorse the principle, sir, that you've 18 adopted. 19 LORD JUSTICE LEVESON: Right, thank you. Mr Caplan, this 20 was your submission last Monday, so I suppose you will 21 maintain it? 22 MR CAPLAN: Yes, please. 23 LORD JUSTICE LEVESON: Thank you very much. Anybody else 24 want to say anything on the topic? 25 Well, I shall consider the submissions carefully and 66 1 I shall respond appropriately. Thank you all very much 2 for your assistance. Let's wait until 2 o'clock. Thank 3 you. 4 (12.08 pm) 5 (The short adjournment) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 67 http://www.levesoninquiry.org.uk/evidence/?day=2011-12-05
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-5-December-2011.txt 1 2 (2.00 pm) 3 LORD JUSTICE LEVESON: Yes, Mr Jay. 4 MR JAY: The next witness is Mr Peter Burden, please. 5 MR PETER HENRY BURDEN (sworn) 6 Questions from MR JAY 7 MR JAY: Mr Burden, please sit down and make yourself 8 comfortable. 9 A. Thank you. 10 Q. Your full name, please? 11 A. Peter Henry Burden. 12 Q. Mr Burden, you've provided a witness statement to the 13 Inquiry dated 13 October 2011. It runs to four pages. 14 The version I have isn't signed, but is this your formal 15 evidence to the Inquiry with one redaction I think we've 16 made? 17 A. Yes. 18 Q. You tell us a little bit about yourself. You say that 19 since 1987 you've been a freelance author. You've also 20 produced several non-fiction titles, two of which are 21 books: Fake Sheiks & Royal Trappings, and there's 22 another book you've written more recently, How I Changed 23 Fleet Street; is that correct? 24 A. No, that isn't correct. That is another Peter Burden. 25 He used to be the chief crime reporter on the Daily Mail 1 1 and he retired quite a long time ago. 2 Q. I was struggling a little bit with the photograph. It 3 didn't bear much resemblance. 4 A. That isn't my book. 5 Q. My sincere apologies for that. I'll say nothing more 6 about it. Can I ask you please about Fake Sheiks & 7 Royal Trappings, which we've read and I referred to when 8 opening this case. To be clear, in relation to the 9 phone hacking issue, if I can describe it in those 10 terms, can we be precise as to the direct contacts, if 11 any, you've had with people. Have you spoken to any 12 News of the World or other journalists about phone 13 hacking, first of all? 14 A. I've tried to, but without any direct result. I've 15 spoken to quite a lot of News of the World journalists 16 off the record, and some on the record, but none of them 17 that I spoke to was prepared to make any firm statement 18 one way or the other. 19 Q. Right. 20 A. And one or two denied it flatly. 21 Q. Right. You also make it clear in your statement -- and 22 I'm going to ask you to be careful of the answer you 23 give. You've had limited contact with 24 Mr Glenn Mulcaire; is that correct? 25 A. That's correct, yes. 2 1 Q. I'm not going to ask you specifically about what he told 2 you, although it's clear from the third page of your 3 statement the limit of your contact with him. Can I ask 4 you then about your direct knowledge of other matters? 5 First of all, in your book you refer to the Bob and Sue 6 Firth story. Have you spoken to anyone directly about 7 that? 8 A. Yes, I did go down and see Mr and Mrs Firth in early 9 2009, and discussed the whole case with them because I'd 10 only touched on it lightly in the first edition, and 11 indeed I had unfortunately placed them in Essex whereas 12 in fact they were in Dorset. So I had to put this right 13 and I went to see them and they told me in considerable 14 detail the background to the events which subsequently 15 came out where they were exposed, as it were, in the 16 News of the World for running a bed and breakfast 17 establishment that was of a naturist nature. A strange 18 place to do it, in the middle of Dorset, but that's 19 where they were doing it, and the News of the World had 20 gathered that there were additional facilities or 21 services, I should say, on offer there, and they sent 22 down their reporter, Mr Neville Thurlbeck, to see what 23 was going on. 24 Q. May I ask you this question: have you spoken to 25 Mr Thurlbeck to obtain his account of events? 3 1 A. No, he was disinclined to talk to me when I asked him. 2 Q. Are you aware of a Channel 4 programme which deals with 3 these matters or not? 4 A. As a matter of fact, I'm not, no. I don't know what it 5 covered and it was never drawn to my attention, so I'm 6 afraid I don't know what conclusions it came to. When 7 was that put out? 8 Q. We're investigating when, Mr Burden. I just wanted to 9 ascertain the sources of your information. You've 10 kindly told us that you spoke to the Firths but you 11 didn't speak to Mr Thurlbeck, although I think the sense 12 of your evidence is that you tried to; is that right? 13 A. Yes, I tried to talk to all these people, but none of 14 them would return my calls, or simply put the phone 15 down. 16 Q. In relation to what you say about Mr Mazher Mahmood -- 17 and I think there are two chapters of your book which 18 deal with him -- aside from reading all the publicly 19 available material, did you speak to anyone about those 20 issues? 21 A. Well, I spoke extensively to his brother, Waseem 22 Mahmood, who is a broadcaster -- a well-respected 23 broadcaster -- who set up radio stations and television 24 stations overseas in Afghanistan and places, and he is 25 not on good terms with his brother and was able to give 4 1 me quite a lot of background to Mazher Mahmood's early 2 background and his early life. 3 Q. Okay. May I ask you -- and this is on the third page of 4 your witness statement. You say at the bottom of the 5 page that while preparing a second edition of your book, 6 you were approached by two former News of the World 7 photographers, Mr Steve Grayson and Mr Ian Cutler, who 8 provided graphic examples of stunting, which is faking 9 photographs, and, in Mr Cutler's case, of simply 10 inventing and casting stories for the paper in 11 conjunction with journalists. Is that information they 12 freely gave to you? 13 A. Yes, yes, and indeed Steve Grayson has outlined some of 14 this in a book of his own, which is listed at the back 15 of my book, which you can find, which he had published 16 a couple of years ago, and it's called -- Don't Ask, 17 Don't Get, it's called, by Steve Grayson. He has 18 outlined a lot of that, but I also had several meetings 19 with him in which he gave me further detail. 20 Q. Can we have a sense of the dates we're talking about 21 here when Mr Grayson and Mr Cutler were operating, as it 22 were? We're talking about some time ago, are we not? 23 A. Yes, we are. Ian Cutler was operating in the 1970s and 24 1980s with a well-known journalist at the time called 25 Trevor Canson(?), and they certainly, according to him, 5 1 would go out and find circumstances that they thought 2 might make a good headline, like dole cheats or rent 3 boys at the YMCA and so on, and they'd just get a chum 4 and photograph him outside the YMCA and make the story 5 up, and as long as, you know, it was sufficiently 6 interesting and titillating to the readers -- or they 7 thought it was -- it went in, according to Ian Cutler, 8 who's also written a book, if you could call it that, 9 which is called The Camera Assassin, in which he 10 recounts many of these events. How truthful all the 11 accounts are I wouldn't like to say, but I'm sure some 12 of them are. 13 Q. And Mr Grayson? What period of time are we -- 14 A. He was operating in 1990s, I think up until about the 15 end of 1999, I think, that he eventually was dismissed 16 and he did go to a tribunal and lost, actually. He was 17 dismissed, he claims, for, he felt, obeying orders, 18 producing a picture of the Beast of Bodmin when there 19 wasn't a beast and he simply took a picture of a puma in 20 Ilfracombe zoo and took the bars out of the shot and 21 submitted it, and the News of the World, then edited by 22 Rebekah Wade, I think -- or she might have been deputy 23 at the time; she was deputy at the time, but on her 24 own -- was very keen to have it, and then of course he 25 had to own up. He had to say, "Look, of course it's not 6 1 a genuine shot", and as a result of that, they took 2 proceedings against him, all of which are detailed in 3 his own book and a matter of public record. 4 Q. Yes, and referred to in your book. 5 A. Yes. 6 Q. It might be said that this is all of somewhat historical 7 interest. If the last date is 1999 -- 8 A. Mm. 9 Q. -- what bearing does that have on the culture, practices 10 and ethics of the press now? What do you say about 11 that? 12 A. The reason I included it was simply because I think it 13 showed the development of that culture -- and first of 14 all the culture of not having outstanding regarding for 15 the truth -- as being something that was fairly long 16 term within that particular newspaper and the idea of 17 simply getting the story by any means, whether it was by 18 stunting photos or entrapping people, was embedded in 19 the culture, the ethos of the newspaper by then, which 20 would seem to set the right sort of background for 21 people to be prepared to take subsequent risks on things 22 like phone hacking, which is what my book was -- what 23 originally sparked my book, was the jailing of the two 24 phone hackers. 25 Q. Thank you. May I ask you some specific matters arising 7 1 out of your book, if you don't mind? We have copied 2 parts of it, but you and I are going to work from the 3 second edition, which I think was published in 2008 or 4 2009? 5 A. 2009. 2009, yes. May 2009. 6 Q. First of all, the quote at the front you haven't 7 attributed. It's not necessary to do so now, but you 8 name the former news editor in the book somewhere, don't 9 you? 10 A. Yes. 11 Q. Can I ask you first of all, please, about page 82. You 12 say, four lines down: 13 "To the News of the World, anyone is fair game, 14 irrespective of the hugely disproportionate damage its 15 victim might suffer when set against what is often an 16 entirely legal and completely private act where no one 17 else is being harmed." 18 Are you looking there at a particular point in time 19 or are you looking more generally? 20 A. I'm looking for -- no, I'm looking at it generally, that 21 the notion that running a story that was going to do 22 considerable harm to somebody, even though no illegality 23 had been involved, was irrelevant to them. They didn't 24 care how much harm they did. In fact, in many respects, 25 the more harm they did, the better because that made the 8 1 story bigger. I think that's the point I was trying to 2 make there. 3 Q. Then you give some specific examples. There's the 4 Arnold Lewis story, which ended in tragedy. That was in 5 1978? 6 A. Yes. 7 Q. Then there's as Mazher Mahmood early sting, which you 8 deal with at pages 83 and following. This is a little 9 guest house in The Paddock LA(?), I think. 10 A. Yes. 11 Q. It's probably not necessary to go into the detail of 12 that. 13 Mr Cutler and his photographs, that starts at 14 page 92. You've told us something about the faking of 15 photographs. Much of it is in the public domain. At 16 the bottom of page 103, you rightly draw attention to 17 the fact, as you've already told us, that the unfair 18 dismissal claim was rejected in the employment 19 tribunal -- 20 A. Yes. 21 Q. -- in East London. Bob and Sue Firth is page 105. 22 Based in part on obviously the articles themselves and 23 in discussions you've had with them. Missing out the 24 sort of reverse sting at the end on Mr Thurlbeck, which 25 the Inquiry isn't so much interested in, what in 9 1 a nutshell was that story about? 2 A. That was simply a case of people at the paper, probably 3 Thurlbeck himself mostly, identifying that here was 4 a possibility to go down and write a piece about unusual 5 activities or comparatively unusual activities down in 6 the Dorset countryside, and presumably -- he didn't have 7 photographs -- he didn't have a photographer with him, 8 so presumably he was just going to come back and write 9 the story up and did come back and write the story up 10 with photographs of the house and explain what he'd been 11 offered when he got there and what he'd done, although 12 subsequently he didn't in fact tell the whole story, as 13 subsequent events showed. 14 But it was a very run-of-the-mill smut story, as far 15 as they were concerned. It was something that would 16 probably end up on page 20 or 30, not a big story, but 17 another story of sexual misbehaviour in a slightly 18 unlikely spot, which is the kind of story they like very 19 much. They're very keen on sort of rural smut, for some 20 reason. 21 Q. You point out at page 113 that there were various 22 inaccuracies in the story on top of that? 23 A. Yes, there were, because -- yes. 24 Q. And some of the detail we don't really need to know, but 25 I think -- 10 1 A. Quite. I think basically it was just embellished and 2 added to in a way to make the story a bit stronger than 3 it already was, which again has turned out to be, as 4 I've found, fairly standard practice. You put in 5 anything extra that you think is going to make the thing 6 look ripe that you don't think is going to get you into 7 trouble. 8 Certainly, there's -- one statement which said "Bob 9 hid in a cupboard while Sue romped with guests" was 10 complete nonsense. He didn't hide in a cupboard at all. 11 They told me it was a complete fiction by Thurlbeck and 12 most of what he said -- most of what he listed weren't 13 things that were going on at all. And, of course, at 14 the end he said that he declined the offer of any 15 further services, which turned out not, in fact, to be 16 the case. 17 So according to the Firths -- and my inclination was 18 to believe them because my reading of them was that they 19 were quite happy to say that they were running a nudist 20 B&B and that people would wander around in the nude, and 21 if they wanted to engage in sexual shenanigans with one 22 another, that was fun, but the idea that there were sort 23 of organised services being offered was Thurlbeck's 24 fabrication. 25 Q. Okay. 11 1 May I deal with another matter, which is fully in 2 the public domain, page 122. This is the Rebecca Loos 3 story, which we all know about. Just two points on it, 4 though, Mr Burden. You say halfway down page 122: 5 "In 2005, the News of the World was given an award 6 for scoop of the year." 7 And Mr Thurlbeck was, as it were, the recipient on 8 behalf of the newspaper, is that right, and it related 9 to this story? 10 A. Yes, it was his story, yes. 11 Q. Do we know what the sum was that Rebecca Loos was paid 12 by the News of the World? 13 A. We don't precisely, no. Several sums have been bandied 14 around, but I've heard -- I'd heard 300,000 and I'd 15 heard 800,000, so I imagine it was somewhere in between, 16 but as is often the case with this sort of payments, 17 they tend to get blown up as the story progresses, 18 but -- certainly Max Clifford told me she got 19 a substantial sum for it but he didn't say what that sum 20 was. 21 Q. You had conversations with Mr Clifford about this but he 22 was, as it were, loyal to the confidentiality of his 23 client -- 24 A. Yes, I interviewed Mr Clifford very early on in my 25 researches for this book. 12 1 Q. Might it be said that there was a interest in this 2 story? 3 A. I think there is a public interest in the way David 4 Beckham plays football and performs as a captain of the 5 team when he was. I don't think there's any public 6 interest whatsoever in what he does in bed with anybody. 7 I think that that's not what he's employed for, it's not 8 what he's famous for, and I don't think it's anybody 9 else's business. Unfortunately, the woman who he 10 dallied with saw it, I guess, as an opportunity to make 11 some money. 12 Q. I'll come back to that issue, if I may. 13 May I ask you about the chapters in your book which 14 address Mr Mazher Mahmood, who we're hearing from next 15 week. Your view, I think, is that virtually all of his 16 stories are unethical. Have I correctly understood it? 17 A. I'm not saying that all of them are, no. I think 18 especially in the early days he was a fairly genuine 19 reporter, but as times went on, it seems to me, having 20 looked at a lot of his stories over a long period of 21 time, that it slowly became easier for him to take the 22 bare bones of a story, or the mere scintilla of a story, 23 and find circumstances in which he could turn it into 24 a much bigger story. The most obvious case was -- there 25 were two obvious cases, specifically the Beckhams again. 13 1 He claimed that they had foiled an attempt to kidnap 2 Victoria Beckham. When it came to court, which it 3 eventually did -- and I might say that quite a lot of 4 people were in jail for quite a long time awaiting 5 trial -- it turned out that there were no such case at 6 all. These were a group of people who had discussed it 7 and they had recorded -- Mazher Mahmood's agent 8 provocateur, who was a chap called Florim Gashi, an 9 Albanian who used to bring stories to him, to whom he 10 gave 10,000 quid for this particular one, recorded them 11 in a club where they used to go and play snooker, 12 saying, "Oh yes, I know what we could do for a bit of 13 money, we could kidnap the Beckhams", in the same way 14 that you might say you might win the lottery. I mean, 15 there was no serious intent there at all. It was on the 16 basis of that recording alone, which was entirely 17 speculative and not at all serious and actually had 18 absolutely no basis in anybody's real plans whatsoever, 19 that the arrests were made and the case was brought. 20 I mean, there was ultimately no evidence whatsoever of 21 any kind of conspiracy to kidnap these people, which 22 must have been frightening for the Beckhams themselves, 23 because I think their children were involved, and 24 frightening for other people, thinking -- every time 25 there's a story like this comes out, they think, "Oh, 14 1 this could happen to me", but it was based on nothing at 2 all other than Mazher Mahmood's inventiveness. 3 Q. You were going to mention one other story. That was the 4 first of the two. 5 A. There was another story about a material called red 6 mercury, which nobody seems to know what it is, that was 7 allegedly being imported by a wheeler dealer in London 8 and was going to be used for bomb-making purposes. 9 Well, the stuff was never found. There was no end-user. 10 The Mr Big that Mr Mahmood was constantly writing -- all 11 his stories seemed to feature a man called Mr Big, in 12 this case a man from Saudi Arabia, which he quoted as 13 being "a hotbed of Al-Qaeda", in order, you know, to 14 suggest that it was a terrorist thing, and he explains 15 that Mr Big from Saudi Arabia was also sympathetic to 16 Muslim causes. Well, presumably, Mr Big, if he came 17 from Saudi Arabia -- it is a Muslim area, so it's not 18 unreasonable. But it's all these little weasel words 19 that get inserted into the stories to give a suggestion 20 of fear and possible danger, based in this case on 21 absolutely nothing at all, and once again people were 22 locked up, awaiting trial, on remand and the cases 23 collapsed almost instantly. And yet no redress was put 24 on the paper or Mazher Mahmood himself for this 25 tremendous waste of public time and money. 15 1 And what is more, if I may add, at the same time, 2 talking of that kind of thing, on many instances he's 3 used people buying cocaine or being prepared to procure 4 cocaine for him and he has produced funds, presumably 5 from petty cash -- he's been asked about this in 6 court -- to buy cocaine in order to propagate a sting so 7 that he can then go back and write a stories about how 8 Johnny Walker, for instance, or the Earl of Hardwicke, 9 or several other individuals were prepared to buy him 10 cocaine, usually under quite a lot of duress from the 11 fake character that he was playing at the time. And 12 curiously, he's never been charged with the illegal 13 purchase of cocaine, although there are no legal grounds 14 on which he can do this to perpetrate a sting. 15 LORD JUSTICE LEVESON: What's the most recent of these 16 stories, Mr Burden? 17 A. Jodie Kidd, I think probably about three or four years 18 ago, he persuaded to go and buy cocaine for him and that 19 was put up as a video online. I think it might have 20 happened since this book was last published. But you 21 will find that there is a case where Jodie Kidd was set 22 up to go and provide him with some cocaine. 23 MR JAY: It's page 210 of your book. 24 A. Oh, it is there? It must have happened just before 25 I published this edition then. I apologise. So that 16 1 was in 2009, I think. I can't recall if there have been 2 more since then. 3 Q. I think it's right to say, Mr Burden, that you remain 4 sceptical about the Pakistani cricketers issue, which of 5 course led to a conviction recently? 6 A. Yes, it did. I'm puzzled by that. I took the view 7 almost the minute I saw that video on their website that 8 there was something odd about it, because I knew that 9 the John Higgins story, the story of the snooker player 10 apparently taking a bribe, had fallen down because the 11 video evidence had been changed by Mazher Mahmood and 12 his operatives, and that was acknowledged. 13 What was odd about the video that was put up on the 14 News of the World website was there were instances where 15 you simply couldn't see the mouth of the man who was 16 supposed to be doing the speaking. It was a fellow 17 called Mazher Majeed, who was the agent between 18 Mazher Mahmood and the cricketers, allegedly, and 19 I opined that this video could easily have been made 20 retroactively, and that's what it seemed to me. 21 Having said that, Mohammad Amir, the youngest of the 22 bowlers, has -- did plead guilty and I find that 23 puzzling, but I dare say there's reasons for that. 24 Nevertheless, the point is there was no actual crime 25 there. There was nobody going to go and have a bet on 17 1 those no-balls. There was nobody going to benefit from 2 it. It was simply Mazher Mahmood setting these people 3 up, putting pressure on them, through Mazher Majeed, to 4 do these no-balls, if they did indeed do them -- 5 I suppose I must accept that they've been found guilty 6 and perhaps they did, but there was nevertheless no 7 clear evidence that anybody was going to benefit from 8 that particular activity, from that particular crime, so 9 it was, in a sense, a non-crime. It was a non-story. 10 The whole event was set up by Mazher Mahmood to get 11 these people, or to show that these people were prepared 12 to bowl a no ball when asked and they seem to have 13 satisfied the jury that that was the case. I have to 14 say that that didn't satisfy me. 15 LORD JUSTICE LEVESON: Do you have any expertise in the area 16 beyond having looked at the material? 17 A. I wasn't able to look at the raw material because 18 obviously they weren't going to let me have it and 19 indeed I did put up this opinion online and was asked by 20 Messrs Farrer to take it down, which I did, because 21 I couldn't get my hands on the original material. 22 But I would say that after the first time I made 23 reference to it, some of the material did come down, the 24 more doubtful-looking material. Whether that was 25 a coincidence or not, I can't say. 18 1 MR JAY: You weren't approached by the defence to assist 2 them in that case, were you, Mr Burden? 3 A. Sorry? 4 Q. You weren't approached by the defence to assist them in 5 that case, were you, for obvious reasons? 6 A. No. No, I wasn't. I did speak to one of the defence 7 lawyers and I did speak -- take opinion elsewhere and 8 there was a feeling that possibly I could have a case, 9 but without being able to get hold of the material, it 10 was impossible to push it any further. 11 LORD JUSTICE LEVESON: The problem might be that you're 12 obviously entitled to your opinion about any of these 13 matters, but your opinion would not be evidence in 14 court. 15 A. I understand. 16 LORD JUSTICE LEVESON: Unless you're deriving it from some 17 expertise, for example, in the examination of video 18 film, which you're not suggesting you have -- I'm merely 19 explaining it -- 20 A. I accept that entirely and I did have two experts lined 21 up to look at the material if I had been able to get 22 hold of it, but I wasn't able to, not surprisingly. 23 MR JAY: I've been asked to put to you this proposition, 24 that the evidence you've just given might betray 25 a certain lack of objectivity on your part because here 19 1 you're adhering to a thesis -- no one's saying that 2 you're not entitled to adhere to it but you are -- in 3 the face of convictions reached after a fair trial by 4 a judge and jury, and you're still not changing your 5 mind, which might show that you're betraying a hostile 6 animus towards the News of the World and certainly 7 Mr Mazher Mahmood. 8 A. Well, I wouldn't say that was entirely the case. I did 9 say I accept that since they pleaded guilty, then 10 perhaps that was the case. I am saying that from past 11 experience of the way that particular reporter operates, 12 it would have come as no surprise to me if it had been 13 manufactured, but of course I have no evidence that it 14 was. I'm, as it were, extrapolating from past 15 experience and past knowledge of stories that he has 16 produced, and indeed an instance where he quite 17 specifically did alter some video evidence that went up 18 online, which is clearly documented. So it was not an 19 unreasonable supposition, but I completely accept that 20 it is a supposition. 21 Q. Thank you. Can I ask you, please, about some of your 22 conclusions at page 282 and following. Chapter 9. 23 A. Mm-hm. 24 Q. Four lines into this chapter you say: 25 "There's a growing sense in Britain that newspapers 20 1 like the News of the World -- by no means the only 2 culprit -- are out of control and unaccountable because 3 various bodies and laws in place which define the public 4 interest and protect the privacy of both public and 5 private individuals are manifestly too weak." 6 So here is you writing about two or three years ago, 7 and presumably your opinion hasn't changed much since, 8 has it, Mr Burden? 9 A. No, but I do detect that the general impetus is towards 10 redressing this now, and presumably this is what this 11 Inquiry is very much about and I have to say I'm very 12 glad that that's the case, but certainly at the time, 13 there were very fee people who wanted to see the PCC go 14 then. A lot of people said, "Oh, we must keep the PCC, 15 and we don't want a privacy law and we don't want 16 statutory law." I sense that that has changed 17 considerably in the last three years. 18 Q. Can I ask you then about your ideas for the future? 19 First of all, in relation to a privacy law, would you 20 propose one? 21 A. I think what it requires, if not a law about 22 (inaudible), a definition of what -- first of all we 23 start with the definition of what privacy is, which they 24 have in France, and it's quite clear that it affects 25 those aspects of a person's life which don't have 21 1 anything to do with their public persona, and that seems 2 to be perfectly reasonable and perfectly sensible. If 3 that -- insofar as the Human Rights Act gives an 4 individual a right to privacy under section 8, it seems 5 very clear to me that we must understand quite what 6 privacy is, which we don't here, we don't have 7 a statutory definition of it, and it could be that that 8 could be encapsulated in a statutory act that did 9 protect people's privacy in the same way that other 10 jurisdictions have. 11 Q. Have you researched the French Civil Code? This is 12 page 300 of your book. It looks to the uninitiated as 13 that the French Civil Code merely reiterates what's in 14 Article 8 of the Convention. 15 A. They do go on to have a clear definition. I say the 16 notion of private life has been developed through 17 caselaw by the French courts which have held that: 18 "A person's private life includes his or her love 19 life, friendships, family circumstances, leisure 20 activities, political opinions, trade union or religious 21 affiliation and state of health." 22 So in other words, they have developed a fairly 23 clear understanding of what privacy is through caselaw, 24 which we don't appear to have done in this legislature. 25 Q. Do you happen to know whether the Civil Code has 22 1 a public interest exception? 2 A. Frankly, I don't, but I would hope that it retains here 3 in the UK -- I'm a full believer of the right of 4 investigative journalists to investigate criminality and 5 corruption, and if that means that they must sometimes 6 break these laws in order to achieve that result, 7 I accept that that must be a defence for that kind of 8 genuine investigative journalism in the case of, say, 9 the Guardian and Jonathan Aitken, where they did break 10 the law in order to get that evidence out, and papers 11 like the Guardian do run serious investigations but they 12 don't fall foul of these kind of libel and privacy 13 actions that the News of the World and the similar 14 newspapers do now. 15 Q. In terms of the PCC, what are your proposals in relation 16 to that? 17 A. In relation to which? 18 Q. The PCC. 19 A. Oh, the PCC? I think that what the Colcutt committee 20 concluded back in 1991 or 1992 that there should be -- 21 a statutory body should be put in place. I think the 22 politicians who were responsible for not accepting 23 Colcutt's representation recommendations were 24 politicians who were, frankly, frightened of the press. 25 I think what's happened in recent months has shown that 23 1 politicians need not be frightened of the press, and the 2 fact that Parliament has been able to pull in the 3 Murdochs and question them shows that these people are 4 not invincible, and therefore I think there's a much 5 stronger appetite for putting some kind of statutory 6 body in control of the press, but at the time, of 7 course, the press were all throwing their hands up 8 saying, "You cannot possibly gag us", but at the same 9 time nobody was suggesting that the defence of public 10 interest should be removed, and as long as that defence 11 is there, I don't see that there's any problem in saying 12 to the press, "You cannot transgress this far into 13 a person's private life unless you are uncovering 14 a crime or deep corruption", and I think that's 15 a perfectly sensible position to take, and -- but the 16 press always complain very, very strongly at anything 17 that suggests that they might be in any way hampered in 18 doing what they consider their job, or in the case of 19 the tabloid press, putting out stories that are of no 20 public interest whatsoever but do regrettably sell 21 newspapers. 22 LORD JUSTICE LEVESON: It may be that although the public 23 interest isn't necessarily defined by what the public 24 are interested in, what the public are interested in is 25 relevant to decisions being made by the press as to what 24 1 they should or shouldn't publish. 2 A. If you completely disregard any individual's right to 3 any kind of privacy, yes. 4 LORD JUSTICE LEVESON: I'm not suggesting you disregard it 5 at all, but it's part of the equation, isn't it? 6 A. I accept that, but all I'm saying is that this kind of 7 privacy should only be breached where there's a very 8 good reason for doing it. 9 LORD JUSTICE LEVESON: And do you consider that the 10 suggestions you've been putting forward, and indeed you 11 identified in your evidence, I think, to Parliament, 12 would itself have a chilling effect upon the press and 13 would limit what they need to be able to do that is in 14 fact in the public interest? Or not? 15 A. I don't see why it should, because if they're pursuing 16 a story which is clearly in the public interest, and any 17 serious grown-up journalist knows what is or isn't in 18 the public interest, they can take that risk on the 19 basis that they will have that defence. So I don't see 20 why it should be a problem and I only think that the -- 21 all the press object to any kind of regulation because 22 they don't want any kind of regulation if they -- if it 23 can be avoided, which is understandable from their 24 perspective, but we need protection as well. 25 LORD JUSTICE LEVESON: I understand the point, but I'm not 25 1 sure that to say that anybody can decide what's in the 2 public interest and knows what's in the public interest 3 will actually necessarily work because different people 4 will have different views about what's in the public 5 interest. 6 A. I understand that, but I think we should have a clear 7 definition of what is the public interest as well, and 8 I've suggested that in this book, that we define what 9 the public interest is so that we all know what we're 10 talking about. 11 MR JAY: I think you said a minute ago every serious 12 journalist knows what it is -- 13 A. Quite so, but sometimes they need reminding and I think 14 if it was codified, it would make it easier. 15 MR JAY: Mr Burden, you've given us a mass of helpful 16 material in your book, which will be put to other 17 witnesses. I'm not going to ask you to rehearse it now. 18 You've given us the benefit of your views for the 19 future, you've identified your source material. We're 20 very grateful. I have no further questions for you. 21 LORD JUSTICE LEVESON: Do you still maintain your 22 suggestion, I think it was in your evidence, that -- in 23 the memorandum you submitted to the Commons Select 24 Committee on Culture, Media and Sport, that one of the 25 potential sanctions for an independent press watchdog 26 1 should be the loss of one or more days' publication? 2 A. (Nods head). 3 LORD JUSTICE LEVESON: I wonder whether that doesn't 4 interfere rather too extensively with the freedom of the 5 press? 6 A. Well, that's been put to me and my answer to that is 7 always that if they had a serious story to tell, they 8 could always tell it the next day. If it's a question 9 of finding a sanction that would actually have teeth and 10 hurt them -- 11 LORD JUSTICE LEVESON: I understand that. But I just wonder 12 whether that doesn't risk crossing the line between what 13 is an appropriate way to go and what then does interfere 14 with the essential freedom that we all have to speak our 15 minds. 16 A. I think if they have a genuine opinion to give about 17 anything along those lines, or, indeed, fact, they can 18 always put it in the next day's paper. These things are 19 not usually a matter of hot news, are they? And to lose 20 a day's publication would cost them money at several 21 different levels, and it would make them look very 22 obviously guilty for their transgressions, so it had two 23 effects, as far as I was concerned: it would, A, punish 24 them financially, and B, it would draw the public's 25 attention to the fact that they had transgressed badly. 27 1 LORD JUSTICE LEVESON: How would that cope with what is the 2 other enormous area that we've touched upon but not 3 really investigated as yet, which is the Internet, which 4 is very difficult, based in this country, to regulate if 5 the server and ISP is abroad? 6 A. That's a whole other colossal dimension, which no doubt 7 in due course we're going to have to deal with. But 8 that's not something I was addressing here. 9 LORD JUSTICE LEVESON: No, I understand. I just -- I mean, 10 you've -- 11 A. Well, if it's possible, in due course, I suppose similar 12 laws will have to be put into place as regards material 13 put up on the Internet, but of course that's going to be 14 a great deal more difficult, but again it wouldn't be 15 a bad thing to establish even in the print press that 16 people will have to pay for transgressions, so that when 17 we start looking at it for online news, we're in 18 a better position to start applying it there as well, if 19 that becomes possible or is possible, which 20 theoretically, I suppose, it will be in time. 21 LORD JUSTICE LEVESON: Yes, the risk, of course, is that the 22 risky stories won't be published in the print press but 23 will simply go offshore and still cause all the harm 24 that you speak of. 25 A. In answer to that, sir, of course it doesn't to the same 28 1 extent because in the end material in the print press is 2 much more widely available and more widely read. It's 3 not a question of everybody looking for one particular 4 blog. There is the instance of the footballer where 5 a lot of people did know, through the Internet, the name 6 of the footballer who was, as it were, playing away from 7 home, but actually I didn't, because I didn't look it 8 up, as a matter of fact, I didn't particularly care, but 9 an awful lot of people didn't know, whereas if it had 10 been published on the front page of the Sun, an awful 11 lot of people would have known. I think it will be a 12 while before that kind of information will become quite 13 so freely available, but I accept that, yes, of course, 14 that happens, and I don't doubt that if stories are 15 bumped off the front page through stricter legislation, 16 they may well appear online, but they still won't have 17 quite the same currency. 18 And also it means that the legitimate broadcast 19 media can't refer to them either until they're, as it 20 were, public domain as they've been printed by a British 21 newspaper. So the BBC and the terrestrial broadcasters, 22 indeed, all broadcasters, can't pick up stories from the 23 Internet and pass them on in the way they can with 24 newspaper stories, so I don't think it's quite such 25 a risk, but I accept that of course that will happen, 29 1 but no doubt in due course some kind of restraint will 2 be put on that. 3 LORD JUSTICE LEVESON: Yes, well, thank you very much. 4 A. Yes. 5 LORD JUSTICE LEVESON: Thank you. 6 MR JAY: Sir, that concludes the evidence for -- 7 LORD JUSTICE LEVESON: Yes. We've had to put off our other 8 substantial witness until later in the week; is that 9 right? 10 MR JAY: Until tomorrow. Tomorrow the running order, the 11 four witnesses are Mr Atkins, Mr Nott, Mr Leigh and 12 Ms Harris. The precise order is to be determined and 13 will be organised in the next 15 minutes. 14 LORD JUSTICE LEVESON: Right. Thank you very much indeed. 15 (2.45 pm) 16 (The hearing adjourned until 10.00 am the following day) 17 18 19 20 21 22 23 24 25 30 1 2 I N D E X 3 MR ALEXANDER OWENS (on former oath) ..................2 4 Questions from MR JAY ............................2 5 MR FRANCIS GEORGE BODEN ALDHOUSE ....................35 6 (sworn) 7 Questions from MR JAY ...........................35 8 MR PETER HENRY BURDEN (sworn) .......................67 9 Questions from MR JAY ...........................67 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 http://www.levesoninquiry.org.uk/evidence/?day=2011-12-05
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-6-December-20111.txt 1 Mr Leigh's references on page 72 below to "arms company " was a slip and Mr Leigh has 2 subsequently corrected this to "a construction company " as he intended at the time. 3 Tuesday, 6 December 2011 4 (10.00 am) 5 MR BARR: Good morning, sir. 6 LORD JUSTICE LEVESON: Yes, Mr Barr. 7 MR BARR: We have four witnesses today. We'll be starting 8 in a moment with Mr Nott, then Ms Harris and then 9 finally this morning we have Mr Leigh and this 10 afternoon, Mr Atkins. 11 LORD JUSTICE LEVESON: Very good. 12 MR BARR: The first witness is Mr Nott. 13 MR STEVEN JOHN NOTT (affirmed) 14 Questions from MR BARR 15 MR BARR: Take a seat, please, Mr Nott. 16 A. Thank you. 17 Q. Could you tell the Inquiry your full name, please? 18 A. My name is Steven John Nott. 19 Q. You've provided a witness statement to the Inquiry on 20 a voluntary basis. Are you familiar with the contents 21 of the statement? 22 A. I am, yes. 23 Q. Are the contents of the statement true and correct to 24 the best of your knowledge and belief? 25 A. They are. 1 1 Q. We're going to take your statement as read, but there 2 are a few questions that I would like to ask you to 3 amplify what is in your statement and to summarise it. 4 You tell us, first of all, that you are a member of 5 the general public, currently employed as a delivery 6 driver? 7 A. I am. 8 Q. Winding back now to 1999, you tell us that there came a 9 point in time when you discovered that it was very easy 10 to access other people's Vodafone voicemail accounts? 11 A. I did. 12 Q. Could you tell us in summary, please, how you came to 13 find that information out? 14 A. I was a salesman for a food company based in south 15 Wales. I used to have a lot of customers -- new 16 customers ringing up my mobile phone and leaving 17 messages with new orders on the phone as I was driving, 18 and you couldn't take the orders and write them down as 19 you were driving so they would be left on my voicemail 20 until I'd stopped, to be able to write the orders down, 21 the new customer's details, and ring the production -- 22 the sales team up to put the production into order, 23 basically, at the company. 24 At the time this happened, the network went 25 completely down and I was expecting a lot of new 2 1 customers' orders that afternoon and I was in a bit of 2 a panic trying to get -- waiting for the network to come 3 back on my phone so I could access my orders so I could 4 ring the customers up, basically, to put the orders in, 5 and I stopped at a service station and I rang up the 6 customer services at Vodafone to ask them how long the 7 network was going to be off for because of this problem 8 I had, and they explained to me that the whole of South 9 Wales area was down at the time, it had been off for 10 a few hours, and I told them the problem that I had. 11 They said it's not a problem and explained to me that 12 I could access my voicemail from any other phone, from 13 a landline, from a mobile and so forth. 14 It was new to me at the time, and I asked them how 15 I would do it, and they described -- they explained to 16 me that I would have to ring my own mobile phone number 17 up, and when I -- when it went into the voicemail, said, 18 "This is a Vodafone recall service for..." whatever 19 number you were ringing -- after you'd hear that message 20 and it said, "Please leave a number after the tone", 21 after you'd hear the tone, you'd press number 9. This 22 is what the customer service lady was telling me at the 23 Vodafone customer services. She then said, "You'd have 24 to enter your security number", and I didn't realise 25 what she meant by that and I thought that was the 3 1 security number for when I switch my phone on. At the 2 time, it was new to me, and she said, "No, obviously you 3 don't know what it is, so yours is still at default, 4 which is 3333." And I had that moment where I thought 5 to myself: "This is insecure", straight away because 6 I then said to the lady at customer services: "If that's 7 the case, I could ring anybody else's phone up using the 8 same method and access their voicemail", and they said, 9 "Yes, you can, but you're not supposed to." 10 That was that call and I sort of got my orders and 11 got the food to the company and went on with my 12 business. 13 Q. I see. You then tell us that you later tried to attempt 14 to get Vodafone to change their system and to improve 15 their security. Were you successful in that endeavour? 16 A. Not at all. I made many attempts at ringing the 17 Vodafone headquarters, which was in Newbury at the time, 18 trying to get them to listen. They weren't taking any 19 notice of me, and they kept saying to me: "It's not 20 a problem. We can't see why there's going to be 21 a problem. Why you are making so much of a fuss?" 22 I kept being fobbed off all the time and it wasn't the 23 sort of service I was expecting from them, but then 24 again, who am I to tell a large company to change their 25 system? 4 1 Q. Then you tell us that you then decided to contact the 2 press. First of all, you contacted a reporter called 3 Oonagh Blackman, who was at that time working for the 4 Daily Mirror? 5 A. I did. 6 Q. And that she decided to look into it? 7 A. She did. 8 Q. When you spoke to her on another occasion, she said that 9 she'd tried it on a few numbers that she had? 10 A. She did. 11 Q. And that she had some of her colleagues ringing up 12 publicly profiled people in and around London? 13 A. All of her colleagues in the newsroom is what I was 14 told. 15 Q. Did you understand that they were ringing up these 16 publicly profiled people to tell them that their 17 voicemail was insecure? 18 A. Yes. 19 Q. And were you given to understand that there was going to 20 be a story published? 21 A. Yes, most definitely. 22 Q. But in fact, as we now know, the Daily Mirror decided 23 not to publish the story? 24 A. That's right. 25 Q. And you were told by Ms Blackman that she wasn't 5 1 interested in it any longer; is that right? 2 A. That's correct. 3 Q. Did she explain to you why it was that they weren't 4 going to publish the story? 5 A. No. 6 Q. You explain in your statement that Ms Blackman 7 threatened you with court action if you told anyone? 8 A. She did. 9 Q. Told anyone what? 10 A. Told anyone that I'd explained or showed them or told 11 her how to intercept voicemail, because I then thought 12 to myself that perhaps I shouldn't have told Oonagh 13 Blackman at the Daily Mirror, so I then accused Oonagh 14 Blackman her over the phone of possibly keeping the 15 information to themselves for that purpose. 16 Q. And you were paid 100 for the information by the 17 Daily Mirror? 18 A. I was, yes. 19 Q. You then tell us that you contacted Mr Paul Crosbie, who 20 was at that time a journalist at the Sun? 21 A. He was a consumer affairs correspondent at the time. 22 Q. And you discussed the matter with him, didn't you? 23 A. I did. 24 Q. Did the Sun publish the story? 25 A. No. 6 1 Q. You've been subsequently in correspondence by email with 2 Mr Crosbie about this matter, haven't you? 3 A. I have. 4 Q. And he's explained, hasn't he, that he tried to get the 5 story published but that the newspaper decided not to? 6 A. He said it was a good story and he didn't see why it 7 wasn't published. He didn't understand. 8 Q. He's also explained to you, hasn't he, that he wasn't 9 asked to demonstrate -- 10 A. That's correct. 11 Q. -- the way of accessing voicemail to anybody? 12 A. That's correct. 13 Q. Then you informed New Scotland Yard, didn't you? 14 A. I did. 15 Q. And have you had any reply to your communications with 16 new Scotland Yard? 17 A. Recently or then? 18 Q. Then? 19 A. No. 20 Q. Perhaps we can have a look on the screen, please, at the 21 document which starts at unique reference number 24165. 22 This is a document which is entitled "The Truth About 23 Vodafone". We don't need to go to the following pages, 24 but in the following pages you explain what you had 25 discovered. 7 1 A. Yes. 2 Q. Is this a document that you submitted to New 3 Scotland Yard? 4 A. That is -- it's the same document. However, that's -- 5 that's the second document I sent out. 6 Q. I see, so you tried twice? 7 A. Yes. 8 Q. Was there any covering letter to this second document? 9 A. To the second document, yes, but not the first document. 10 Q. I see. Do you have the covering letter to the second 11 document? 12 A. No. 13 Q. Why is that? 14 A. I didn't find it in my attic where all these documents 15 were. 16 Q. It was a long time ago, but can you remember whether or 17 not you asked the police to do anything? 18 A. No, it would have been a basic note to say, "This letter 19 is what I discovered. Please look into it." It 20 wasn't -- there's enough details in that document to 21 explain what I'd discovered. 22 Q. I see. Then you wrote to the Department of Trade and 23 Industry? 24 A. I did. 25 Q. The Home Office? 8 1 A. I did. 2 Q. And Her Majesty's Customs and Excise? 3 A. I did. 4 Q. Essentially explaining what you had found? 5 A. I sent them the same document. 6 Q. Did you get a reply from any of those departments? 7 A. No. None of them. 8 Q. You go on in paragraph 12 to list the further people 9 that you informed. These included MI5? 10 A. Yes. 11 Q. The National Council for Civil Liberties? 12 A. Yes. 13 Q. The Orange press office? 14 A. Yes. 15 Q. Is that Orange the mobile phone company? 16 A. It is. 17 Q. And what happened there? 18 A. I spoke to a few of the mobile networks at the time and 19 Orange were the ones that were interested at the press 20 office, so I kept in touch with them about what I'd 21 done, basically, what I was trying to do, what I was 22 trying to expose. 23 Q. I see. You then say you contacted ITN? 24 A. Yes. 25 Q. And did they take an interest? 9 1 A. I spoke to Chris Choi, the consumer affairs 2 correspondent at ITN at the time and he sent a film or 3 news crew or some sort -- film or news crew, 4 whichever -- to my house and filmed me in my back garden 5 telling the story about the Vodafone security flaw, not 6 the story about who I'd been to see. 7 Q. I see. And was that broadcast? 8 A. No. 9 Q. Did they explain why that wasn't broadcast? 10 A. No. But I was told to stop hassling them after I kept 11 asking. 12 Q. You tell us you also contacted One 2 One? 13 A. I did. 14 Q. BT Cellnet? 15 A. I did. 16 Q. And the Watchdog programme? 17 A. I did. 18 Q. Did the Watchdog programme take an interest? 19 A. I had a phone call back from them, but nothing came from 20 it. 21 Q. So now we come to BBC Radio 5 Live and it's right, isn't 22 it, that BBC Radio 5 Live did take an interest? 23 A. They did. 24 Q. And that interest led to a short piece being broadcast, 25 didn't it? 10 1 A. It did. 2 Q. On 22 October 1999? 3 A. That's correct. 4 Q. And you've been trying to obtain a recording of that 5 broadcast recently, haven't you? 6 A. I have. 7 Q. And is it right that although Radio 5 Live could no 8 longer find a copy of the broadcast, they did find 9 a copy of the technician's transcript? 10 A. It's part of the transcript. It's only the engineer's 11 transcript, not all of the actual programme. 12 Q. I see. That may well be enough for our purposes. Could 13 we have up on the screen, please, the document which 14 ends 24177. Could we magnify the paragraph that starts 15 "Time now for business", which is almost halfway down 16 the page. Adam Kirtley is a reporter who was conducting 17 the piece, wasn't he? 18 A. He was. 19 Q. And there was a representative from Vodafone involved as 20 well as yourself? 21 A. Yes. 22 Q. And we see in the paragraph that's been magnified the 23 way in which the piece was introduced, don't we? 24 A. Yes. 25 Q. If we turn over to page 24178, we see in summary the way 11 1 in which it was dealt with from Vodafone's side, albeit 2 we only get a part of the conversation. Is it right 3 that Vodafone's answer was essentially to accept what 4 you were saying and to say that customers would be well 5 advised to change their voicemail PINs from the default 6 setting? 7 A. That's right. 8 Q. Thank you. The document can be taken down now. 9 You contacted Mannesmann Dusseldorf, which is 10 a company which was involved in commercial negotiations 11 with Vodafone? 12 A. I did. 13 Q. And also the BBC, you tell us, filmed you in the Blue 14 Peter garden? 15 A. On Percy Thrower's bench. 16 Q. I see. Was that piece ever broadcast? 17 A. No. 18 Q. You then go on to tell us about contact with the South 19 Wale Argus (sic), and the South Wale Argus did print 20 a piece, didn't they? 21 A. It's the South Wales Argus. 22 Q. Could we have up on the screen, please, 24164. This is 23 the article, isn't it? 24 A. It is. 25 Q. Could we magnify, please, in the left-hand column the 12 1 paragraph which begins "Horrified"? We see that the 2 journalist wrote: 3 "Horrified Vodafone subscriber Steve Nott, 32, found 4 that anyone can access his answerphone service and 5 listen to his private messages ... helped by the giant 6 network's own operators." 7 And the article goes on, doesn't it, to explain your 8 discovery? 9 A. Yes. 10 Q. Could we highlight, please, in the second column the 11 paragraph which begins "He said Vodafone has millions of 12 users". We see the paragraph: 13 "He said Vodafone has millions of users and many of 14 them will be MPs and high-ranking government officials, 15 people with highly sensitive information at their 16 fingertips." 17 Was it a concern of yours that there might be 18 security vulnerabilities for people who held sensitive 19 information? 20 A. Definitely. 21 Q. Was that one of your motivations in trying to 22 disseminate your discovery as far as you could? 23 A. Definitely, yeah. 24 Q. Then if we could magnify, please, the paragraph a little 25 below the one that's presently magnified, which begins 13 1 "The Argus put Mr Nott's claims to the test". Thank you. 2 We see there that the Argus said that it put your claims 3 to the test and by following your instructions was able 4 to access Vodafone users' personal message service. 5 They're careful to point out that they did it with 6 permission, and they too appear to have consulted 7 Vodafone, who confirmed that your information was 8 correct, didn't they? 9 A. Yes. 10 Q. So is it right in summary to say that although some of 11 your efforts to publicise the story fell on deaf ears, 12 there was at least some publicity in the mass media in 13 1999? 14 A. Yes. 15 Q. You also informed your member of Parliament, didn't you? 16 A. I did. 17 Q. Your statement moves then to 2010, as the phone hacking 18 saga began to break as a major national story. I don't 19 need to go to the details of your statement, but it's 20 right, isn't it, that since then you've been in contact 21 again with very many different bodies? 22 A. I have. 23 Q. And you have provided a witness statement for use in 24 civil legal proceedings brought by others? 25 A. I have. 14 1 Q. We've been asking every witness who attends the Inquiry, 2 Mr Nott, if there is anything that they would like to 3 say to the chairman in relation to the future regulation 4 of the press. It's an optional question, you don't have 5 to answer it, but if there is anything that you would 6 like to say to Lord Justice Leveson about future 7 regulation, now is your opportunity to do so. 8 A. I would like to say something, if I can, please, if 9 that's okay. Do I need to stand up or sit down? 10 Q. No, no, you can remain seated. 11 A. As an outsider and nothing to do with the industry 12 whatsoever, I feel I don't have the right to have any 13 say about the future of press regulation, but I would 14 like to add something if that's okay. It may or may not 15 be relevant. 16 When I was younger and went to visit my 17 grandparents, I always remember my grandfather sitting 18 at the dining room table picking horses from the 19 Daily Mirror and carefully filling out betting slips 20 with the day's selections. Meanwhile, my grandmother 21 would be sat in her chair with her glasses on the edge 22 of her nose, marking off numbers in the Sun bingo, even 23 using her best bingo board to rest on. 24 I regularly visited my grandparents and once 25 I brought my nan a large pile of Sun bingo cards that 15 1 I'd been given by a WH Smith manager. It used to take 2 her hours just marking the numbers off, but it kept her 3 happy and us too. 4 My nan used to roll up the Daily Mirror sometimes to 5 swat the cat. My grandparents always had a newspaper 6 each back then. They must have been rich. We always 7 had a copy of the Daily Mail in our house when I was 8 growing up. I rarely saw my father reading it though, 9 merely skipping through the news to the crossword. He 10 never had time to read the news stories; he was just too 11 busy. I never really noticed my mother reading the 12 newspaper either. She always managed to complete the 13 crossword that my father hadn't. You can almost sense 14 the air of victory in the house about finishing the 15 crossword that my dad hadn't or couldn't. 16 I left home at 19 and wasn't really a daily 17 newspaper buyer. I thought newspapers were for 18 crosswords, bingo, horse races and TV listings, but 19 I still carried on buying the Daily Mail on Sunday 20 because of its long-running TV guide and that's what 21 I was brought up with. I never read the news pages, but 22 I always did like the crossword and have a similar issue 23 now with my mother. She seems to manage to complete the 24 crossword after I've attempted and failed. 25 Over the past ten years, we've bought the Sun 16 1 newspaper for its Sun holidays promotions and regularly 2 went on cheap holidays. I stopped buying that newspaper 3 because my daughter once had a look through it and 4 couldn't believe her eyes when she looked at page 3. 5 She was shocked by it and I'd never encountered the 6 subject of dealing with soft porn with my kids before. 7 I don't have a problem with it but I had a problem with 8 my daughter seeing it at the time. I don't buy the Sun 9 any more for this reason. 10 My next door neighbours always save their papers for 11 me so I can use them to light my coal fire. So how 12 could I give an opinion on freedom of the press and 13 press regulation when I've been brought up by a family 14 who used newspapers for other purposes than to read 15 them? I'm just giving you an insight into our family as 16 newspaper buyers. Thank you. 17 MR BARR: Thank you very much, Mr Nott. I have no further 18 questions for you. 19 LORD JUSTICE LEVESON: Thank you, Mr Nott. It's quite clear 20 this was a problem you identified in the late 1990s and 21 it's now come home for us all to think about. 22 A. I'm very grateful. Thank you. 23 MR BARR: Would you like to return to your seat, please, 24 Mr Nott? 25 A. Thank you. 17 1 MR BARR: Sir, the next witness is Ms Charlotte Harris. 2 LORD JUSTICE LEVESON: Thank you. 3 MS CHARLOTTE ROSE HARRIS (sworn) 4 Questions from MR BARR 5 MR BARR: Ms Harris, could you tell the Inquiry your full 6 name, please? 7 A. It's Charlotte Rose Harris. 8 Q. And your professional address? 9 A. I'm an employed barrister at Mishcon de Reya. We're at 10 12 Red Lion Square. 11 Q. You've provided a witness statement voluntarily to the 12 Inquiry. Are you familiar with the contents? 13 A. Yes, I am. 14 Q. Are the contents true and correct to the best of your 15 knowledge and belief? 16 A. Yes, they are. 17 Q. We're going to take the statement as read, and as with 18 the last witness I shall just alight on certain parts of 19 it for clarification. 20 You tell us that you specialise in media law, in 21 particular defamation, privacy and harassment, and that 22 you now represent a substantial number of phone hacking 23 claimants; is that right? 24 A. That's right. 25 Q. You provide the statement to assist the Inquiry in 18 1 understanding surveillance of you? 2 A. Yes. 3 Q. And also to assist us with the nature of press treatment 4 of some of your clients? 5 A. Yes. 6 Q. Can we deal, first of all, with the surveillance of you. 7 You've provided to the Inquiry an exhibit which contains 8 documents, some of which were adduced in evidence last 9 week when we heard from Mr Lewis. You have seen 10 surveillance evidence obtained about yourself, haven't 11 you? 12 A. Yes, I have. 13 Q. And that surveillance was of you and of your family? 14 A. It seems that it was of me and my family and my two 15 children and perhaps the people around us as well. 16 Q. The contents of the reports you've seen, were they 17 accurate in their summary of you and your private life? 18 A. They were littered with inaccuracies, but certainly 19 there was a mixture of information, some of which was 20 correct, some of which was speculation and some of which 21 just seemed to be made up. 22 Q. You tell us that you first became aware of this in May 23 of this year? 24 A. Yes. 25 Q. When a contact provided you with some of the documents 19 1 that you now possess on this subject? 2 A. That's right. The documents that I was provided in May 3 this year in my view are not documents that were 4 necessarily prepared by News International. That's not 5 clear. They subsequently led on to the discovery of 6 documents that were the surveillance documents that have 7 been spoken about, so it's important to understand that 8 there was more than one type of surveillance going on. 9 Q. So the first document that you were handed, the one 10 which you are not sure of its provenance, you took that 11 to News International, didn't you? 12 A. I did. I was given the documents. I looked at them. 13 There were four reports. From the four reports, there 14 was one report that focused on myself and other lawyers, 15 and certainly looked like it had some surveillance 16 material in it. There were three other reports that 17 talked about News International generally, people 18 connected to News International and also matters that, 19 as far as I'm concerned, were pure speculation. Not 20 about myself, but about many other people, which is why 21 I was keen that those documents remained confidential. 22 There was nothing to back up what was said in them. 23 But when I saw these documents, I thought that it 24 was important to take it to News International directly 25 because I was able to -- I had a meeting set up with 20 1 them and we obviously are in talks the whole time 2 because we are in the middle of litigation -- and to ask 3 them what they thought and whether they could assist in 4 finding out what on earth had gone on. 5 Q. You took them to Simon Greenberg, director of corporate 6 affairs at News International? 7 A. At the time, yes. 8 Q. You are careful to tell us that you didn't take them to 9 Tom Crone, who was head of legal at the 10 News of the World at the time. Could you explain to us 11 why you chose to go to the director of corporate affairs 12 and not to Mr Crone? 13 A. At the time I didn't know that Tom Crone had any 14 involvement whatsoever in the surveillance or the 15 commissioning of surveillance or any knowledge of it and 16 I was certainly surprised to find out that there would 17 be any kind of allegation in Tom Crone's direction. 18 Obviously I'd worked opposite Tom in litigation for many 19 years. 20 However, having had a good relationship with Tom, 21 he'd stopped speaking to me for a little while, starting 22 from November the year before, and so that communication 23 had stopped and I thought that as Simon Greenberg had 24 come in and was dealing directly with these matters, and 25 having had a meeting set up with him anyway, I'd go to 21 1 who I thought was the most appropriate person to deal 2 with it, and that seemed to be Simon Greenberg and not 3 Tom Crone. But I had no idea that there was any 4 involvement at that stage. 5 Q. Was there anything which prompted this sudden ending of 6 direct communication with Mr Crone? 7 A. I'd been getting on extremely well, I think, as 8 a claimant lawyer with the other side. I think it's 9 very important, when you're fighting battles -- 10 important battles for your clients, not to put yourself 11 in a position that you've fallen out with the other side 12 to such an extent that communication breaks down 13 completely, and that's the basis on which I've tried to 14 run as successful a practice as possible. And so for 15 quite a long time during working on, for instance, the 16 Max Clifford litigation, what had happened was I'd 17 started to speak directly to Tom Crone because he was 18 head of legal, and it meant that I could forego some of 19 the lengthy correspondence and get, you know, straight 20 to it. And we'd got on quite well and it meant that 21 when other issues arose -- not to do with phone hacking 22 but just the day-to-day kind of issues that you have as 23 a media lawyer, somebody might telephone and say that 24 there's an article about to go in -- I would phone Tom 25 directly, and this was, you know, extremely efficient as 22 1 far as working together. 2 In November last year, it stopped completely and it 3 was very sudden, to the extent that I would have been 4 embarrassed, I think, to have phoned him out the blue, 5 having not received -- not received -- not received any 6 telephone calls returned and having stopped all 7 correspondence. I didn't know then that there was 8 anything in connection to me. I've only ever 9 represented my clients in terms of privacy. 10 Q. Am I understanding you correctly that there was no 11 obvious reason why communication suddenly dried up? 12 A. No, but it was sudden. 13 Q. You go on to tell us that you provided the material 14 which you'd been given, which you call surveillance 15 report 1 in your statement, to the police? 16 A. Yes. 17 Q. Then there came a time when you had further contact with 18 Mr Greenberg, and he told you that they had found some 19 more surveillance material relating to you; is that 20 right? 21 A. That's right. The initial reports -- I still don't know 22 their provenance, but that started off an Inquiry by 23 Simon Greenberg as to whether there had been any 24 surveillance, and so at a later date -- I think we get 25 to August by now, so I first gave the documents to him 23 1 in May, but I'd like to add the documents that I gave to 2 Simon Greenberg, I made sure that the private 3 information about the other lawyers and so on wasn't 4 handed over. There was -- we were -- we were careful 5 about that as well, because obviously you have to be 6 careful not to breach somebody else's privacy when 7 you're investigating a serious matter of an invasion of 8 privacy. 9 Q. Yes. 10 A. One of the points -- 11 LORD JUSTICE LEVESON: It's been one of the problems about 12 all this. 13 A. Absolutely. Absolutely one of the problems, and the 14 same problem occurring in the Privacy and Injunction 15 Select Committee, that in order to investigate, you have 16 to be careful not to expose. 17 In August, I went back for a meeting with 18 Simon Greenberg and he said to me that -- and very 19 nicely -- that he was terribly sorry, but it looked like 20 although the original report didn't look like it had 21 necessarily emanated from News International -- we don't 22 know, it might have been anything -- that the material 23 that he'd now discovered did emanate from Tom Crone and 24 that he was going to look into it and he said he would 25 look into it appropriately and so I allowed that 24 1 investigation to continue. It culminated in the 2 documents that are confidential to my witness statement 3 being handed to the police and now it will form part of 4 that inquiry. 5 Q. Was it after the documents had been passed from 6 News International to the police that the police showed 7 them to you? 8 A. Yes, it was, but I was expecting it. 9 Q. Because you'd been told the documents existed? 10 A. I'd been told -- yes. 11 Q. Did the police show you redacted copies? 12 A. They were redacted, but in such a minor way. I mean, 13 they would have found it very difficult to redact this 14 information and to keep it meaningful, which of course 15 is another problem associated with keeping things 16 confidential. Sometimes it's very hard to redact things 17 and keep the meaning, and I think the police had that 18 difficulty. They showed me the documents and it was 19 very helpful. 20 Q. Can we now turn to the question of what motivated the 21 surveillance of you and the investigation of you -- 22 LORD JUSTICE LEVESON: Just before you do, it's right to 23 say, I think, that Mr Greenberg's assurances to you and 24 his sincerity you don't question at all? 25 A. No, I don't. 25 1 LORD JUSTICE LEVESON: So he's been getting on with it? 2 A. As far as I'm concerned, he got on with it. It was 3 something that started in May with me voluntarily giving 4 him the documents and then him volunteering too look, so 5 it was a process that actually I think worked quite 6 well. So no, I didn't doubt at all that there would be 7 a problem with that. 8 MR BARR: Thank you. 9 I'd like to look now at the document which is number 10 7 in the exhibit. If we could have that on the screen, 11 please. That's not the right document. If that could 12 be taken down, please. The heading is "Record of 13 attendance", dated 13 May 2010. Thank you very much. 14 This is a document that we looked at for other 15 purposes with Mr Lewis last week. It's the attendance 16 note of a consultation with leading counsel, 17 Mr Treverton-Jones QC on 13 May 2010. 18 If we move down the page a little bit, so that we 19 can see the text, and it's the section under the 20 heading, "Harris/Reed". Is it your understanding that 21 the Harris referred to there is you? 22 A. I think it's me, yes. 23 Q. And we see there what leading counsel said about your 24 case: 25 "Gregory said that the problem with Harris and Reed 26 1 was the waiver that NGN made in respect of those two. 2 They relied on it. They even said (as recorded in our 3 RXC attendance note of the meeting ..." 4 Then it says "in Andrew", which doesn't quite make 5 sense. Is that referring to a case? 6 A. It would be Sky Andrew, who I -- 7 Q. "... that if there was a problem they would not act. He 8 cannot see that in light of that, there would be any way 9 to get the Reed/Harris off the case unless there is 10 a significant new development. He does not think there 11 is any mileage in reporting them to their professional 12 bodies either." 13 LORD JUSTICE LEVESON: That's all to do with their concern 14 that you were acting for other people, having acted for 15 some others? 16 A. That's right. They weren't keen on the fact that having 17 done a phone hacking case, that we should continue to do 18 phone hacking cases, all of which are actually quite 19 similar, and so they had written to my law firm at the 20 time, JMW, and said that they thought that -- I remember 21 the word "shameless" in correspondence because it was 22 quite a hard and harsh word to use and I took it very 23 seriously, because you do when that kind of allegation 24 is levelled towards you by, you know, what is a serious 25 law firm. And so I took it to my senior partner and 27 1 I took it to Mr Reed and we looked into it and the 2 conclusion we came to -- and I think that their leading 3 counsel here agreed -- was that there simply wasn't any 4 case that -- you know, against us in terms of acting, 5 and so we moved on and continued to act. 6 LORD JUSTICE LEVESON: Yes. But that's the issue that's 7 being discussed here? 8 A. That is the issue, yes. 9 MR BARR: If we go to the next paragraph, it reads: 10 "The facts of the statements of case being similar 11 (for example, the particulars of claim drafted by Reed), 12 being a breach of confidentiality obligations, he was 13 not sure was an issue. A barrister has to plead a case. 14 He has done it in a way that is efficient/sensible. He 15 must be entitled to go back and repeat that process." 16 The gentleman being referred to there is Mr Reed, 17 who is the barrister you had instructed? 18 A. And still is a barrister I instruct. 19 LORD LEVESON: Well, there you are. There's a tick. 20 MR BARR: And we see no complaint there of his pleadings. 21 A. No. 22 Q. "JCP said that there is evidence of a transfer of 23 information from one case to another. There has been 24 reliance of information gleaned in the first case and 25 used in the second, as shown in the similarity of the 28 1 particulars." 2 So this is Lord Justice Leveson's point. There 3 seems to have been a suspicion on the part of Mr Pike, 4 or even a belief, that you'd been sharing information? 5 A. Yes. 6 Q. But let's see in the paragraph below what leading 7 counsel made of that: 8 "Gregory said that there appeared to be no evidence 9 in the pleadings that emanated from the first case. 10 There was no confidential information that they could 11 only have learnt through the Taylor proceedings. It did 12 not seem to him that the similarities were 13 a particularly significant feature." 14 So he's rather pouring cold water over Mr Pike's 15 concern? 16 A. Concerns, yes. 17 Q. Then we see the conclusion: 18 "Gregory said that the case against Harris and Reed 19 was hopeless. Gregory asked what the position was with 20 Gordon Taylor ..." 21 And then we go on to Mr Lewis, who we need not deal 22 with today. 23 There is a second later document that I'd like to 24 draw your attention to. It's at page 19. It's headed 25 "Farrer & Co". If we could have paragraph 5 in the 29 1 centre of the screen, please. This is a letter that was 2 written on 7 September this year by Farrer & Co to 3 Linklaters, who were investigating what has happened. 4 Paragraph 5 contains, in a nutshell, Farrers' 5 explanation for the inquiry: 6 "The reason for this inquiry stemmed from the 7 suspicion that Mr Lewis and Ms Harris were exchanging 8 highly confidential information gained from acting for 9 claimants (and Mr Taylor in particular) in cases against 10 News Group News in order to bring further actions 11 against News Group News by other potential claimants." 12 It then goes on to give their explanation. It says: 13 "While in hindsight the relevance of the results of 14 such enquiries may be open to challenge, we are 15 satisfied that there were legitimate concerns: apart 16 from the issue regarding the possible exchange of 17 confidential information, it was known that Mr Taylor 18 was sufficiently concerned about the conduct of his 19 previous law firm and Mr Lewis that he had instructed 20 new solicitors to make a complaint to the SRA." 21 Accepting that there was in fact, on your evidence, 22 no wrongdoing, do you accept Farrers' position that 23 there was enough for them to be suspicious of to justify 24 investigation of you and your private circumstances? 25 A. No. It seems an incredible thing to do. I'm at 30 1 a separate law firm at this time. There's no wrongdoing 2 or confidential information being passed from my -- on 3 my part, and certainly -- we've gone through that 4 evidence. 5 The idea that when there is this kind of criminality 6 going on, particularly now that we know a little bit 7 more about the levels of knowledge and when various 8 people knew -- and we know this through the privacy -- 9 through the Media Select Committee as well as through 10 this Inquiry. We've begun to get a better picture of 11 what people knew and when they knew it. So taking that 12 into account, the idea that if I was concerned about an 13 opponent lawyer, or anyone, on the other side, that 14 I would decide that a good way of dealing with that 15 wouldn't be to write to them and say, "We are concerned 16 that there is some kind of leak, breach, confidential 17 information", or write to my senior partner or the Law 18 Society, but to take -- you know, to take out 19 surveillance on me and my kids or family members or to 20 find out which of my siblings I lived with in what year, 21 that kind of information -- I don't see how that could 22 possibly help them. Why not just ask the question? Why 23 not write a letter? Why not just go for the traditional 24 approach, which would be: if you have a concern, raise 25 it with me, raise it with my law firm, raise it with the 31 1 Law Society. Don't raise it with Derek Webb, the 2 private investigator, and send him on a train to 3 Manchester. No need. 4 Q. Thank you. Can we return now to your witness statement. 5 I'm looking at paragraph 19. You say that within very 6 recent time, within the last two weeks, Channel 4 have 7 shown you further material they obtained from the 8 private investigator Derek Webb. Is that material 9 you've already referred to today in your evidence or is 10 this something new? 11 A. I amended my statement slightly yesterday and so the 12 date -- just for accuracy, the date changed 13 to December 5. So it's actually inaccurate. It should 14 be probably now four or five weeks ago, just to make 15 that clarification. 16 Yes, there was a list that was published by 17 Channel 4, which named -- I can't remember the numbers. 18 I think it's 118 out of 153, and they did show me that 19 list because I was on it. 20 Q. So that's in addition to the material that you've 21 provided us with on a confidential basis? 22 A. That's in addition. I have written to the 23 Information Commissioner about it. I think it's very 24 important to try and make sure that, again, confidential 25 information is handled properly. So the content of that 32 1 list, of course, would be sensitive and so I've asked 2 the Information Commissioner for guidance on it. 3 Q. You go on in paragraph 19 -- I'm now looking at page 7 4 of your witness statement -- to talk about some of the 5 conversations that you had with Mr Crone in the spring 6 of 2010. You say that between March 2010 and May 2010, 7 the intensity of the litigation was increasing. 8 A. Yes. 9 Q. That's a reference, isn't it, to phone hacking 10 litigation? 11 A. Yes. 12 Q. And you say that you had many conversations with 13 Mr Crone. Of particular interest to the Inquiry, you 14 say: 15 "He was absolutely wedded to the defence that there 16 was only one rogue journalist engaging in phone 17 hacking." 18 A. Yes. When we talked on the telephone, I would sometimes 19 say, "Well, what are you going to do about this? What 20 do you think should happen?" And it was always 21 Tom Crone's position that apart from in this case where 22 there had been one rogue reporter, there was no 23 evidence. He did take the position at times that he 24 hadn't seen all the evidence and so if there was 25 something -- but then historically, looking at the 33 1 Gordon Taylor case and the Max Clifford case and then 2 going on to the Sky Andrew case, it seemed to be that as 3 soon as there was a door open to that kind of evidence, 4 I don't think it was taken seriously or acknowledged. 5 For instance -- and I think this is where it 6 connects to the surveillance, because this isn't about 7 me. This is supposed to be about my clients, the cases 8 and the big wide issue. But in -- if you've seen, for 9 instance, in your proceedings, the name of a person who 10 is alleged to have been involved in your organisation, 11 a journalist or whatever, to then take tips from them 12 about, for instance, the personal life of a solicitor or 13 a lawyer or a barrister on the other side, and to use 14 that -- instead of asking the journalist: "So what 15 happened? How are you involved in this?" but instead to 16 say, "Well, if you think there's something going on 17 here, we'll send somebody up to survey", does seem the 18 wrong approach. Part of the reason why I was surprised 19 in terms of Tom Crone was because we had had these 20 discussions and I always took what he said to mean what 21 he said. 22 LORD JUSTICE LEVESON: Your relationship was professional 23 and you expected everybody to treat you in the same way? 24 A. I mean, absolutely. It's a little bit disconcerting to 25 be sitting next to apparently eminent lawyers in court 34 1 and to find out that a year ago they had ordered some 2 surveillance on you rather than write a letter, that the 3 people who you speak to on a -- maybe three times a week 4 or twice a week on different matters and other cases, 5 had behaved in that way. It's disconcerting and it does 6 give you an insight of how your clients feel, certainly, 7 in terms of not knowing what's going on. 8 One of the difficulties with surveillance -- and 9 I hear this from clients but I also speak for myself -- 10 is you don't really know what happened when. You can 11 only -- you know, did someone watch you as you, you 12 know, left your house, as you left the supermarket, or 13 on what day? And it's the same for my clients, where 14 they've been under either surveillance or their 15 telephone messages have been intercepted. You don't 16 always have the evidence of the particular message that 17 was intercepted or the particular occurrence or place 18 they were when they were under surveillance. It's what 19 you don't know that can cause, I think, stress. And 20 it's -- that in itself might be a new form of harassment 21 to look into. 22 MR BARR: You deal with the impact on yourself of the 23 surveillance that you had come to learn about in 24 paragraph 20. Could you tell the Inquiry, in your own 25 words, please, how you feel about what you have now 35 1 learned? 2 A. I think I have expanded on it a little bit just now. As 3 a lawyer, I feel very much that I want to focus on my 4 cases and my clients and I don't want this mischief from 5 the other side, such as surveillance. It gets in the 6 way. Obviously it's inappropriate and 7 News International have said that and they said it 8 pretty quickly and pretty early on. As a mother, you -- 9 it's natural to feel terribly uncomfortable with the 10 idea of anybody looking into your family or your 11 children. But this has been very obstructive. It's 12 obstructive to trying to sort out some very difficult 13 litigation, some very difficult issues, and it's almost 14 like -- I wish it hadn't happened not only because it's 15 not nice, but it throws a spanner in the works in terms 16 of just trying to get down to the groundwork of getting 17 this whole matter sorted. 18 LORD JUSTICE LEVESON: It disrupts orderly resolution of 19 the -- 20 A. Yes, it disrupts orderly resolution. It gets in the way 21 and you shouldn't have to be suspicious of your 22 opponents in that way. I'm sorry that they were 23 suspicious of me and the other lawyers. I just wish 24 they'd said so. 25 MR BARR: I see. Can we move now from the surveillance of 36 1 you to seek the benefit of your experience as 2 a specialist media lawyer? Have you noticed, in your 3 time in practice, any trend in prior notice? Has it 4 been given more often or less often? 5 A. Generally there's notification. I speak generally. You 6 don't always know. Sometimes if there's a very big 7 media story going on, so many -- you get a certain 8 amount of notification and then all the papers cover it. 9 So you -- you know, you sometimes find yourself in 10 a position -- something's come out on the Internet or in 11 an early publication and then everybody else will 12 publish after that. So it's not always -- you don't 13 specifically always get it. 14 Q. I'm thinking here about exclusive stories, when they are 15 first broken by a newspaper. 16 A. Generally, generally. Exclusive stories by a newspaper 17 I've received prior notification or my client has 18 received prior notification. Sometimes it's not enough 19 prior notification to get a matter sorted. It's very 20 difficult on a Saturday. Saturday can be a very busy 21 day because of the Sunday papers, and so when the phone 22 rings at 4.30 or 5 o'clock, you have to -- and you can 23 tell, because normally there will be a few calls and 24 a journalist on the other end of the phone -- I don't 25 even want to give an example because I don't think I can 37 1 think of an example that isn't real at the moment. 2 Q. You say generally. Can I ask you about those cases 3 where you don't get prior notice? Is there any 4 particular pattern to those? Is there a particular type 5 of case? 6 A. They tend to be cases that have got something to do with 7 criminal law, actually, where there's possibly 8 a stronger apparent public interest in it. So if, for 9 instance, they're reporting some kind of allegation of 10 a crime, you don't -- you tend to hear from the 11 journalists if it's a sex scandal, if it's some kind of, 12 you know, maybe if there's some kind of chance that they 13 might get an interview out of your client, that can 14 happen. 15 There's always the standard ploy of: "We're going to 16 run this. Are you going to co-operate?" And then you 17 have to decide. Up until May, when there was a lot of 18 movement and debate and discussion in terms of the 19 appropriateness of injunctions and privacy 20 injunctions -- one of the first things you do is you 21 decide whether or not this is private information. Is 22 it something that we should consider instructing counsel 23 on immediately? Is this a story that could be stopped? 24 Now, things have moved on. There are certainly less 25 injunctions and you have to decide: are you going to let 38 1 this story run or are you going to manage it in some 2 other way? Are you going to make a comment? I think 3 that the press have been, during this Inquiry, more 4 careful. I think that my workload in terms of scandal 5 has been somewhat reduced. 6 LORD JUSTICE LEVESON: Is that good or bad? 7 A. I'm delighted. Absolutely delighted. Thank you. 8 LORD JUSTICE LEVESON: I'm pleased somebody's pleased. 9 MR BARR: On the question of injunctions, can I ask you 10 this: have you had experience of injunctions being 11 defeated by talk on the Internet or through social 12 media? 13 A. When you say "defeated", do you mean lifted? Or -- 14 Q. No, I mean -- 15 A. Breached? 16 Q. -- the practical purpose is negated. 17 A. Breached. Certainly in terms of the May injunctions, 18 there were breaches on the Internet and one of the 19 things that people say quite a lot is: "Oh, well, what's 20 the point of having this injunction? There's all this 21 information out there." But the fact is all the 22 information isn't out there. If there's an injunction 23 in places and a small amount of information has leaked 24 out, sure, that's a breach, but that doesn't mean that 25 the newspaper can run an exploitative story where they 39 1 pay money to an individual who is breaching the 2 injunction. A lot of the salacious detail doesn't come 3 out. There's a rule of law. There's an injunction in 4 place that has been lawfully provided and one of my 5 problems with it was that it's very easy for -- certain 6 tabloid newspapers who have been eager to expose 7 scandals, I think very hypocritically, don't expose 8 their own scandal. So it's difficult for me to take it 9 seriously when they say that this is all about public 10 morality. 11 Q. I see. Moving to the PCC, have you had much experience 12 of dealing with the PCC? 13 A. I deal with the PCC generally in terms of harassment, 14 generally in terms of photographers. So if, for 15 instance, there have been occasions where I've had 16 clients who have had enormous amounts of photographers 17 outside or they can't exit a building, they've tended to 18 be very effective in terms of sending a notice around. 19 Q. Have they been effective with harassment cases as well 20 as photographer cases? 21 A. One of the things about the PCC is you sort of have to 22 make this choice. You can't have civil proceedings 23 going on at the same time as a complaint with the PCC. 24 So I have tended to go down the civil route, although 25 the relationship that I've had with the PCC in terms of 40 1 getting something done immediately hasn't been too bad. 2 Q. Are there any areas in which you think the PCC could be 3 improved? 4 A. Whether it's the PCC, whether it's some other body, 5 whether everybody decides that it's time to obey the 6 law -- which, you know, seems to be strange that you'd 7 even have to say that -- something has to be done so 8 that there is resolution to law breaking, and whether 9 it's, as I said, a PCC, a new tort, regulation, not 10 having regulation and following the law, as long as 11 matters become better than they are, I'd be pleased. 12 But the PCC have limited powers. 13 Q. So you don't want to be specific about any particular 14 changes you think might help, you simply want a system 15 that will ensure the rule of law; is that right? 16 A. The approach that we take at my law firm, at Mishcons, 17 is that we are -- we have a lot of internal discussion 18 about what should happen, and we are lawyers. So 19 therefore, as a first base, you want to respect the rule 20 of law and you want -- and I think there are decent laws 21 that have been properly applied. When it comes to 22 speaking of regulation going forward, obviously there's 23 a certain reluctance in terms of regulation, not just 24 from the press but in terms of what form would it take? 25 And so nobody wants a sort of bureaucratic knee-jerk 41 1 reaction to some of the terrible things that we've 2 heard. 3 So I can't be specific at the moment about what 4 model and what the outcome of this Inquiry should be in 5 terms of recommendation. I just know that I want the 6 law to be obeyed in some way so that we don't have this 7 ridiculous situation that we had over the injunctions, 8 where it was okay to breach them, where if there's 9 a scandal exposed, that can be printed all over the 10 papers but if there's a phone hacking scandal, there can 11 be silence for years. That doesn't seem right. There 12 has to be proper sanctions as well. 13 LORD JUSTICE LEVESON: It's not just a question of the law 14 in that sort of rather grand sense. One can talk about 15 the criminal law. 16 A. Sure. 17 LORD JUSTICE LEVESON: But there are always going to be 18 areas that are grey, where the criminal law might not be 19 engaged but which many might think -- perhaps not all -- 20 lines have been crossed which should not have been 21 crossed. 22 A. Absolutely. 23 LORD JUSTICE LEVESON: So that's the really difficult issue. 24 A. There are issues in terms of what people agree private 25 information should be. There's -- and where criminality 42 1 starts and where it stops. These grey lines have come 2 up in so many cases, particularly, for instance, just to 3 give you an example, where -- if a journalist is looking 4 into a public person in a position of authority who they 5 suspect might have committed a criminal offence, if they 6 haven't committed that criminal offence, you know, at 7 what point do you get to where it's okay to investigate? 8 Same goes for areas of privacy law. When does your 9 privacy start and stop? When do you first become 10 a public person? 11 So, for instance, if I was addressing some students, 12 like you sometimes do, who might, in ten years' time, 13 have a career which takes them into the public domain, 14 if they become a public figure, does what they did 15 yesterday -- is that still private? Can that be 16 revealed? And should we be frightened, even when we're 17 not a public person, of what we've done or said now? 18 Will that be exposed later? There has to be a certain 19 amount of personal autonomy and freedom to be, without 20 fear that you're going to be a role model in five years' 21 time. 22 So I think a lot of the law is very grey in that -- 23 well, actually, the law isn't grey. I think a lot of 24 the areas of interpretation of the law is grey if you're 25 looking at it from the point of view of how a journalist 43 1 or a tabloid newspaper might interpret it or how the PCC 2 might interpret it and how the person whose private 3 information it concerns interprets it, and then how the 4 public might perceive it. I think it's deeply complex. 5 LORD JUSTICE LEVESON: I agree with you that it's deeply 6 complex. The trouble, of course, is that if you make 7 rules specific -- this is on that signed of the line and 8 that is on the other side of the line -- in one sense 9 that helps, but in another sense it hinders because it 10 removes the elasticity that comes with the exercise of 11 sensible discretion. 12 A. But the judges do that. Part of the rule of law -- 13 LORD JUSTICE LEVESON: Oh, judges do that. That's -- 14 A. That's my point and I absolutely agree with you. Trying 15 to express it like that, when you're in court and you 16 have applied for an injunction, there are areas that the 17 judge will look at and evidence that the judge will look 18 at where he will considerable precisely those points. 19 Here's an area that is private: information about 20 somebody's health. Here's an area about somebody's 21 employment and correspondence or what they've done and 22 where, and where there are these balancing processes 23 going on, the judge will look at that, look at the 24 evidence then make a decision, and then also make 25 a judgment. Very few super-injunctions, injunctions 44 1 that people don't know about; much more public 2 judgments, even if parties are anonymised. 3 I think once a judge has made that decision and it's 4 been put into an injunction that's been served, it is 5 not right for other people, particularly those who have 6 got commercial interests, to pre-judge, make a decision 7 and simply say, "Well, we'll just put that out on the 8 Internet because clearly that decision was wrong." 9 LORD JUSTICE LEVESON: That's all about the rule of law. 10 A. Yes. 11 LORD JUSTICE LEVESON: I'm actually concerned about trying 12 to find a mechanism to resolve these issues, and of 13 course as lawyers, we might very well all say, "Well, we 14 have a system that deals with it. You issue 15 proceedings, you go before a judge and you go into this 16 with microscopic detail and then you get a result." But 17 whether that works for people who don't have a lot of 18 money but whose privacy might be just as important, and 19 whether it indeed works for the press, who then have to 20 respond appropriately -- 21 A. The press don't want regulation, though, I think, 22 generally. 23 LORD JUSTICE LEVESON: -- is another matter. 24 A. The idea, which is a little bit of a myth, that you have 25 to have vast sums of money in order to have a lawyer 45 1 look after your privacy is one of the arguments that was 2 happening in May, where it was: "This is just a rich 3 man's law." You can get a CFA as a claimant and -- on 4 a no win, no fee. Not only that; the fact is that the 5 fodder of tabloid newspapers -- so the front cover, the 6 big sex scandals -- tend to involve not the ordinary 7 person. I'm sure you've heard this argument before. 8 They're far more interested in -- and understandably -- 9 interested, in terms of sales, in who a footballer might 10 or might not be having a relationship with than who, 11 I don't know, my postman might be having a relationship 12 with. And so to an extent it self-corrects, and that's 13 why CFAs are important as well, for both claimants and 14 defendants, and I have worked on both sides of 15 injunctions, for claimants and on behalf of newspapers. 16 MR BARR: For my next questions, there's no need for you to 17 name clients or breach any confidences unless you have 18 instructions which enable you to do so. 19 The Inquiry's had a lot of evidence about phone 20 hacking. What I'd like to ask you is: from your 21 experience of acting for claimants, is email hacking 22 also an issue? 23 A. The first sprouts of evidence starting now -- it's at 24 such an early stage. So there may be -- there may be 25 something. I'd like to take as forensic approach as 46 1 possible. So I expect we'll hear more about that. 2 Q. I see. So not very much as yet? 3 A. No, not very much as yet. There's Operation Tuleta, who 4 are looking into email hacking. But have I seen the 5 evidence of email hacking in the way that I've seen 6 evidence of phone hacking? No, not yet. 7 MR BARR: Thank you very much, Ms Harris. I've asked every 8 witness at the end if they want to say anything further 9 to Lord Justice Leveson. There's already been some 10 discussion of the regulatory issues, but if there is 11 anything else you would like to add, please do so. 12 A. No, I think that we've had the discussion. 13 LORD JUSTICE LEVESON: Thank you very much indeed. 14 A. Thank you. 15 MR BARR: Sir, would you like a break now before we call the 16 final witness of the morning? 17 LORD JUSTICE LEVESON: We'll need a break some time. If 18 it's more convenient now, Mr Barr, as long as you don't 19 blame it on me, then I'm comfortable to have it now. If 20 you want to carry on, whatever. 21 MR BARR: I wouldn't dream of blaming you, sir. 22 LORD JUSTICE LEVESON: You were, actually. All right. 23 We'll take a couple of minutes. 24 (11.10 am) 25 (A short break) 47 1 (11.18 am) 2 MR BARR: Sir, the next witness is Mr David Leigh. 3 LORD JUSTICE LEVESON: Thank you. 4 MR DAVID LEIGH (affirmed) 5 Questions from MR BARR 6 MR BARR: Mr Leigh, good morning. 7 A. Good morning. 8 Q. Could you tell the Inquiry your full name, please? 9 A. I'm David Leigh. 10 Q. And you provided the address of your employer, Guardian 11 News and Media Limited. You've also provided a witness 12 statement voluntarily -- sorry, I think actually in 13 response to a notice, I correct myself. Are the 14 contents of your witness statement true and correct to 15 the best of your knowledge and belief? 16 A. Yes, they are. 17 Q. You tell us that you are a journalist. You are 18 presently an assistant editor at the Guardian, with 19 special responsibility for investigations; is that 20 right? 21 A. Yes, it is. 22 Q. You have more than 30 years' experience working on 23 titles, including the Times, the Observer, the 24 Washington Post and the Guardian, as well as for 25 television's This Week and World In Action programmes? 48 1 A. Yes. 2 Q. In addition to your work as a journalist, you are the 3 professor of reporting at City University, journalism 4 department? 5 A. I am. 6 Q. And you are the author of seven books on journalism and 7 politics? 8 A. This is correct. 9 Q. We're going to take your statement as read and so 10 I shall proceed, as with the other witnesses, simply to 11 ask you to expand on certain parts of your witness 12 statement. 13 Can I deal first of all with paragraph 3 of your 14 witness statement, which is where you set out the role 15 of corporate governance at the Guardian. You tell us 16 that the editor sees every story that is submitted. 17 A. Well, an editor sees every story that is submitted, 18 yeah. 19 Q. An editor, and that's an important distinction, isn't 20 it? 21 A. Well, I don't think the editor personally sees every 22 single story in advance. It would take more than the 23 hours there are in the day to do that. 24 Q. You explain that in your newspaper there are two codes 25 of conduct that you have to have in mind: there's the 49 1 Guardian News Media's own code of conduct and the PCC 2 code of conduct, and the latter is set out at the end of 3 the former, isn't it? 4 A. Yes, it is. 5 Q. I'm just going to read a few extracts from Guardian News 6 Media's code of conduct. It starts off under the 7 heading "Summary", with the quotation: 8 "A newspaper's primary office is the gathering of 9 news. At the peril of its soul, it must see that the 10 supply is not tainted." 11 A. Yes, this is a quotation from our great past editor, 12 CP Scott, who was regarded as a guru in these matters by 13 all of us. 14 Q. So can I take it that that is a principle which you hold 15 dear to your heart? 16 A. Yes, I do. 17 Q. The summary goes on to say that your most important 18 currency is trust? 19 A. I think that's right. 20 Q. The next section deals with professional practice, and 21 amongst other things, it says: 22 "We should be honest about our sources, even if we 23 can't name them." 24 Does that mean that you would deprecate the false 25 attribution of sources in an article? 50 1 A. What do you mean by "false attribution"? 2 Q. We've heard evidence, for example, which suggests that 3 stories which were obtained by the interception of 4 communications were then attributed to the friends of, 5 for example, celebrities. Of course, everyone would 6 deprecate the illegal means, but would you also 7 deprecate the false attribution of the story? 8 A. Yes, I think telling lies or misleading statements about 9 your sources is just wrong. It's misleading the reader 10 as to what is really going on. 11 Q. Moving now to the way in which the Guardian News Media's 12 code deals with the issue of subterfuge. It reads: 13 "Journalists should generally identify themselves as 14 GNM employees when working on a story. There may be 15 instances involving stories of exceptional public 16 interest where this does not apply, but this needs the 17 approval of a head of department, see PCC code section 18 10. This applies to anything we publish, including any 19 information obtained by the subterfuge of others." 20 What I'd particularly like to ask you about there is 21 the use of the word "exceptional public interest". It 22 seems to be a further qualification above and beyond 23 that which we'll come to in a moment in the PCC code. 24 Is that a very deliberate raising of the test? 25 A. Well, what I understand by that and what my own practice 51 1 is, is that normally, as a rule, I don't use subterfuge 2 and I think that would be the case with Guardian 3 journalists. Normally they don't use subterfuge. So 4 the occasions when they do are exceptional by 5 definition, really. 6 Q. We're going to come in due course to some very 7 interesting evidence you can give about your own use, on 8 occasion, of subterfuge, but before we do that, I'd like 9 to take you to clause 10 of the PCC code. It says: 10 "The press must not seek to obtain or publish 11 material acquired by using hidden cameras or clandestine 12 listening devices or by intercepting private or mobile 13 telephone calls, messages or emails, or by the 14 unauthorised removal of documents or photographs or by 15 accessing digitally held private information without 16 consent. 17 "2. Engaging in misrepresentation or subterfuge, 18 including by agent or intermediaries, can generally be 19 justified only in the public interest and then only when 20 the material cannot be obtained by other means." 21 On the face of it, that's a tight test, but what it 22 doesn't do is distinguish between those methods of 23 subterfuge which are legal when one takes into account 24 an express public interest defence, and those techniques 25 which are illegal and have no public interest defence, 52 1 such as the interception of communications. Do you 2 think that that is a flaw in clause 10 of the PCC code 3 or not? 4 A. The wording of the PCC code isn't something that I have 5 in front of me when I'm doing stuff, because their 6 exceptions about public interest are so broad that 7 I think everything in that code is pretty well negated 8 by their remarks "except if it's in the public 9 interest". It's a problem for me like it's a problem 10 for all serious journalists where to draw this line 11 about public interest and we do spend a certain amount 12 of time thinking about that. That's the area of 13 difficulty for this Inquiry, too, I suspect. 14 I don't think that journalists should break the law. 15 I don't think they should break the criminal law, at any 16 rate. Sometimes, as I said in an article you've 17 referenced there, we challenge the law and sometimes 18 it's difficult to stay on the right side of the civil 19 law, certainly, because there are arguments about, you 20 know, how far we should actually be bound by, for 21 example, the alleged law of confidence. So we 22 constantly find ourselves in collision with different 23 interpretations of the law. 24 The bottom line of all this is that I wouldn't want 25 to break the criminal law in what I do, and I don't 53 1 think I have ever deliberately done so. 2 Q. We'll come back to interesting questions such as public 3 interest and what exactly it means in due course, but 4 I'm now going to move on to paragraph 4 of your witness 5 statement, where you tell us about your role in ensuring 6 corporate governance. At paragraph 4, you say: 7 "My formal responsibility is to adhere to the rules 8 personally and to make sure anyone I am working with 9 also does." 10 I'm sure everyone readily understands your duty to 11 obey your employer's procedures in this regard, but what 12 I'm interested in is you see it as your role also to 13 ensure that others do as well. Are you talking about 14 your peers or only about your subordinates? 15 A. Well, the Guardian's a pretty flat sort of organisation, 16 and to try and read it in strictly hierarchical or 17 military terms, subordinates, can be misleading. What 18 I'm talking about really is if I'm working with a group 19 of people, some of whom might be junior to me, I would 20 want to know how they got material, yes, because I would 21 want to work closely and trustingly with the people 22 I do. 23 Q. To put another example to you, if you were working with 24 someone who was equivalent to you or even superior, do 25 you regard yourself as still having an ethical oversight 54 1 role? 2 A. Well, we're all pretty candid with each other. I don't 3 conceal what I'm doing from my superiors and I don't 4 expect my juniors to conceal what they're doing with me. 5 I think we try and deal openly with each other. 6 Q. So is it your experience that a certain amount of peer 7 self-regulation on ethical matters works on your 8 newspaper? 9 A. It's about the culture. One of the terms of reference 10 of the Inquiry appears to be about the culture of the 11 press, and the culture of the Guardian and of other 12 serious newspapers and media organisations is quite 13 different from the sort of culture that you've been 14 hearing about in recent days, and I think our culture, 15 and a culture that's deliberately tried to be 16 encouraged, is one which is -- I don't want to sound 17 holier than thou, but it's a culture that's supposed to 18 be pretty ethical, pretty candid, pretty serious-minded. 19 LORD JUSTICE LEVESON: Could I throw two questions into 20 there? First of all, it was a question that I was going 21 to ask anyway, but you've just raised the issue: the 22 cultures at different newspaper titles may be different, 23 but in your experience, perhaps from your academic work 24 rather than the august bodies for whom you have been 25 employed, is there a difference or should there be 55 1 a difference between the ethical approach of titles that 2 are differently orientated to the Guardian, that have 3 different readership and therefore different interests 4 to those which are at the broadsheet end? 5 A. Well, as you tell from my CV, I haven't worked for 6 tabloids myself, so my experiences are second-hand 7 there. All the media organisations I've worked for have 8 been at the serious end of the business, and I think at 9 that serious end of the business, people do have 10 a strong civic notion about what they're doing. The 11 reason why they feel comfortable about what they're 12 doing is because they think they're serving some useful 13 social purpose, you know, as well as paying the rent. 14 The tabloid -- 15 LORD JUSTICE LEVESON: I think they might think they also 16 fulfil a useful social purpose. 17 A. The tabloids? 18 LORD JUSTICE LEVESON: Yes. 19 A. It seems to me there are other factors that are in play 20 more strongly, and one of those is commercial. It's 21 possible to make a great deal of money out of running 22 a particular kind of newspaper, and some of them are, 23 you know, more cultural in the sense that there's 24 a climate of "anything goes", there's a climate of 25 almost delighting in roguery, sometimes, from the way 56 1 colleagues of mine have talked along the tabloids about 2 their life, about the stunts they pull, about the 3 stories they invent, and that is culturally different 4 from the atmosphere in the newsroom of, say, the 5 Financial Times. 6 LORD JUSTICE LEVESON: Yes, I understand that, and that's 7 why I was focusing on your academic work, whether you'd 8 actually looked at this sort of issue before, because, 9 as you know, there's a great deal of concern about my 10 getting to grips with what goes on in tabloid or 11 mid-market newspapers. 12 A. Well, I don't think the stance we take towards what's 13 going on ought to alter, depending on whether we're 14 talking about tabloids or whether we're talking about 15 serious journalists. If there's wrongdoing, it's wrong. 16 If there's law breaking, it's wrong. If there's 17 unethical behaviour, it's wrong. I don't think you can 18 mount any kind of justification of tabloid behaviour on 19 the grounds that they're different from the broadsheets 20 so they ought to be allowed to behave differently. 21 What you've been hearing at your Inquiry seems 22 focused on the sometimes appalling impact on ordinary 23 people, people who are victims of rather ruthless, 24 amoral behaviour, and I thought that's the bad thing 25 that you're seeking to address. 57 1 LORD JUSTICE LEVESON: Yes. 2 MR BARR: Can we move now to paragraph 6 of your witness 3 statement, where you deal with the question whether 4 practices have changed either recently, as a result of 5 the phone hacking media interest, or prior to that 6 point, and if so, what the reasons for the change were. 7 You say in reply to that question -- and we now have it 8 up on the screen: 9 "Following concerns expressed by the 10 Information Commissioner in two reports published in 11 2006 ..." 12 If I stop there, that's "What price privacy?" and 13 "What price privacy now?" isn't it? 14 A. Yes. 15 Q. "... Alan Rusbridger reiterated that private detectives 16 could only be used to obtain otherwise confidential 17 information where the public interest justified it and 18 in all cases only after reference to him." 19 And this is reference to the editor, not an editor? 20 A. The editor-in-chief, in fact. 21 Q. The word that I'd like to alight upon is your use of the 22 word "reiterated". Just to confirm, is it your evidence 23 that in fact nothing changed, there was just an emphasis 24 on maintaining the status quo, or was there really any 25 change? 58 1 A. It wasn't the Guardian's practice to use private 2 detectives before these reports, and it isn't their 3 practice now. So I think "reiterated" was the right 4 word. 5 Q. You then go on, in answer to question 7, to deal with 6 checking sources and telling us a little about, in your 7 experience, who gets to know what about sources. If 8 I try and condense what you've said, is it right that 9 there are various variables in play, one of which is the 10 sensitivity of the source? 11 A. Mm-hm. 12 Q. And the other is the importance of the story? 13 A. Mm-hm. 14 Q. And who gets to learn the name of the source, whether 15 they get to learn the name of the source, rather depends 16 on the interplay of those variables? 17 A. Yes. 18 Q. So it's right, is it, that there can be stories where 19 the person with editorial responsibility for it does not 20 get to know the name of the source? 21 A. Well, I don't much like the habit of some reporters of 22 cloaking the origins of their stories, the provenance of 23 their stories by talking in mysterious terms about 24 sources. I think -- if I have a story I'm concerned 25 about, I question my colleague or my junior reporter 59 1 pretty closely about the nature of the source, and 2 I expect my editor -- either my immediate editor or the 3 editor himself -- to question me pretty rigorously about 4 a story that's important and sensitive or contentious. 5 Q. Does that necessarily involve naming the source or is it 6 sufficient, in your view, sometimes only to identify in 7 other ways who the source is? 8 A. I think some of it depends on the level of trust. If my 9 editor said to me: "I really want to know who this 10 source is", and I would say, "Listen I really don't want 11 to give you the name but I will tell you the nature of 12 the source, where they come from, how I came by them, 13 a general indication", I would hope that my editor would 14 trust my integrity enough to accept that. There might 15 be occasions on which he wouldn't and say, "Sorry, I'm 16 not going to run this unless you actually tell me who 17 the source is because it's so sensitive." 18 Q. So I'm getting the impression that in certain 19 circumstances, you think that an editor can responsibly 20 give the go-ahead to a story even without knowing the 21 precise source? 22 A. Even without knowing the precise name of the source. 23 I mean, you would certainly want to know the type of the 24 source. 25 Q. Thank you. I'm going to move now to paragraph 9 of your 60 1 statement, where you start to talk about the use of 2 different means and you refer to whether the end may 3 justify the means. We'll come to some specific examples 4 in due course, but if we can deal with it, at this 5 stage, on a theoretical basis. In what circumstances do 6 you think that the end may justify the means? Can 7 I start by asking you: does it always justify the means? 8 A. Well, no, the end doesn't always justify the means. 9 Q. Where do you draw the boundaries? 10 A. It's quite a difficult question to answer because that's 11 the whole issue, isn't it? Where do you draw the 12 boundaries? Where is the frontier? The answer, in my 13 experience, is apart from some rather sort of broad and 14 banal distinctions, it's case by case. It depends 15 absolutely on the particular circumstances of 16 a particular case. The art of what journalists like me 17 do, the judgment we exercise, is whether it's 18 appropriate, it's ethical, it's right to do things in 19 the particular circumstances of a case. 20 Q. If we accept for a moment that it's a judgment that has 21 to be done on a case-by-case basis and is 22 fact-sensitive, what then are the pointers that the 23 journalist can use to answer the question whether the 24 end will justify the means? Is public interest one of 25 the pointers? 61 1 A. Public interest is the central pointer, yes. I mean, 2 that's the compass, really, I mean, I find. You say: 3 what is justified in this case in the public interest? 4 First of all, is the inquiry you're making in the public 5 interest? Is it in the public interest to take the 6 steps you're thinking about taking? And in the article 7 I wrote that you may want to come to in 2006 when the 8 News of the World reporter was arrested, I tried to 9 start what I hoped would be an adult debate about where 10 you draw these lines by drawing examples from my own 11 experience of where there had been difficult decisions. 12 Were you on the right side of the line or not? 13 Q. I wanted to ask you whether, in considering the public 14 interest, can you get a public interest which is so 15 acute that it will justify, in your mind, any means? 16 A. Well, I can't imagine a public interest that would be so 17 acute it would justify pushing a High Court judge off 18 Beachy Head or murdering anybody. 19 LORD JUSTICE LEVESON: I'm relieved to hear you say that, 20 Mr Leigh. 21 MR BARR: So there are some outer boundaries? 22 A. Yes, that's what I meant by banal distinctions. That's 23 pretty obvious, isn't it? 24 Q. Perhaps if we move from that interesting vision to try 25 and test out the boundary more realistically. Can you 62 1 help us as to where in your mind you think the outer 2 boundaries of are what means are out of bounds? 3 A. Right, I mean, I have broad approaches -- I don't/we 4 don't use private detectives. I don't/we don't harass 5 people normally. I don't/we don't write up -- intrude 6 into people's sex lives unnecessarily. Those are very 7 obvious boundaries. And we don't practise chequebook 8 journalism as a rule. 9 Having said that, I can think of circumstances where 10 I've applied those rules in problematic circumstances. 11 Maybe it would help if it did. For example, I remember 12 a source once came to me and he offered to sell 13 information about the way an arms company had been 14 spying on anti-arms protesters. There's an organisation 15 called Campaign Against the Arms Trade and he said he 16 was in a position to sell me documents showing that this 17 arms company had infiltrated the protesters at quite 18 a high level and he wanted 20,000 for it. And 19 I brooded about this and thought: "Well, there is 20 a public interest about exposing this. On the other 21 hand, I'm not sure it justifies me in paying a large sum 22 of money like that" -- because there are good reasons 23 why we don't pay money, apart from being poor, and one 24 of the good reasons is it encourages people to 25 embellish. It sets up a market in stories which can 63 1 taint and corrupt the information. 2 So I said, "No, I won't do it, the balance is wrong 3 for me", and then this person, to my amusement, went off 4 to another newspaper and obviously succeeded in selling 5 it because the same story then appeared in this Sunday 6 paper a few days later. To my chagrin, I realised that 7 actually the documents had shown some rather important 8 things, that some politically connected people had been 9 organising this espionage and in fact it was the person 10 who was at the very top of the Campaign Against the Arms 11 Trade who had been infiltrated in an undercover way, and 12 since then it's been proved that this use of undercover 13 infiltration has been growing as an industry. 14 So I asked myself afterwards: did I make a mistake? 15 Was I too prissy in turning down that? I still don't 16 know the answer, because these things are judgment 17 calls. 18 Q. Perhaps we can explore that a little further in our 19 voyage towards the line. Would you criticise as 20 unethical the newspaper which did pay for that story? 21 A. That's where I'm in a dilemma, because it's like the way 22 the Telegraph newspapers paid a large sum of money for 23 the information about MP's expense. 24 Q. You've stolen my next question. 25 A. Yes. Well, I've often scratched my head about this and 64 1 thought that it's a good job the person selling that 2 didn't come to me because my first reaction would have 3 been: "I don't want to pay a large sum of money for what 4 is, in a sense, stolen documents." Would I have been 5 right? Would I have been wrong? I don't know, because 6 I was never faced with the choice, fortunately, but 7 I think everybody now agrees that the Telegraph was 8 right to do what they did because the public interest 9 was so overwhelming. 10 Q. As a matter of principle, do you think there may be 11 circumstances where a journalist should be permitted to 12 break the law in the public interest to get a story? 13 A. In the abstract, I can imagine circumstances, yes. As 14 I say, obviously if you broke the law in a grave way by 15 murdering someone, there's no conceivable public 16 interest that would justify it, but there might be ways 17 in which, theoretically, the interest would justify it. 18 I can imagine it. 19 Q. I think here we may come on to what some may describe as 20 a fastball, because I want to ask you now what you teach 21 your students as a professor of journalism. Would you 22 ever consider teaching a student of journalism that it 23 might, in certain circumstances, be permissible to break 24 the law if it was in the public interest? 25 A. I try and teach my students of journalism to think. 65 1 I try and present them with these problematic issues, 2 like the ones that I write about in the paper, or like 3 the example I've just given you. I take them through 4 stories that have been published, stories like 5 the Telegraph one, and I ask them to think as deeply as 6 they can about what the issues are. I don't presume to 7 give them the answers, because the whole structure of my 8 teaching is to say: this is about the line, and we'll 9 talk about the frontier and here you find problematic 10 areas and if you think very hard about this, you will 11 work out your own position about what the public 12 interest is. I'm not a teacher like I'm issuing fatwas 13 to people. I see my job as stimulating them to think 14 ethically. 15 Q. I get the impression that the result of that is that 16 ultimately a lot is going to depend upon the conscience 17 of the individual journalist; is that right? 18 A. Well, the informed conscience. If you like, when I'm 19 teaching students, I try and inform their conscience. I 20 say, "These are the factors you ought to take into 21 account." I mean, the chief one is the public interest. 22 It's what is in the public interest? 23 Can I give you another example of where I think 24 I wave wavered about? I think we discussed already at 25 this Inquiry the David Blunkett case, in which people 66 1 started to publish information about his private life. 2 I know that we on the Guardian initially took the view 3 this was over the line, it wasn't in the public 4 interest. Then it transpired that some public interest 5 issues did come up. Had he, because of his personal 6 relationship, fast-tracked a visa for someone? And 7 I then felt it was in the public interest, and I say to 8 my students: "What do you think? You decide. If you 9 had to make that call, do we write this story or not, 10 what are the factors you would take into account? Would 11 it be justified? Would it be not?" And I say it's not 12 easy. We on the Guardian, some of us thought one way, 13 some of us thought another. Some of us thought one way 14 to start with and then changed our views. 15 Q. So if so much comes down to a case-by-case judgment and 16 to the use of an informed conscience, how important is 17 training in upholding ethical standards of the press? 18 A. Oh, well, my experience is that people emerge from 19 journalism courses with their heads full of ethics, 20 because they get taught a lot about it, and as soon as 21 they are plunged into the raw atmosphere of the tabloid 22 newsroom, it comes under a lot of pressure. It's about 23 the culture of the place where you work much more than 24 the culture of the place where you trained. 25 Q. So if the culture is so important, does that point to 67 1 a need for strong ethical leadership? 2 A. Well, self-evidently it does, but I don't think that can 3 happen in a vacuum. Where does leadership come from in 4 a newsroom? It comes from the editor. The pressures 5 that operate on the editor are different in these 6 different places. The pressures that operate on the 7 editor of the Guardian or the Financial Times are quite 8 different, I suspect, from the pressures that operate on 9 the editor of the Daily Mail or the editor of the 10 News of the World. 11 Q. But if the editor is to propagate the right tone, if 12 I put it in that way, are there any pointers from your 13 experience, working on a number of titles, that you 14 would like to share with the Inquiry which might be ways 15 of ensuring a proper culture is instilled? 16 A. I think to be brutal about it, you have to make people 17 fear the law. This Inquiry has come back again and 18 again to the question of law-breaking, and it seems to 19 me that most of the issues of concern, whether it's 20 harassment or it's telephone interception or it's data 21 theft, they're all crimes, and it seems to me that what 22 we've been circling around is the fact that the law is 23 not enforced, and if I was an editor, I'd fear the law 24 if it was enforced. 25 LORD JUSTICE LEVESON: But the law carries with it in some 68 1 regards, certainly in relation to Section 55, its own 2 public interest defence. 3 A. Yes. 4 LORD JUSTICE LEVESON: And if one is to have regard to the 5 wider public interest, that's inevitable, isn't it? 6 I mean, one doesn't have to go back very long in time to 7 see prosecutions which, on the face of it, appear 8 unanswerable but which lead to acquittals because the 9 jury are not prepared to convict in those circumstances, 10 and we can all think of the examples. 11 A. Well, that's the law operating in the right way, I'd 12 have thought. Things are tested in that way. 13 LORD JUSTICE LEVESON: And the other problem about the law, 14 if I might just say, is that in one sense you're 15 absolutely right, and if there could be a policeman at 16 everybody's shoulder, then it would be very easy to say, 17 "This isn't our problem, let the police sort it out", 18 and indeed now we're in the position that an enormous 19 police investigation is being undertaken for reasons 20 which everybody understands. But the fact is that there 21 isn't a policeman at everybody's shoulder and there 22 won't ever be, and therefore we can't just say, "Well, 23 it's a failure of the criminal law", and so wash our 24 hands of it, can we? 25 A. I wasn't suggesting -- 69 1 LORD JUSTICE LEVESON: I know you weren't, but I'm testing 2 the proposition that it's comparatively straightforward 3 to say there's a criminal law, harassment, data theft, 4 RIPA interceptions. All that stuff bites on the 5 individual, but it does have its own complications. 6 A. What I was driving at was I don't think you get very far 7 by improving training or by appealing to the conscience 8 of the editor of a tabloid newspaper that's driven by 9 greedy and cynical attitudes. I don't think you'll get 10 very far by appealing to people's conscience. You have 11 to look at the pressures that are operating upon them. 12 LORD JUSTICE LEVESON: I understand, and with respect, 13 I think that's absolutely right. But if one just 14 presses that a little bit, the more you try to put in 15 levers in place to drive what might be thought to be 16 a more appropriate approach, the more you run into 17 arguments about the freedom of the press and the very 18 real importance that everybody has to be able to express 19 themselves as Article 10 permits. 20 A. I've been campaigning for freedom of the press for as 21 long as I've been a journalist, and I couldn't disagree 22 with you in any way, but fear of the law does act as 23 a deterrent, and one of the things that I've written 24 about is I think it's a shame the law is not enforced. 25 I think it's a shame, for example, that the proposal to 70 1 bring in custodial sentences for improper breach of the 2 Data Protection Act for blagging data, that that hasn't 3 happened, and I think the lobbying by some sections of 4 the tabloid press against it shows it would be a good 5 sanction. It would probably make private detectives 6 very reluctant to, you know, risk jail by doing these 7 kind of things unless there was a proper defence. 8 So, you know, I would like to see some deterrents in 9 place, and I'm sure they would have an effect and I'm 10 sure they would have more of an effect than abjurations 11 on editors to behave better and be nicer people. 12 LORD JUSTICE LEVESON: I understand. I understand the 13 point. 14 MR BARR: Can we move now to consider a couple of specific 15 techniques. You tell us at paragraph 19 of your witness 16 statement about an episode in which you stood up, if 17 I use the jargon, a story by making a telephone call 18 under a false pretence to Mark Thatcher. 19 A. Yes. 20 Q. Again to use a jargon, I think that was blagging, wasn't 21 it? 22 A. Sort of blagging. I mean, I was trying, as I said, not 23 to be holier than thou, so I was trying to think of 24 examples about my own practice that people would regard 25 as questionable and, you know, analyse them. And this 71 1 was a minor example of the use of subterfuge. I'm 2 trying to prove -- this is many years ago when I was on 3 the Observer. I'm trying to prove there's a connection 4 between Mark Thatcher, the then Prime Minister's son, 5 and an arms company executive because I suspect that 6 they have a relationship, that the arms company has 7 hired Mark Thatcher for their own purposes. 8 The man is called Jamil Amunyi. I ring up 9 10 Downing Street and say, "I'd like to be put through 10 to Mark Thatcher", the switchboard operator says, "Who's 11 calling?" and I say, "Tell him it's Jamil." When he 12 comes on the line, what he immediately does is he says, 13 "Hi Jamil", and I think: "That's brilliant. I've proved 14 that these two men know each other." And we then have a 15 conversation -- I have a conversation with Mark Thatcher 16 about it and say, you know, "You had a deal with this 17 person", and he says, "Oh, it's confidential." So 18 I think: "Ah, that's proved again." And we then wrote 19 a large story on the back of this, with some confidence, 20 saying that Mark Thatcher was employed on the quiet by 21 this firm. 22 Now, I think that was completely in the public 23 interest and I think the minor deception that I used, 24 minor and temporary, was completely defensible and 25 appropriate, and I can't think of another way in which 72 1 I could have got that information. I was investigating 2 impropriety, or perhaps worse, in public figures. 3 So I give that as an example of the use of 4 subterfuge that I regard as completely okay, especially 5 bearing in mind that journalists on public interest 6 investigations have to use a certain amount of guile 7 because we don't have powers as journalists. We can't 8 arrest people. We can't summon people to an Inquiry 9 like this, under pain of contempt of court, and we have 10 to find out things often from powerful people who are 11 anxious to conceal them. 12 Q. Thank you. I've been asked on behalf of another core 13 participant to ask you whether you had any role in 14 blagging information from Jonathan Aitken. 15 A. The short answer is no. The other participant who has 16 asked you that seems to have their research a bit 17 sloppy. I didn't have anything to do with that. 18 I wasn't working at the Guardian at the time. You'd 19 have to ask someone else if you want details. 20 Q. Thank you. In that case, we can move on to the general 21 point which you were just adverting to, which is the 22 important point if you're going to blag information is 23 whether it's in the public interest. So if we think 24 about public interest for a moment. I'll start with 25 what might be described as a very underarm ball. We've 73 1 had a journalist who's come to give evidence who 2 suggested that the public interest is what the public is 3 interested in. Do you agree with that proposition? 4 A. No. To my mind, it's an absurd proposition and most 5 judges appear to say it's an absurd proposition too. 6 I have some experience of the public interest being 7 used in a legal context because it's a live phrase in 8 the so-called Reynolds defence in libel now. We have 9 a defence in libel if we can show that what we're 10 investigating, what we're writing about, not only have 11 we taken steps to verify it but the original story that 12 we were pursuing was in the public interest to make 13 known. So I go through this checklist when I'm writing 14 stories that are potentially libellous. Is what I'm 15 doing in the public interest? Have I taken the relevant 16 steps to verify it? Have I behaved as a responsible 17 journalist? So actually, that notion has got quite 18 familiar to newspaper lawyers and to newspaper 19 reporters. 20 Q. If the public interest is not what the public is 21 interested in, what pointers can the journalist thinking 22 through the assessment that you've just spoken about use 23 to establish whether a story really is in the public 24 interest? 25 A. Well, I mean, Lord Northcliffe said all those years 74 1 ago -- and I think my colleague Nick Davies repeated 2 it -- that news is something that somebody wants to 3 suppress. All the rest is advertising. That's 4 a starting point. You know, it has to be something that 5 somebody wants to suppress. And then the question is: 6 do they want to suppress it for a good reason or bad? 7 There are many powerful organisations in society who 8 want to keep things quiet for their own reasons, and 9 that includes newspaper corporations, too, obviously. 10 The question I ask myself is: is this something that 11 ought to be made known? You know, would people agree 12 generally that this is something that society ought to 13 know about? 14 Q. If I might suggest, in the answer you've just given, it 15 was hard to distinguish between -- you mentioned a large 16 corporation, but initially it was hard to distinguish 17 whether you were talking about large corporation or an 18 organ of the state on the one hand or a private 19 individual on the other. Perhaps with private 20 individuals the question is particularly acute. When is 21 a story about a private individual going to be in the 22 public interest? 23 A. Well, I gave you the example about the Blunkett case, 24 where a private relationship of a public individual -- 25 it was very uncertain where the public interest was, and 75 1 in fact possibly the public interest wasn't there at one 2 point and was at another. 3 Generally, private individuals, there's much less 4 public interest in writing about their private lives, 5 and that's why papers like the Guardian don't write 6 about -- we don't publish gossip about celebrities, by 7 and large. 8 Q. Does there need to be some wrongdoing that is being 9 uncovered or not? 10 A. Broadly, I'd have said yes. That includes people being 11 hypocritical, I suppose. I mean, I don't have very much 12 time for these arguments about adulterous footballers or 13 role models for small boys, but maybe they are for all 14 I know. 15 LORD JUSTICE LEVESON: I'm sorry, just so I understand that, 16 you don't consider that marital infidelities, if that's 17 what they are, of footballers justify invasion of 18 privacy in publication? 19 A. By and large, no. But in my mind, there is not a sort 20 of either/or situation. 21 LORD JUSTICE LEVESON: No, I can see that. 22 A. That something is either allowed to be published or to 23 be forbidden to be published. It seems to me that 24 there's a category of material which there probably 25 isn't any or much public interest in making known, such 76 1 as footballers' marital infidelities, but it doesn't 2 automatically follow from that that there's a public 3 interest in censoring it or banning it. Does that 4 distinction make any sense? 5 LORD JUSTICE LEVESON: No, no, I understand, I think. Quite 6 how one works that out, though, is not entirely 7 straightforward. 8 A. We're all hoping you will. 9 LORD JUSTICE LEVESON: Yes. Move on, Mr Barr. 10 MR BARR: I'll move on this far, sir. 11 In the relationship between public interest and 12 privacy, we've heard a witness who said that in many 13 years working as a journalist and many intrusions into 14 privacy, he'd never come across anyone doing anything 15 good, and he effectively said that privacy was something 16 which people who were doing bad things needed. Is that 17 a proposition with which you would agree? 18 A. No. I think it's a proposition few people would agree 19 with. We all have not exactly skeletons in our 20 cupboard, perhaps, but things about our private lives 21 which are embarrassing, perhaps, or shameful perhaps, or 22 just overly intimate or -- I mean, medical things, for 23 example, and the whole question is whether you're 24 entitled to bring these up. People aren't necessarily 25 doing something wrong because, for example, they are now 77 1 an MP but 25 years ago they had a brief affair with 2 a woman not their wife, or a man not their husband. It 3 doesn't follow, does it? So this line that privacy is 4 for paedos was a very good News of the World headline, 5 and I thought it was quite insupportable. 6 Q. Can we turn now to an article that you wrote on 7 4 December 2006. It's entitled "Scandal on Tap" and 8 there should be a copy for the projector. 9 LORD JUSTICE LEVESON: Sorry, what date? 10 MR BARR: It's 4 December 2006, sir. 11 LORD JUSTICE LEVESON: I don't know that my copies are in 12 chronological order. 13 MR BARR: It should be immediately behind the tab 1 divider 14 in your bundle, sir. 15 LORD JUSTICE LEVESON: Yes, that makes an assumption. 16 MR BARR: In that case, it's immediately after the -- 17 LORD JUSTICE LEVESON: I have it, "Scandal on Tap". 18 MR BARR: That's right, sir, thank you. 19 LORD JUSTICE LEVESON: Yes. 20 MR BARR: This is an article you wrote after Clive Goodman's 21 guilty plea, isn't it? 22 A. Yes. 23 Q. And you discuss the ethics of journalism and various 24 respects of it. Can I alight, first of all, please, on 25 the second paragraph, where you say in the second 78 1 sentence: 2 "But there is not a newspaper or TV channel in the 3 country what has not, on occasion, got down in the 4 gutter and used questionable methods." 5 Can I ask you, first of all, was that a statement 6 that you believe to be true or was it using a little bit 7 of dramatic licence? 8 A. It was put in a blunt and provocative way because I was 9 hoping to stimulate people to read the rest of it and 10 enter into the debate without immediately rejecting what 11 I was about to say on the grounds of: oh, it's just the 12 Guardian being holier than thou. I was trying to be as 13 frank and candid as I could be. I wouldn't say 14 I embellished it but I would say I put it in a more 15 blunt way than I might normally. 16 Q. I see. To what extent was this assertion based upon 17 factual knowledge that you possessed at the time? 18 A. Well, I was racking my own brains for all the things 19 I've done that people might have questioned over 30 20 years in both newspapers and television. 21 Q. I certainly don't want you to name them or indeed the 22 titles they were working for, but were you thinking 23 about the actions of others as well that you might have 24 known about? 25 A. Well, I've come across lots of newspaper malpractice 79 1 over the years, and you know, I mention a few things 2 there. 3 Q. What I'm ultimately coming to is to what extent could 4 Lord Justice Leveson use this statement as an evidential 5 basis? 6 A. Well, it's not evidence because there's no detail there, 7 is there? It's a sweeping assertion designed to 8 position me in a particular place to start off the 9 argument. 10 Q. So really, as you say, something to get the readers' 11 attention? 12 A. Yes. 13 Q. All right. Let's move two paragraphs down: 14 "I've used some of those questionable methods myself 15 over the years. I, too, once listened to the mobile 16 phone messages of a corrupt arms company executive -- 17 the crime similar to that for which Goodman now faces 18 the prospect of jail. The trick was a simple one: the 19 businessman in question had inadvertently left his pin 20 code on a print-out and all that was needed was to dial 21 straight into his voicemail." 22 And you go on to say: 23 "There is certainly a voyeuristic thrill in hearing 24 another person's private messages. But unlike Goodman, 25 I was not interested in witless tittle-tattle about the 80 1 royal family; I was looking for evidence of bribery and 2 corruption. And unlike the News of the World, I was not 3 paying a private detective to routinely help me with 4 circulation-boosting snippets." 5 Now, you are careful to point out those distinctions 6 between what you did and what Mr Goodman had been doing. 7 Does it boil down to you thought that what you were 8 doing was in the public interest and therefore it was 9 ethical? 10 A. Well, I don't hack phones normally. I don't hack -- 11 I have never done anything like that since and I'd never 12 done anything like that before. On that particular 13 occasion, this minor incident did seem to me perfectly 14 ethical, yes. 15 Q. As a matter of law, there isn't a public interest 16 defence to intercepting -- 17 LORD JUSTICE LEVESON: Don't tell me I should have cautioned 18 Mr Leigh. 19 MR BARR: There is a code for Crown prosecutors. 20 LORD JUSTICE LEVESON: Yes, right. 21 MR BARR: Which may be your get out of jail free card, and 22 so I think the answer to the chairman's question is no, 23 but do you think there is a discrepancy between the lack 24 of an express public interest defence to interception of 25 communications and the express defence in the DPA? 81 1 A. Well, I'd prefer it if there was an express public 2 interest defence. I think, in fact, there probably is 3 an implicit public interest defence in cases like that 4 because -- and I listened to the former 5 Director of Public Prosecutions, what he had to say 6 about this, Sir Ken Macdonald. There is always an 7 implicit public interest element about whether to 8 prosecute or not, and I like to think that if the 9 incident I've described there came to the attentions of 10 the DPP and I was asked about it, the DPP would conclude 11 that there was no public interest in seeking to 12 prosecute me or another person for doing something like 13 that, and that's a backstop that the law has, isn't it, 14 to stop it making an ass of itself. 15 LORD JUSTICE LEVESON: There are actually a number of back 16 stops, to be fair. I think that first of all there is 17 the possibility of a specific defence as in section 55. 18 Secondly, even if there isn't, there is the code, and 19 one of the things that I will need to think about is 20 whether to encourage the director to issue a guideline, 21 rather as he has done in relation to assisted suicide, 22 to provide some clothes on the framework of how 23 discretion will be exercised. 24 The next is the jury, as we discussed before the 25 Ponting defence, and finally there is, I hope, at the 82 1 end of the line, a sensible judge who would take a view 2 that even if it is a strict breach of the law, and even 3 if there isn't a public interest defence, then this is 4 not a very egregious problem. 5 So there are a number of hoops through which 6 a journalist would jump or not jump, as he might prefer, 7 which could cover the situation. That's not intended to 8 give you comfort for the future. 9 A. I think I would say a journalist ought to be prepared to 10 face up to the consequences of what they've done. 11 I mean, if I do something that I think is okay in the 12 public interest, I have to be prepared to take the 13 consequences, and it's very reassuring to hear you say 14 there are that many backstops. 15 LORD JUSTICE LEVESON: Well, I think there are. I'm just 16 listing them from my experience of the criminal law. 17 A. What I think is not okay is that the law shouldn't move 18 against a journalist just because they're afraid of the 19 power of the press, and that seems to be what's happened 20 with the News of the World cases. I think. 21 MR BARR: You go on in your article to say: 22 "That is my defence when I try to explain newspaper 23 methods to my current university journalism students, 24 some of whom are rather shocked." 25 That's why I asked you earlier on about what you 83 1 teach in this respect. What are your students shocked 2 by? 3 A. Well, I try to shock them. I try to say to them: don't 4 imagine that investigative journalism is just a case of 5 a knight in shining armour riding about on a milk white 6 steed doing easy things. You have to do difficult 7 things. Journalism of this kind requires sometimes 8 guile. It requires sometimes making hard choices. If 9 you're to get results, then you have to sometimes, you 10 know, go up to the edge of what's acceptable. So you 11 need to have a clear ideas in your own minds of what is 12 acceptable and what's not, what is in the public 13 interest and what's not. So I'm trying to wake them up 14 to the hard choices and the difficulty decisions that 15 I get paid to make. 16 Q. If they need any indication of how grubby things might 17 get, you go on in your article to say: 18 "I did not turn up my nose when the notorious Benjy 19 the binman emptied a bag of stinking rubbish onto my 20 carpet. He wanted to show me incriminating statements 21 about Saudi arms deals which a City law firm had been 22 too idle to shred before putting out on the street for 23 collection." 24 LORD JUSTICE LEVESON: This is the example you've already 25 given us, is it? 84 1 A. No, this is a different example. 2 LORD JUSTICE LEVESON: You gave an example of being asked 3 for a large sum of money. 4 A. Yes, that was -- 5 LORD JUSTICE LEVESON: That was different? All right. 6 A. That was different. Another one. 7 LORD JUSTICE LEVESON: I see. 8 MR BARR: "I read the information with interest. I did, 9 however, refuse to pick up the other gossipy documents 10 about celebrities that Benjy was also peddling and when 11 he wanted large amounts of cash for copies of those 12 documents he had that were rather more in the public 13 interest, I sent him off to the Sunday Times." 14 Can I ask you to be clear about what the objections 15 were on an ethical ground to buying material from Benjy 16 the binman? Was it simply financial or was it more than 17 that? 18 A. No, it was more than that. Benjy, who was a notorious 19 figure in Fleet Street, had presented himself to me 20 unsolicited and was waving these pieces of paper at me. 21 I thought those particular pieces of paper were 22 important and in the public interest and should be made 23 known. I didn't want to pay him for them because 24 I didn't want to encourage him. If he was going to do 25 this stuff of his own volition as a law unto himself and 85 1 put it in front of me and I was going to take a view on 2 whether it was appropriate to publish it or not, that 3 was one thing. I didn't want to be commissioning the 4 man, as it were, to go and root through people's 5 dustbins. 6 Q. I see. There was some evidence given by Mr Davies about 7 this instance. Did you hear that evidence? 8 A. I have seen that evidence, yes. 9 Q. And he suggests that you were very clever in passing on 10 Benjy to the Sunday Times because it resulted in you 11 obtaining the information but somebody else paying for 12 it and the matter coming out into the public domain in 13 any event. Do you agree and accept Mr Davies' evidence 14 or is your evidence different? 15 A. I think what Nick Davies meant -- he meant it as 16 a compliment, he told me. I didn't regard it as clever 17 so much as a solution to a ticklish ethical problem. 18 Here am I. I'm a professional journalist. When 19 information comes my way that's of importance, I want to 20 know about it so that I can make a judgment about what 21 to do about it, but I didn't want -- for the reasons 22 I've given, I didn't want to be paying Benjy and 23 encouraging him in his sordid behaviour. So what was 24 I to do? And I thought it was quite a good compromise, 25 that he could deal with newspapers who were less 86 1 fastidious than me about paying, but I would continue to 2 have sight of his stuff, so that if anything came along 3 that was important, I'd know about it. That was my 4 thinking at the time. 5 Q. You used the phrase "continue to have sight of the 6 material". So was this an ongoing relationship? 7 A. Well, it went on for a little while. It went on for 8 a little while, and I said to him, "If you have things 9 you think would be of interest to me, then I'd like to 10 see them", you know, and he said for a while: "Yes, 11 okay, I'll do that." But his primary interest was, of 12 course, in the newspapers who were going to pay him, and 13 indeed mainly what he was doing was tittle-tattle about 14 celebrities in which I was not interested at all. 15 Q. And so what was in it for him, continuing to show you 16 material? Was it that you would put him in touch with 17 somebody who might be interested in paying him for it? 18 A. I think -- he's a rather erratic person and I'd hesitate 19 to look into his mind. At the time, he seemed to feel 20 friendly enough towards me because, you know, I would be 21 nice to him. I would be civilised to him and I would 22 say, "I'd like to help you". I would say all the things 23 you'd say to somebody that you want to keep in play, as 24 it were. I'm sure you do understand that in the world 25 of journalism, just like the world of being a detective 87 1 in the police force, you have to deal with some rather 2 unsavoury people because they may be in possession of 3 important evidence. 4 Q. Yes, because what I'm building up to, of course, is the 5 ethics of having a continuing relationship, obtaining 6 information from a man who is obtaining it in the way 7 that he was. Did you think that the public interest in 8 what you were receiving justified your conduct? 9 A. Yes. Evidently I did. That was the decision I took, 10 that it was acceptable in the public interest to 11 structure the brief relationship in that way. 12 Q. Even though he was stealing the rubbish? 13 A. Well, my stance was I wasn't encouraging him to steal 14 rubbish. It wasn't -- I didn't give him the idea. He 15 was going to continue to do it whatever I did or said. 16 Q. You go on in your article to deal with stings and then 17 blagging, and you give the example we've already touched 18 upon with Mark Thatcher. You discuss the public 19 interest. 20 I'd now like to settle on a paragraph on the second 21 page of the article. It's the fourth paragraph down. 22 It needs to be read with the end of the third. In the 23 third, you've said that the rule should be that 24 deceptions, lies and stings should only be used as 25 a last resort, as indeed you've told us today. 88 1 A. Yes. 2 Q. At the end of that paragraph you say: 3 "I have had my share of confidence injunctions, lost 4 libel actions and threats of prosecutions under the 5 Official Secrets Act. These tend to breed disrespect 6 for the law, and a nonchalant attitude to these 7 billionaires and cabinet ministers who wheel in 8 solicitors when it suits them to try to conceal their 9 own crimes and misdemeanours." 10 I'd like to explore with you in what sense you meant 11 "disrespect for the law". 12 A. Well, just as earlier on when I spoke about the 13 voyeuristic thrill of listening to other people's 14 private messages, I was trying to think myself into the 15 frame of mind that takes some journalists, particularly 16 tad journalists, so cavalier about what they do and 17 I was trying to think of the pressures that work on 18 them, and one of the pressures that does work on all 19 journalists -- not just tabloid journalists, not just 20 serious journalists -- is that you do collide from time 21 to time with the law or the law as it's being enforced. 22 At its most crude, when you're trying to take on rich 23 people and powerful corporations, they can and often do 24 hire fleets of very expensive lawyers in order to try 25 and intimidate you by threats of libel, for example. 89 1 This makes you feel rather hostile to the fleets of 2 expensive lawyers who come after you, and it makes you 3 fell that the law is being misused against you. 4 When you've been subject to injunctions and super 5 injunctions wrongly, as I have and other journalists 6 have, things that are not about privacy issues, you very 7 much sympathise with what Ian Hislop, the editor of 8 Private Eye once called "censorship by judicial 9 process". What this means is you're a journalist doing 10 the right things, trying to expose wrongdoing of various 11 kinds. Your opponents then go to court and they get an 12 injunction from, let's say, not particularly 13 well-informed judge, and it then costs you and your 14 newspaper immense amounts of time, which is distracting, 15 and money, which you may not have, to fight your way out 16 of the legal mire into which you've become entangled by 17 your wealthy opponents, and I think that's an abuse and 18 I think "censorship by legal process" is a good phrase 19 to describe it. 20 When you're on something like the Guardian, you have 21 legal resources so long as we still, you know, get some 22 revenue, to fight these things. When you're a small 23 magazine or when you're, say, a scientist saying 24 something at a scientific conference or whatever, you 25 just don't have the resources to fight that and so the 90 1 lawyers sit on you and you can't fight your way out of 2 the legal mire because you don't have the money or the 3 time. Those are the kind of experiences which lie 4 behind me saying that some of these collisions tend to 5 breed disrespect for the law. What I mean is that the 6 law can be abused against journalists trying to do good 7 things. 8 LORD JUSTICE LEVESON: I'm not so sure that is quite how I'd 9 read that sentence but I'd just like to take forward the 10 idea that you've just identified, because what I would 11 like to think about, and I want everybody to think about 12 is how you solve that, because on the one hand what you 13 are criticising is the abusive use of the law to smother 14 appropriate debate or discussion, but it's not a million 15 miles away from having the problem that the journalist 16 is abusing his or her position to interfere with the 17 legitimate activities of whatever. I mean, these are 18 two sides of the same coin. The problem with it that 19 you've just identified is that it's all too expensive, 20 because you have very distinguished Queen's Counsel and 21 solicitors and lawyers and everybody all climbing out of 22 the woodwork, looking at the authorities, trying to 23 analyse the position, engaging judges on a Saturday 24 night, who is the duty judge -- a position which 25 I myself have been in -- who is trying to do the right 91 1 thing. So all that, but if not that system, what system 2 is there or should there be to resolve that sort of 3 issue? 4 I don't necessarily ask you to deal with it now, 5 unless you already have a prepared solution in your 6 inside pocket, but it is a very, very important issue, 7 and to my mind one of the crucial questions which I have 8 to address. 9 A. There are a couple of things I'd like to say, if I may. 10 Obviously journalists do things wrong sometimes and the 11 law is there to stop them. Prior restraint is a very 12 bad way forward. I think that's a principle that's been 13 lost sight of. When you hand out injunctions, which is 14 then a big struggle and an expense to struggle out of, 15 you're applying prior restraint. "Prior restraint" is 16 another word for censorship. 17 I know that in privacy cases everybody says, oh, 18 well, you have to have an injunction because otherwise 19 the cat is out of the bag. I don't think that's a good 20 argument. I think what you need is punitive damages. 21 If you had punitive damages, a newspaper will be very 22 much deterred from invading somebody's privacy if they 23 know that the last time that happened, it cost them 24 1 million, and I think punitive damages is a much 25 better way to go than censorship in advance. 92 1 LORD JUSTICE LEVESON: I understand that, but then you have 2 to deal with Mr Mosley's argument that his life, which 3 had been lived motor racing and the rest, is now defined 4 by an article that the court ruled was an inappropriate 5 invasion of his privacy. 6 A. Yes, but my argument is that that article would never 7 have been published and that video would never have been 8 put out if the News of the World had known that it was 9 going to be -- it was going to be penalised for millions 10 of pounds as a result of doing so, so they wouldn't have 11 done it. They did it with impunity. So I think if you 12 had a deterrent effect, you wouldn't get these invasions 13 of privacy and I think that would stop the mischief. 14 The other side of this is if newspapers commit 15 libel, which they sometimes do, sometimes because they 16 make mistakes as we all do, there needs to be a simple, 17 quick, cheap method of resolving those disputes with 18 ordinary people that doesn't cost a fortune, that 19 doesn't enrich lawyers with 100 per cent success fees to 20 the point where newspapers just can't afford to fight 21 them even if they have a good case. So you need 22 a tribunal there that is going to resolve these things 23 sensibly without fleets of lawyers. If you could think 24 of a way of doing that, I'd be very grateful. 25 LORD JUSTICE LEVESON: Yes. 93 1 MR BARR: Looking at another question that arises from the 2 phrase "breed disrespect for the law", is there any 3 connection between the disrespect which you've described 4 emerging from the use of the law to thwart your 5 journalistic endeavours and willingness to use 6 borderline or illegal methods to obtain information 7 about institutions who may have all this legal muscle? 8 A. I think you're pushing this a bit far with me, really, 9 because the Guardian and I, we don't do this bad stuff 10 as a rule. These issues don't really -- aren't really 11 problems for us. Move the time, we're extremely well 12 behaved, and as I say, I've tried not to be holier than 13 thou about it and I've tried to think myself into the 14 forces that operate on all journalists in the tabloid 15 world as well, but you need to direct these questions 16 towards the kind of newspapers that are doing the bad 17 things, because they're special in the pressures on 18 them, the people who own them, the way they're 19 constructed. 20 LORD JUSTICE LEVESON: I think we probably shall. 21 MR BARR: Indeed. 22 Just a final question on the article. It's in the 23 paragraph which starts "Thomas says there is a public 24 interest defence available under the Data Protection 25 Act", which is presently right at the bottom of the 94 1 screen. Could that be raised up, please? You go on to 2 say: 3 "... and honest journalists have nothing to fear. 4 We shall have to see about that. Personally, I am 5 resigned to seeing the tabloid cockroaches doused with 6 a spot of legal insecticide." 7 LORD JUSTICE LEVESON: There's some journalistic-ese for 8 you. 9 A. Sorry. 10 LORD JUSTICE LEVESON: Well, you weren't writing it for me. 11 MR BARR: You may wish that word to be your evidence in 12 relation to this part of your article, but in case it 13 isn't, can I ask you: are you intending to communicate 14 a real disdain for the practices of tabloid journalism? 15 A. Yes, it's very upsetting because it does bring our trade 16 into disrepute, and because they fail to clean up their 17 act it makes it more difficult for people like me, 18 people on serious newspapers trying to do worthwhile 19 things. 20 Q. Why did you use the verb "resigned"? Because it 21 suggests a certain reluctance to see the law changed and 22 earlier today you've told us that you're in favour of 23 the imposition of custodial sentences for grave breaches 24 of Section 55. 25 A. Well, resigned because, as this Inquiry is obviously 95 1 well aware, there are threats to the freedom of the 2 press every time you introduce new regulations and the 3 words "statutory regulation" make me feel very 4 uncomfortable. It is not an accident that dictatorships 5 lock up journalists as one of the first things they do, 6 and very often, prior to locking them up, they set up 7 systems for licensing them and regulating them. So 8 naturally, I don't look forward to that prospect with 9 any enthusiasm. So as I say, I am resigned -- because 10 of the refusal of the tabloid media to clean up their 11 act, I'm resigned so something being done but I'm not 12 happy about it. 13 Q. That runs into some evidence which Mr Davies gave last 14 week when he said that he'd -- his thinking had evolved 15 to the point where he'd concluded that the press was 16 incapable of self-regulation. Is that a conclusion 17 which you now share? 18 A. I don't like this phrase "the press". The Guardian, for 19 I which work, as far as I'm concerned, is capable of 20 self-regulation and we do regulate ourselves quite well. 21 You know, we have all the code you've talked about. We 22 have a reader's editor who is independent, who people 23 can appeal to. We publish corrections in what we think 24 of as the main leader page of the paper. We do regulate 25 ourselves. So the bit of the press that I'm currently 96 1 working in, we do self-regulate it. I think the tabloid 2 press is incapable of self-regulation. 3 Q. The one technique that I don't think was mentioned in 4 the article we've just looked at was bribery. It's made 5 very clear in material from the Guardian that the 6 Guardian doesn't do that, but can I ask you this: do you 7 consider that the bribery of public officials to obtain 8 information is one of those matters which is completely 9 ethically off limits? 10 A. Yes, it's a crime. 11 Q. Moving now to the PCC. You've written about the PCC. 12 It may not be necessary to go to the article but could 13 you help us, from your understanding, from your 14 experience, as to, first of all, what are the strengths 15 of the PCC? 16 A. The only strength of the PCC is that it does circulate 17 newspapers with pleas that they should stop harassing 18 people. The other strength of the PCC, in its own eyes, 19 I guess, is that it works as a sort of political fixer, 20 managing to keep the government and the royal family off 21 the backs of the newspapers, especially when they've 22 gone too far. These are not very great strengths, in my 23 view. 24 Q. So we turn inevitably to your opinion about the 25 weaknesses of the PCC. What do you think these are? 97 1 A. If you think the PCC is a regulator, then you are wrong. 2 One is wrong. Insofar as it holds itself out to be 3 a regulator, it's a fraud and a bogus institution. It 4 doesn't regulate, it can't regulate and it doesn't want 5 to regulate. What it wants to do is fix, and keep the 6 government off the back of the popular papers. 7 Q. Can I take it from that that you would be in favour of 8 abolishing the PCC and coming up with some other 9 alternative solution? 10 A. Personally, I would be in favour of abolishing the PCC. 11 I say that because it's not necessarily the policy of my 12 paper corporately, which is a bit more optimistic than 13 I am about the possibility of reform. 14 Q. Finally, the question of the Internet and new media, 15 which are assuming increasing importance in many aspects 16 of our lives, but in particular in the propagation of 17 news and also the circumvention of court injunctions. 18 Is this an issue which, as a professor of journalism, 19 you've given any thought to from a regulatory point of 20 view? 21 A. The Internet makes it much more difficult to control and 22 censor what appears in British newspapers and we no 23 longer live in that world where you can control it. 24 I've watched this over the years. All of us who have 25 been around for a long time remember the Spycatcher 98 1 affair of 20 or so years ago, where the issue was how 2 slippery was a book, and the book which had been banned 3 in Britain was published by publishers in hardback form 4 in Australia and in Ireland. So in fact, you know, that 5 idea that information can slip and slide about between 6 jurisdictions isn't new. What is new, of course, in the 7 world of the Internet, is that everything happens 8 instantaneously, so it's much more slippery and any laws 9 do need to take that into account and they need to take 10 reality into account. We've had some situations, which 11 have been very unreal, in which things have been banned 12 that everybody is reading about on the Internet and we 13 have to find a way of being realistic. 14 Q. Just to tease out those potential solutions to those 15 broad problems, one method might be to regulate the 16 Internet content that comes into the jurisdiction, if 17 that were technically possible. Would that be 18 a solution that would find favour with you? 19 A. Well, that's a sort of Chinese solution. 20 Q. It might be described that way. 21 A. I don't think many people would be keen on that. It 22 would cast us not as an open society and it would -- it 23 wouldn't work, either. 24 Q. And if you can't use the Chinese solution, what might 25 you do? 99 1 A. Well, one thing you can do is take a deep breath and 2 learn to live with it. In criminal cases, judges have 3 now, I think, wearied of berating juries that they 4 should not look things up on the Internet. Instead, 5 they've taken a more realistic view. People will look 6 at things on the Internet and they tell juries how to 7 regard that or how to disregard that. So, you know, 8 I think it's better not to be King Canute in these 9 situations. 10 MR BARR: Thank you very much indeed -- I'm just about to be 11 passed a note. Subject to the note, those are the 12 questions I was going to ask you, save for the last 13 questions we save for all witnesses, which is if there's 14 anything else you would like to say to Lord Justice 15 Leveson about the future regulation of the press, now is 16 your opportunity. 17 A. Well, I think I've sounded off quite enough already. 18 MR BARR: Just a moment. I'm going to need some -- 19 LORD JUSTICE LEVESON: The real issue, while they're 20 resolving that, is to try to find the right place. What 21 you've identified for me is -- you say, "Well, for the 22 Guardian it's easy because we're there, but we don't 23 have the same pressures or the same interests by our 24 readers that other newspapers have", and therefore one 25 has to be careful about seeking to read across what 100 1 works for the Guardian into other papers because of the 2 different dynamics of the organisation. 3 A. (Nods head) 4 LORD JUSTICE LEVESON: The problem is going to be how you 5 read what is good about the approach to journalism that 6 you have spoken about into the context that other 7 journals, perfectly legitimately, operate within. 8 A. Yes. I mean, I always used to argue that liberty was 9 indivisible, and that if we lived in a country with free 10 speech, then we must let everybody do things, 11 particularly things we don't like. But as I said, I am 12 now resigned to the fact that something has to be done. 13 MR BARR: Just a couple more issues to explore. They're 14 based on the theme of circulation. The first is this: 15 I think you would readily accept that the circulation of 16 the tabloids is much greater than the circulation of the 17 broadsheets, including the paper that you work for. 18 A. Yes. 19 Q. Is there something to be said for the argument that 20 a newspaper that prints a certain amount of 21 tittle-tattle but also some serious stories is a very 22 effective way of mass education, mass communication on 23 serious issues? 24 A. What's the question, exactly? 25 Q. The question was: do you see a benefit in a newspaper 101 1 publishing a mixture of tittle-tattle and serious 2 stories in order to reach a wider audience with the 3 serious message? 4 A. Well, obviously yes. Nobody objects to people 5 publishing tittle-tattle if they want to and people 6 reading tittle-tattle if they want to. Why this Inquiry 7 has been set up, I guess, is because the tittle-tattle 8 is being got illegally, intrusively and sometimes 9 cruelly. 10 Q. So it's a question of method rather than content? 11 A. I think so, yes. 12 Q. And the second question is: the market for a purely 13 serious newspaper, which doesn't have any tittle-tattle 14 in it, is necessarily limited, isn't it? 15 A. It would be nice to think that more people would take 16 things more seriously than they do, but obviously, yes. 17 MR BARR: Thank you. 18 LORD JUSTICE LEVESON: The Lord Chief Justice in A v B said 19 the courts must not ignore the fact that if newspapers 20 do not publish information which the public are 21 interested in, there will be fewer newspapers published, 22 which will not be in the public interest. 23 A. The result of this scandal is we have had one fewer 24 newspaper published, and that wasn't because of -- that 25 was because of their own behaviour or misbehaviour. 102 1 LORD JUSTICE LEVESON: Yes. That's a salutary moment upon 2 which to end. 3 MR BARR: Mr Leigh, thank you very much. 4 LORD JUSTICE LEVESON: Mr Leigh, thank you very much indeed. 5 MR BARR: Sir, that concludes our evidence for the morning. 6 I understand that Mr Atkins is lined up to give evidence 7 at 2 o'clock. 8 LORD JUSTICE LEVESON: Thank you very much, Mr Barr. Right, 9 we'll resume at 2 o'clock. 10 (12.40 pm) 11 (The luncheon adjournment) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 103 http://www.levesoninquiry.org.uk/evidence/?day=2011-12-06
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-6-December-2011.txt 1 2 (2.00 pm) 3 LORD JUSTICE LEVESON: Yes. 4 MS PATRY HOSKINS: Good afternoon, sir. The only witness 5 this afternoon is Mr Chris Atkins. I'm just going to 6 ask him to come up and sit and make himself comfortable. 7 Sir, before he's sworn and just while he's making 8 himself comfortable, I just want to remind everybody 9 that the cameras are switched off for this session. 10 Mr Atkins will be here and there is picture and audio in 11 the hearing room and annex only. Nothing will be going 12 through to the website broadcasters until after we've 13 finished showing the clip of the film that we're going 14 to see. 15 LORD JUSTICE LEVESON: All right. It ought to be clear that 16 I have agreed the restriction to the publication of the 17 evidence of this witness, such that although it will be 18 carried audio, Mr Atkins will not be seen on screen. 19 MS PATRY HOSKINS: That's correct. 20 LORD JUSTICE LEVESON: I have done so for reasons which 21 I have accepted. 22 Sorry, yes, Mr Brown? 23 MR BROWN: Of course, I don't know what those good reasons 24 are and I am prepared to accept they were persuasive. 25 Could I just enquire whether your Lordship, when 1 1 exercising the discretion, took into account the fact 2 that Mr Atkins' image is easily obtainable on the 3 Internet by both a Google search and by going to the 4 Guardian Media website, where it's actually possible to 5 see, even, I think, now but certainly this morning when 6 I looked, a six-minute video clip of an interview with 7 Mr Atkins, full face, in which he promotes Starsuckers? 8 LORD JUSTICE LEVESON: Well -- 9 MR BROWN: I'm sorry, if I could just add: if the issue is 10 to do with his appearance, then, in my submission, that 11 needs to be borne in mind, that anyone can find 12 photographs and a video of his appearance on the 13 Internet. Indeed, it's just been done by the 14 Associated Newspapers team in court. 15 LORD JUSTICE LEVESON: It might be so, but the information 16 that has been passed to me suggests that there is good 17 reason why it would not be in the public interest that 18 his image be displayed as publicly as I have noticed 19 that images emerging from this Inquiry are being 20 displayed. I am not suggesting -- and it hasn't been 21 suggested to me -- that somebody could not in some way 22 find out what he looked like but the question is whether 23 what he looks like now could be linked to what he is 24 presently doing. 25 Mr Brown, I do not believe that making this order in 2 1 any sense impinges the free exchange of information 2 about the conduct of this Inquiry. Several witnesses 3 have requested different types of protection, the most 4 rigid being in relation to a witness who is known only 5 as HJK, whose visual appearance and voice were not 6 displayed, but his evidence was given in public and went 7 on to the website almost as soon as it had finished 8 after it had been checked to ensure that he had not 9 disclosed any information. 10 There is another witness who I know is going to come 11 who has sought similar types of protection because of 12 the work that he is generally involved in, and each one 13 of these decisions I have to consider with care, and 14 I do, and in my judgment the balance in this case is 15 clear. 16 MR BROWN: You've ruled, and all I wanted to be sure was 17 that you knew how widely available his recent image was. 18 LORD JUSTICE LEVESON: Yes. Mr Brown, you're right, but 19 that's not to say that had you said something different 20 to me, I might not have changed my mind. But nothing 21 you have said to me in my judgment impacts on the 22 particular reason for this particular request. In other 23 words, it wasn't a discourtesy that I didn't ask you 24 before I ruled. 25 Right. 3 1 MR CHRISTOPHER WALSH ATKINS (affirmed) 2 Questions from MS PATRY HOSKINS 3 MS PATRY HOSKINS: Thank you, Mr Atkins. Could you please 4 state your full name just for the record. 5 A. My full name is Christopher Walsh Atkins. 6 Q. You've provided a witness statement to this Inquiry 7 which you should find in the folder which we've prepared 8 for you, right in front of you. Can you confirm that 9 the contents of that witness statement are true to the 10 best of your knowledge and belief? 11 A. Very much so, yes. 12 LORD JUSTICE LEVESON: Let me just ask this question as 13 well. Your image is not being displayed for reasons 14 which are set out in a request made to the Inquiry by 15 you or on your behalf. Are those reasons true? 16 A. They are. 17 LORD JUSTICE LEVESON: Thank you very much. 18 MS PATRY HOSKINS: You've already also provided a number of 19 annexes or exhibits to your witness statement, and they 20 are essentially transcripts of either telephone calls or 21 meetings that you had with various journalists. We'll 22 turn to those in more detail later in your evidence, but 23 what I want to confirm is this: is the content of those 24 transcripts true to the best of your knowledge and 25 belief? 4 1 A. Yes. 2 Q. Are they full verbatim transcripts of the telephone 3 calls and meetings that you had with the journalists 4 involved? 5 A. Yes. 6 Q. Are they full and complete, ie does the transcript 7 record every word that passed between you and the 8 journalist on each of those occasions? 9 A. No. In the case of the two additional transcripts 10 supplied for the People and the Sunday Mirror, it's, 11 I think, approximately half of the meeting. 12 Q. Can you tell us why you haven't provided full 13 transcripts to the Inquiry? 14 A. There's a basic journalistic principle that you don't 15 put unedited journalistic material into the public 16 domain unless it's absolutely necessary. This is 17 something, I think, that the newspapers in question will 18 understand themselves, that they would never put 19 unedited journalistic material into the public domain. 20 It was actually the request of this Inquiry that I put 21 larger sections into the annexes, which I've decided to 22 do. There's nothing that's been left out that would in 23 any way change what is being alleged of the newspapers 24 and their behaviour. 25 Q. I think I'll leave that there. If anything else arises, 5 1 we'll deal with it then. 2 Can I ask you, pleasure, to turn to the first 3 page of your witness statement. I want to ask you very 4 briefly about your background. Paragraph 1, you confirm 5 that you've been working in the British film industry 6 for about 12 years. In your 20s, you produced a series 7 of independent feature films with Richard Jobson, 8 Sixteen Years of Alcohol in 2002, nominated for five 9 independent British film awards -- and you won two -- 10 a number of other films, including The Purifiers and 11 A Woman in Winter. You then went on to direct the 12 feature documentary Taking Liberties, about how the 13 Blair government eroded civil liberties under the guise 14 of the war against terror. That was released in 2007. 15 It was nominated for a film BAFTA in 2008 for best first 16 time writer/director and was screened on More4 in the 17 True Stories strand. Is that correct? 18 A. That is correct. I think they're called British 19 Independent Film Awards. I've just noticed that error. 20 Very upset about that. 21 Q. We're going to show an extract from the film Starsuckers 22 in just a moment. Let me ask you about now how you came 23 up with the idea, if I can. You refer to this at 24 paragraphs 2 and 3, but perhaps in your own words, if 25 you could just tell us why you decided to make the film 6 1 which ended up being Starsuckers in due course. 2 A. Over the course of making Taking Liberties, we were 3 looking at the reasons that various laws had been passed 4 that were eroding our basic rights and freedoms, and in 5 lots of different cases, we found that the tabloid 6 press -- and certainly the Murdoch press in 7 particular -- were playing a very active role in 8 increasing a climate of fear in amongst the British 9 public, and there were certain cases -- for example, the 10 raids in Forest Gate -- where the Sun and the 11 News of the World were just actively smearing the 12 suspects with information that presumably had been fed 13 to them by the police. You also saw, in the case of 14 Charles de Menezes, they effectively smeared a dead man. 15 There were all sorts of lies put into the media and 16 happily printed by various newspapers about Charles 17 de Menezes that turned out to be wrong. 18 We saw that no one was really correcting the press 19 on this. We saw that the rest of the media was very 20 unwilling to expose wrongdoing in the tabloids and 21 I also read Flat Earth News by Nick Davies and I saw 22 a wealth of material there, ample prima facie evidence 23 for all sorts of wrongdoing in the British press, 24 particularly in the tabloids, and no one else was 25 following this up, and I just thought it was a very kind 7 1 of fertile area to make a documentary about. 2 Q. You tell us at paragraph 4 that you made the film over 3 a period of two years and you released it in 2009; 4 that's correct? And you go on to tell us that the 5 chapter that's of most relevance to this Inquiry is the 6 section on the news media, and that lasts approximately 7 30 minutes. 8 A. Mm-hm. 9 Q. We'll come onto that. We will show that, but if I can 10 break it down this way. There seem to be four 11 particular areas that this part of the film covers: 12 paparazzi, and the way that they operate; secondly 13 fabricated, inaccurate stories; thirdly, kiss-and-tells, 14 we'll see in a moment, and then fourthly, what you 15 describe, I think, as criminality of the tabloids. This 16 is also referred to as the medical records sting. 17 A. Mm-hm. 18 Q. The film will be self-explanatory. Before we go on to 19 show that, I'd just like you to explain whether you 20 tried -- before exposing the tabloids in the way that 21 the film does, did you ever try to speak to any of the 22 journalists or any journalists on the record about their 23 working practices? 24 A. Absolutely. I mean, we tried extensively for well over 25 two years to try and get people to go on record and tell 8 1 us what really goes on in tabloid newsrooms, and I think 2 that the public at large had a right to know that, 3 because the public pay for news through their -- the 4 cover price and through absorbing advertising, but are 5 pretty much left in the dark as to the veracity of the 6 stories and the techniques used by the journalists to 7 acquire them, and we asked -- I couldn't give you an 8 exact figure, but I'd say definitely probably about two 9 dozen people to go on record. We put in formal requests 10 to all sorts of publications and were turned down. 11 I remember particularly the Express and Northern & Shell 12 said they had a blanket policy of no filming anywhere 13 the buildings ever, for example, and I believe the same 14 is true of Wapping. 15 And we're not the only people to have tried it. 16 I mean, many people over the years have tried to make 17 documents about what life's like -- you know, how the 18 tabloids operate, and they have a very strict sort of no 19 filming policy, and even to the extent where you -- very 20 rarely do you get journalists and editors and 21 proprietors even going on record. So you don't have the 22 editor of the Sun going on the Today programme to defend 23 themselves. It as kind of -- I think this has changed 24 now after the death of the News of the World, but there 25 was this kind of brick call wall, this sort of fortress 9 1 mentality, that you don't explain yourself, you don't go 2 on record, you don't discuss these things. 3 Q. In the light of that blanket refusal, what did you 4 decide to do? 5 A. We decided to use subterfuge, being the only sort of 6 option left available to us, and we think in each case 7 the subterfuge was proportionate to what it was we were 8 trying to expose, and we knew when we were making the 9 documentary, especially given the experience of my 10 previous documentary, Taking Liberties, that we 11 definitely wanted this to appear to television. So we 12 set ourselves a very high professional ethical standard 13 because we knew that it would have to go through an 14 Ofcom audit and -- we'll come to this later but the 15 regulations in Ofcom are sort of much, much higher than 16 they are for the press, so we knew it had to withstand 17 that, but we set about using various means of subterfuge 18 in the public interest to investigate how the tabloids 19 behaved. 20 Q. Did you have legal advice before -- 21 A. We had extensive legal advice throughout that continues 22 to this day, but yes, we took extensive legal advice. 23 Q. Would you like to explain a little bit about what you 24 were doing in each of those: paparazzi, fabricated 25 stories, kiss-and-tells and the medical records sting. 10 1 Would you like to give us a bit of an introduction or 2 should we just show the film? 3 A. I think just -- I'll quickly run through each one 4 because if you look at the paparazzi, there's 5 actually -- in the course of making a documentary like 6 this, you film over two years so you collect a vast 7 amount of material and only a fraction actually goes 8 into the film and it's my job as director to decide what 9 goes in and what goes out. There's various things -- if 10 I was making the film specifically for the Inquiry, 11 I might have made it differently, because there's lots 12 of material that we sort of found when the Inquiry was 13 announced we thought might be of interest. So for 14 example, with the paparazzi section, there was a guy 15 called Owen Beanie who ran -- I think he still does 16 run -- World Entitlement News Network and I got him to 17 speak very candidly about the Britney Spears situation, 18 which then was sort of exploding in Los Angeles. 19 I won't read it all out, but there's a section here in 20 the transcript which I think is worth reading about how 21 they actively misrepresent situations, and in Spears' 22 case was trying to make her out to appear suicidal and 23 were happily selling these images and the story attached 24 to all British news outlets. And not just the tabloids; 25 everyone was buying these images. 11 1 The point we make obviously when we look at Kev the 2 pap in Soho is that essentially the people were accusing 3 Pete Docherty of a crime which he wasn't. The bit that 4 got us the most attention is the fake stories, and 5 I think the fundamental question there is: will tabloid 6 journalists check facts? That was kind of our initial 7 decision when we went out to do that. 8 And kiss-and-tells -- again, it was something that 9 we had a huge amount of off-record information about, 10 how kiss-and-tells are actually engineered by the 11 tabloids and how they have this sort of 12 ever-replenishing army, shall we say, of kiss-and-tell 13 girls who essentially almost sort of -- not sent out, 14 but targets are suggested to them. So they'll know if 15 they sleep with a certain celebrity, they'll get 16 a certain amount of money, but we weren't able to put as 17 much of that in as we wanted because a lot of the 18 information wasn't particularly reliable because of the 19 nature of the sources. 20 But yes, then with the medical records sting, we 21 were essentially looking just to see if tabloid 22 journalists would act within the law when it came to 23 sourcing stories. So that's the set-up of what we're 24 about to see. 25 Q. We're just going to show a very short clip on 12 1 churnalism. Can you tell us what churnalism is? 2 A. I think the phrase was coined by Nick Davies, which is 3 this process by which a press release will be 4 regurgitated as news and how public relations has 5 managed to infiltrate all parts of the British news 6 media. Nick Davies and I think Aberystwyth University 7 did a study and they found that 54 per cent of news 8 articles in the national media are wholly or partly 9 sourced from public relations, and public relations is 10 essentially there to not serve the interests of the 11 readers and viewers; it's there to serve the interests 12 of the advertiser or the politician or whatever it is. 13 What happens is people write a press release and 14 they send it in to the newspaper and the newspaper cuts 15 and pastes that and puts it as a news article and 16 presents it to the public as news that's been sourced 17 and verified and everything else, when of course it's 18 nothing of the sort. 19 So the Media Standards Trust came up with this 20 rather clever idea for a website called churnalism.com, 21 where people could insert press releases and find out 22 which news articles had been cut and pasted from those 23 press releases. They wanted to publicise it and they 24 came to me and said, "Would you help? Would you do some 25 hoaxes?" I seem to have this reputation now as a sort 13 1 of hoaxer but I do actually do lots of other work. And 2 I thought it sounded like a great idea, so we basically 3 created a series of fake press releases and sent them 4 into news rooms to see which ones would get picked up. 5 That was earlier this year. 6 Q. I will ask you about that in more detail. 7 A. Okaying. 8 Q. If we just show the extract. 9 LORD JUSTICE LEVESON: Just before you do, you've said 10 something which was something of a tease. You said that 11 if you'd been making the film for the Inquiry, you might 12 have put some different material in than you did in fact 13 put in. 14 A. Mm. 15 LORD JUSTICE LEVESON: You said that some of it you'd 16 included in your statement, and the statement is there 17 for us to see. But do I gather from that that there is, 18 on some cutting room floor, a great deal of other 19 material which is relevant to the circumstances of the 20 Inquiry? 21 A. I like to think I've been working quite hard at this, so 22 I'd like to think that everything I think is relevant to 23 the Inquiry is in my statement and in the annexes as 24 well. There are some extensive annexes. The letter 25 from Bob Geldof, for example, runs to 6,000 words and 14 1 it's there. You can read it or not but -- 2 LORD JUSTICE LEVESON: Thank you very much. That's the 3 confirmation I wanted. 4 MS PATRY HOSKINS: Sir, once the two clips finish, 5 apparently we will need to rise for a very short time 6 while we ensure that the feed is back on; is that right? 7 LORD JUSTICE LEVESON: Because the film isn't going 8 anywhere. 9 MS PATRY HOSKINS: The film isn't going anywhere, but the 10 audio will need to the switched back on once the film 11 has been shown. 12 LORD JUSTICE LEVESON: Right. 13 MS PATRY HOSKINS: Don't ask me any difficult questions 14 about that, please. 15 (Starsuckers Media Section DVD is shown) 16 (Churnalism Short Film DVD is shown) 17 MS PATRY HOSKINS: Sir -- 18 LORD JUSTICE LEVESON: Do you want to put the audio back on? 19 MS PATRY HOSKINS: It will just take a few minutes, as 20 I understand it. 21 LORD JUSTICE LEVESON: All right. 22 (2.53 pm) 23 (A short break) 24 (3.00 pm) 25 MS PATRY HOSKINS: Thank you very much indeed, sir. I think 15 1 now the audio feed is back on. Hopefully no camera, 2 just audio. 3 LORD JUSTICE LEVESON: Right. 4 MS PATRY HOSKINS: Mr Atkins, come back to my questions. 5 I am going to deal briefly first with the paparazzi. 6 We've seen the excerpts from the film dealing with that. 7 I don't want to dwell on it for too long but if you look 8 at paragraph 10 of your statement, you explain you 9 approached Mr Beanie of WENN and he allowed you to 10 accompany some of his photographing when they were 11 following Britney Spears? 12 A. Yes. 13 Q. This was a time of great turmoil for Ms Spears, as we 14 know, and you say you saw repeated incidents of 15 paparazzi breaking the law, including life-threatening 16 dangerous driving, trespass, breaking and entering and 17 violence. Can I just assume for the moment that this 18 all took place in the United States? 19 A. Yes. 20 Q. We know that you followed Kevin Rush, the paparazzo, in 21 the UK, but did you ever witness any of that type of 22 behaviour in the UK? 23 A. I need to be careful what I say. Not as bad, but 24 certainly dangerous driving is an absolute given for 25 paparazzi. Violence, yes. It's a very tough world, 16 1 especially now that everyone has a mobile phone and can 2 take pictures. You see lots of people who aren't really 3 trained photographers kind of converging around 4 celebrities and celebrities themselves -- sorry, 5 paparazzi get very angry that members of the public are 6 stealing their income. But you also see it the other 7 way around. You see members of the public getting angry 8 at paparazzis for trailing the celebrities, so we did 9 see quite a bit of violence, but not anything as bad as 10 the Britney Spears situation. 11 Q. Before I turn away from the paparazzi part of your 12 witness statement, is there anything that you'd like to 13 say? 14 A. No, I think it's all covered in this. 15 Q. The second thing I want to ask you about is the fake 16 stories or the accuracy of tabloid journalism. This 17 part of your witness statement starts at paragraph 17. 18 We saw, when we saw the extract of the film, what you 19 were trying to do. A researcher from your team would 20 ring up one of the tabloids and give an entirely false 21 or partly false story and then you would wait to see 22 whether it would be picked up and then printed in that 23 particular tabloid the next day. Have I summarised that 24 accurately? 25 A. Yes, yeah, that's about right. The entirely false -- 17 1 what we did is we researched the celebrity's location, 2 so -- and that actually we did quite often from the 3 tabloid newspaper's website itself. So where they were 4 was correct and everything else was fictitious. 5 Q. So that the story would have a ring of truth? 6 A. Yeah, it would also be able to be sort of checked within 7 the realms of the information that was already in the 8 public domain. Although something that did happen while 9 we were doing it -- we didn't even run this story, but 10 I think the Metro managed to have Bono on both sides of 11 the Atlantic at the same time, so even outside of what 12 we were doing, we could see that that didn't always 13 stack up for the news desk. But yeah, we decided to 14 stick with location, and everything else above that was 15 fantastical. 16 Q. There are actually two paragraph 21s of your statement, 17 I have noticed. 18 A. I'm sorry about that. 19 Q. The second of the two, top of the second page there, you 20 say that you created six celebrity stories and you fed 21 them to the newspapers over a two-week period. 22 A. Yes. 23 Q. Were there any more or is that it? 24 A. Yeah, if you look at paragraph 23, I tried -- I think it 25 was actually a little later. I was actually annoyed 18 1 that my researcher had kind of had all the fun, so 2 I thought I'd try one and we tried a story about 3 Alan Sugar which wasn't run, but we subsequently 4 discovered that he was very litigious, so they -- 5 basically, tabloids don't like running stories about him 6 that isn't PR for The Apprentice, but yeah, of the six 7 that Jenn created and fed through through that two-week 8 period, they were all run by at least one tabloid. 9 Q. You tell us at the second of the paragraph 22s that your 10 biggest story was in the Sun, revealing that Sarah 11 Harding from Girls Aloud was secretly a fan of quantum 12 physics. We saw that obviously in the film as well. 13 You say it ran as a lead story in Gordon Smart's Bizarre 14 column and there was a fabricated quote: 15 "There's a lot more going on under that blonde 16 barnet than Sarah's given credit for. She's a smart 17 cookie and does read an awful lot." 18 You say that this quote didn't come from Jenn, your 19 researcher? 20 A. No. 21 Q. Showing that the Sun will add fictitious quotes into 22 their articles as well as not running basic checks. 23 Now, I've been asked to put to you that the Sun did in 24 fact check the story with her PR and it was the PR who 25 gave them that quote. Do you have anything to say? 19 1 A. I find it a staggering coincidence and remarkably 2 convenient, shall we say, for the Sun newspaper to come 3 up with that, and it's the first I've heard about it and 4 they've had two years to sort of make a mention of this. 5 And certainly at the time, when the Guardian put this 6 story to them, they didn't say that. In fact, they 7 actually said, "Look, look, it's true, it's in our 8 newspaper, and look, it's all over the Internet", 9 without realising that actually it was us and them that 10 had put it there, so yes, I find that a remarkable 11 coincidence that they've managed to come up with this. 12 Q. I hear some whispering. Just give me a moment. I don't 13 think I need to ask you anything else about that. 14 I'll ask you now about the Guy Ritchie story we saw 15 on the film, the juggling cutlery in Scott's restaurant. 16 A. Indeed. 17 Q. Again, I have been asked to put to you that most of that 18 story was in fact true. It was true that he'd been at 19 Scott's; is that right to the best of your recollection? 20 A. I mean, as to whether it's true or not, we read in the 21 Sun that he was at Scott's so -- we don't know whether 22 he was there or not, but yes, in our story we said that 23 Guy Ritchie had been seen at Scott's by Jenn, who was 24 pretending to be a waitress, yes. So that element we 25 believed was true. 20 1 Q. And it was true that he'd been drinking that evening? 2 A. People do drink in restaurants, yes, I'm sure. 3 Q. And it was also true that he had a black eye? 4 A. He didn't actually have a black eye. He had a very 5 slight mark on his cheek which I noticed in a photo, so 6 we thought how -- we wanted to riff on that and thought: 7 "Okay, where did he get it from?" Tabloid journalism is 8 always about continuing the narrative, so I think the 9 Sun had already reported that Guy Ritchie had been in 10 the restaurant, so they were obviously looking for 11 something to spin it along further. So we came up with 12 the story that he had been juggling cutlery, which of 13 course he hadn't. I don't know how you juggle cutlery. 14 It's a ridiculous thing to do. That bit we invented, 15 but I don't think he actually had a black eye; he just 16 had a very small mark on his cheek in the photograph. 17 Q. I have been asked to put to you that they did check the 18 story with a source and the source confirmed that he'd 19 been at Scott's, that he had been drinking and that he 20 did have a black eye and therefore did do just what you 21 would suggest they did, they did check their facts. 22 A. I think they checked their own website, which is exactly 23 the same thing we did, but the crucial -- people go out 24 every day, people drink every day, people go to 25 restaurants every day. People do not juggle cutlery and 21 1 stab themselves every day. So they didn't check what 2 I would say is the ridiculous, fantastical bit of the 3 story; they just checked where he was, and he had been 4 in a restaurant and he might have had a glass of wine. 5 All that was known from their own website. But the 6 absurd part of the story, they just wrote down and put 7 in their paper without checking. 8 Q. If we look at paragraph 24 of your statement, you tell 9 us what we can conclude from this evidence. You say: 10 "We concluded from this evidence that chequebook 11 journalism is structurally designed to produced 12 exaggerations and distortions. Celebrities are usually 13 fairly dull people, particularly footballers and actors, 14 who rarely do anything particularly newsworthy. 15 Conversely, the more unusual or funny the story, the 16 more valuable it becomes. Those selling celebrity 17 stories are obviously motivated by profit rather than 18 accuracy, and will be naturally inclined to exaggerate 19 and distort the truth in order to make more money from 20 the newspaper paying them." 21 Can I ask you this: these stories were all 22 published, by and large, in the gossip sections of 23 newspapers. Is there any problem, Mr Atkins, with the 24 reporting of stories as gossip if stories aren't 25 defamatory or malicious? 22 1 A. They were run in the celebrity pages. I don't know if 2 they're necessarily called the gossip pages. To my 3 mind, from what I remember of those stories, they were 4 presented to their readers as fact. There wasn't a "we 5 hear that". They were presented as an absolute sort of 6 direct piece of actuality. I suppose the question is 7 would you -- if Gordon Smart put under his byline or his 8 rather large photo in the Bizarre column "probably not 9 true", then we probably wouldn't be so concerned about 10 hypocrisy, but whenever these journalists go on record 11 and talk about their craft, they talk about it as though 12 it has like the same rigours of all the rest of their 13 journalism. 14 In fact, there was a quote from Dominic Mohan, who 15 is the editor of the Sun to this Inquiry -- he stood up 16 and made is speech and said: 17 "The way showbiz journalists operate is like a 18 political journalist in the lobby." 19 So he seems to be making a direct comparison, to my 20 mind, between the rigours of political reporting as he 21 is with his celebrity reporting. So they're presenting 22 these stories as fact. And also, celebrity stories 23 dominate these newspapers. I think it's no longer the 24 case that you have the gossip pages anymore. You buy 25 a copy of the Sun or the Star -- celebrity is 23 1 throughout, and this is what we were sort of looking at 2 in the film, is how it has kind of spread to all 3 different parts of the news media, taking these sort of 4 lax standards of fact-checking with them. 5 Q. I think I understand the point. Is your view then that 6 newspapers should be prevented completely from printing 7 gossip or rumour which they cannot check factually? 8 A. Gossip is -- I have several pages of notes on gossip. 9 Gossip and rumour can be very damaging, and it can ruin 10 lives, especially if it's not true, and I think we rely 11 on journalists to sift through gossip and rumour and 12 tell us what they think is true. If you're spending 13 50 pence or whatever on a newspaper, you're hoping that 14 many so of that money has gone towards someone doing 15 some basic checks. If you want wild, unsubstantiated 16 rumour, we have Twitter, and I think journalism is all 17 about verification. It's an absolute bedrock of what 18 I think most people in the country think journalists do 19 is to check and verify and see if things stand up. And 20 if you put a rumour in a newspaper, you're giving it 21 credibility just by printing it. 22 Q. But isn't the great British public able to decide for 23 itself what they think might be rumour and what is real 24 news? 25 A. But if we said, "Chris Atkins denied rumours that he's 24 1 having an affair", straight away you've put the concept 2 of me having an affair into the public, and 3 a proportion, maybe lots of the public, will now think 4 that I'm having an affair just because a newspaper has 5 printed that. And it's a very kind of underhand way, 6 I think, often of slipping stories out into the public 7 that they can't stand up, and they can't stand up 8 because they might not be true. So let's just call it 9 at that rumour, some are saying. Well, how do you 10 define rumour? Is it four people in the newsroom reckon 11 it might be true? "Let's call a rumour, let's whack it 12 in." That's someone's life ruined. 13 And I find that sometimes rumour is used as a cover 14 for getting, as I say, stories out there that don't have 15 any factual backing. I think some of the reporting in 16 the Chris Jefferies case, a lot of that was rumour and 17 insinuation. That demolished a man's life. It's 18 a smear campaign. So I think rumour, one has to be 19 extraordinarily careful with it and I think newspapers 20 should be very careful with using rumour, but often 21 they're not. 22 Q. One of the solutions that you suggest in your witness 23 statement is that what they should have done in each 24 case is to check with the respective celebrities PR at 25 the very least, but then you go on complain later on in 25 1 the film that PRs are guilty of essentially mass 2 deception. So how do you match the two? 3 A. I don't necessarily -- it doesn't necessarily have to be 4 with the PR. It could be with an agent, and even 5 though, yes, PRs are inherently unreliable, at least 6 that's a check. At least a phone call has gone through 7 and you would hope that the people that they're checking 8 it with are acting in the best interests of the 9 celebrities, maybe even call their lawyer, maybe even 10 call them. But the fact that no checks were made, even, 11 as I say, to a PR, it shows that these newsrooms are 12 just -- as I said, we called them up, we gave them 13 fantastical lies, and they wrote them down and put them 14 in their newspaper the next day, without anyone calling 15 up and asking anyone whether or not it might be true. 16 So yes, I'd be the first person to say that PRs are 17 sometimes unreliable as a source of truth, but in that 18 instance they're probably better than nothing. What we 19 got were nothing. 20 Q. Some might say that the stories that you planted were 21 harmless, didn't hurt anybody's feelings, just a bit of 22 gossip, the public are able to tell the difference 23 between a bit of gossip and some real news. No? Any 24 thoughts on that? 25 A. I think one of the problems that we have is how these 26 1 news standards spread throughout the newspapers and 2 I think they spread with the journalists who practice 3 them. So you have -- when journalists start on tabloid 4 newspapers -- and again Richard Peppiatt has helped 5 confirm this. They often start to the celebrity desks. 6 It's often one of the first jobs they have. If they 7 thrive there, and if they thrive there by not checking 8 facts, and in some cases even fabricated details -- the 9 Daily Star added to our Amy Winehouse story that 10 a friend of Amy's ran in and punched her in the head to 11 put out the blaze, and that was just -- that didn't come 12 from us and I don't think that was given by a PR. So 13 they'll fabricate quotes, they won't check facts, 14 they'll add their own details to it, and if they're 15 successful on the celebrity desks in this regard, their 16 behaviour isn't punished; it's rewarded. And quite 17 often they get promoted to other parts of the newspaper 18 where they have far more control and impact, and in the 19 film we gave three examples: you know, Piers Morgan, 20 very successful celebrity journalist, went on to run the 21 Mirror and then had to leave his job rather abruptly 22 because they didn't properly check their facts over some 23 photos of British soldiers apparently abusing Iraqi 24 prisoners, which of course was nonsense. 25 Then you look at Andy Coulson. Well, he was a very 27 1 successful gossip -- celebrity journalist and I don't 2 need to tell anyone in this Inquiry where he ended up. 3 And same with Dominic Mohan who is now running the Sun. 4 So I think that people learn their journalistic craft on 5 the celebrity desk and then, if they're successful, very 6 quickly move on to other areas. Richard Peppiatt was 7 telling me that someone would be writing -- at the Daily 8 Star, one day they would be writing a sorry about 9 Bubbles giving evidence at the Michael Jackson trial, 10 and the next day they would be writing a story about 11 global warming. And it's the same journalists with the 12 same ethical values covering both. 13 Q. Why do so many tabloid editors come from the showbiz 14 desks? 15 A. Celebrity stories are massively commercially successful. 16 They are the single most successful stories in 17 newspapers. They boost circulation, they increase 18 clicks on websites. So if you are adept at handling 19 showbiz stories, you will rise up the career ladder at 20 a tabloid newspaper. Gordon Smart has just been 21 apparently voted -- recently, about a year ago, after 22 Starsuckers, was voted the number one celebrity 23 journalist of the year, and second was Clemmie Moodie at 24 the Mirror, and both of them ran our stories. So you 25 can see that if they just stuck to printing what was 28 1 rigorously factually true, it would be really dull news 2 articles, so they want to add the spice and the sparkle 3 and the extra fluff around the edges to make the stories 4 more appealing. Those who stick to the facts aren't 5 going to succeed. 6 Q. Let me move on to churnalism. Again, I'll do this 7 briefly because it's extensively covered in the clips 8 that we've seen. We saw the extract about the chastity 9 garter and you explained in the film, I think, that it 10 was published on the Mail Online and in the Daily Star, 11 that story. That's right, isn't it? 12 A. Mm. 13 Q. The Daily Mail wanted me to point out -- and I think 14 this was confirmed by your clip, wasn't it -- that the 15 story was pitched originally to the Daily Mail news 16 desk, it was rejected, but then once you had fed it 17 through to the news agency, they then picked it up and 18 it was then that it was published online; is that right? 19 A. Absolutely true. I make that point to show how 20 important news agencies are in this whole machine. It's 21 the same with PR. I don't think you can just say, "Oh, 22 it's a newspaper, let's look at the newspaper." They 23 have these other things sitting behind them and one much 24 them is news agencies. There's quite a lot of local 25 news agencies in Britain that basically feed stories 29 1 into the national press, and that's what we found, this 2 agency called Caters News Agency, which, as far as I can 3 understand, is just a couple of people sitting in an 4 office in Birmingham. 5 After the Mail said no to this story, for whatever 6 reason, we sent exactly the same story to Caters News 7 Agency, and within minutes they'd put it on a newswire 8 and sent it back down to the Mail, who then -- word for 9 word, identical story -- then said, "Oh, it's on a news 10 wire, it must be true", and then copied and pasted it 11 onto their news site. This all happened extremely 12 quickly, within hours. 13 Q. That begs the question: did the news agency take any 14 time to check its facts? 15 A. Absolutely not, no. They said, "Great, let's run it", 16 I think. I might even have the emails. 17 Q. I've been asked to ask you whether you're aware that the 18 agency spoke to the alleged husband and wife team who 19 had come up with this invention of the chastity garter. 20 Is that right? 21 A. Absolutely not, no. It was a handful of words email. 22 I can dig up the correspondence if you want, but it was 23 like: "Great, we'll whack it on the wires." It was 24 something like that. I think after the event, after 25 they saw how successful the story was -- because it was 30 1 the most-read article on the Daily Mail's website for 2 quite some time -- I think the news agency, sniffing 3 some money, came back to us and said, "Could we do an 4 interview? Could we speak to the husband and wife as 5 a follow-up article, maybe sell it for the women's 6 magazines?" And we looked at this and thought while it 7 might be quite good fun, it wasn't actually in the 8 interests of what we were trying to prove with the hoax, 9 so we said no. I think they're probably getting 10 confused with that. But no, at the time we sent it to 11 Caters, they copy and pasted it into the wire and sent 12 it to London, all in a matter of hours, with no checks. 13 Q. Are you saying, Mr Atkins, that newspapers should never 14 use copy provided by PR? Isn't that unnecessarily 15 pedantic in your view? 16 A. I think if a news article is based, more than half the 17 news article, on a press release, I think the public has 18 a right to know that. Again, the public is trusting 19 journalists to give them an objective look at what is 20 true and what's not, and if they're just copying and 21 pasting huge chunks from a press release in five 22 minutes, that's -- they're failing in their job. 23 You have advertorials in newspapers and you have 24 a full page that is sort of promoting Coke or whatever, 25 and because it's sort of advertising looking a bit like 31 1 a news article, you have to put "advertorial" on the 2 top. My understanding is that regulation is quite old, 3 and I think the same thing should apply to PR. PR, 4 press release, is just a very good way of circumventing 5 that rule. So what you'll do is you'll get a newspaper 6 article, you'll read it, and think, "This journalist 7 really thinks that Tesco is an amazing supermarket", or 8 whatever it is, but the public won't know that all of 9 that story, all that copy, all those photos, have 10 actually been provided by the supermarket. 11 So I think 50 per cent is a good arbitrary tipping 12 point. When it goes over there, it's the public's right 13 to know. It doesn't say you can't run the article. It 14 just means you just have to be honest about its source. 15 LORD JUSTICE LEVESON: Is it a question of labelling? In 16 other words, for this stuff, you know: "The material 17 provided by the manufacturer tells us that..." 18 A. Yeah. 19 LORD JUSTICE LEVESON: For the celebrity stuff, it is: 20 "We've received an anonymous tip-off that ..." I'm not 21 suggesting the words, but is it more than labelling? 22 A. No, I think, as you said, the public are smart. I don't 23 want to denigrate the public too much, but I read 24 newspaper articles that I know are sourced from PR 25 because I can see it, I spent so long looking at it. 32 1 I still read the article because I'm actually interested 2 in this product or this film or this service or this 3 government press release or whatever. I'm still 4 interested. It's just I can make a more accurate 5 assessment of how much I take it on board, knowing its 6 source, so I think absolutely with press releases, just 7 say advertorial or churn or from Bell Pottinger or 8 whatever it is, and then the public can make their own 9 mind up. 10 MS PATRY HOSKINS: All right. I'm going to turn on to the 11 medical records sting, if I can. Let's start with the 12 basis for it. It's paragraph 30 onwards of your 13 statement in case you want to find where we are. 14 A. Yes. 15 Q. You say at paragraph 31 that what you wanted to do was 16 to test the Sunday tabloids to see if their journalists 17 were willing to break the law and the PCC code to obtain 18 private information about celebrities that was not in 19 the public interest. 20 A. Mm. 21 Q. Just to make it clear, you did not have any real 22 confidential information to sell, did you? 23 A. None whatsoever, no. It was all fictitious. 24 Q. You explain that you would pose as an intermediary who 25 was selling the details of celebrities' plastic surgery 33 1 operations but was ignorant of the rules of modern 2 tabloid reporting. You would claim that you were the 3 ex-boyfriend of a nurse who worked in a plastic surgery 4 clinic who had evidence of high profile celebrities 5 having operations. You say: 6 "Given the intrusive nature of the stories, the 7 newspapers would be likely to need to obtain proof that 8 the stories were true in order to print them. Any such 9 proof would inherently involve a breach of the Data 10 Protection Act, which prohibits the sale of medical 11 records. Even harvesting information to research the 12 stories would ostensibly involve a breach of the DPA." 13 Did you take legal advice to that effect before you 14 carried out -- 15 A. Yes. 16 Q. You go on to say: 17 "The DPA does have a general opt out for journalists 18 when the information is in the public interest ... so we 19 deliberately created stories that, while of interest to 20 tabloid readership, could never be classed as being in 21 the public interest. The PCC code also makes it clear 22 that health issues are extremely sensitive." 23 And then you set out the relevant parts of the PCC 24 code. Again, did you get advice on whether or not this 25 sting or purchasing information that you were going to 34 1 offer would be in breach of the PCC code? 2 A. Yes. There was actually quotes and I came back to this 3 before, but Paul Dacre, in his capacity of, at the time, 4 the chair of the Editors' Code of Ethics on the PCC, 5 went before Parliament and discussed -- 6 Q. Paragraph 34. 7 A. Yes, 34, 35 -- in which this was discussed and he 8 said -- Alan Keen, who I think was an MP: 9 "Do you think the public is entitled to any privacy. 10 You have explained one or two examples. Medical 11 records." 12 Mr Dacre: 13 "Absolute privacy guaranteed. It's part of the PCC 14 code. No question." 15 Alan Keen: 16 "Medical records?" 17 Mr Dacre: 18 "Absolutely." 19 Q. Lets turn to what you did. At paragraph 36 you explain 20 this succinctly. To initiate the investigation, 21 20 March 2009, you called the news desks of The Sunday 22 Express, The News of the World, The Sunday Mirror and 23 The People. We've obviously seen extracts of the 24 telephone calls and of the meetings with various 25 journalists in the film, so we can probably take this 35 1 quite briefly. I just need to ask you a few questions 2 and I have been asked to slow down again, now twice. 3 Let's start with the Sunday Express if we can. This 4 is important that we do so. In a nutshell, what did the 5 Sunday Express say when you indicated that you might 6 have confidential medical records for sale? 7 A. They categorically said that this was not something they 8 could in any way be involved in, and they didn't even 9 want to hear what the details were, which I thought was 10 quite comforting, actually, to have the Sunday Express 11 say this. But I will just read a quick line from the 12 phone call, because it sums it all up: 13 "From our point of view, there would be three really 14 difficult areas: a privacy side of it -- and there's the 15 privacy side with the fact that it's a health issue, 16 which makes it even more private from her point of view. 17 They would also be regarded as a sort of breach of 18 confidentiality as well, a legal minefield." 19 And pretty much put the phone down. 20 Q. Good. Let's turn to The People then, if we can. You 21 spoke to a journalist called Sarah Jellema at The 22 People; is that right? 23 A. First of all we spoke to a news editor, Tom Carling, who 24 I understand is still news editor of The People, and he 25 listened to our story first. This is actually in an 36 1 annex which I supplied to the Inquiry. We explained to 2 him -- I explained to him first what the situation was, 3 and he weighed this up and then put us through to Sarah. 4 Q. Do you want to look at that extract, that transcript of 5 the telephone call? 6 A. Not particularly. I mean, it's just we told him what we 7 were about and he said, "Great", and put us through to 8 the journalist. 9 Q. You then spoke with Ms Jellema. Can I ask you to turn, 10 please, to tab 2 in the bundle. For the technician, 11 it's 49038. If we look at the top half of the 12 page first, you'll see the conversation that you had 13 with Mr Carling. 14 A. Mm-hm. 15 Q. And you see then, about three-quarters of the way down 16 the page, a section that starts: 17 "Well, we're definitely interested in these sort of 18 stories. Obviously, we've got to be very careful 19 with -- you know, there's a new wave of privacy laws, 20 but you know, lots of people in the public eye are quite 21 open about the work that they've done, you know, stuff 22 we can elaborate on, and it does entirely depend on who 23 the individuals are." 24 Anything wrong with that? 25 A. I think what he's opening the door to, as I was going to 37 1 come to in a second, is this concept of harvesting. So 2 what he's saying, I think, is to sort of give himself 3 some kind of cover, to say, "Look, there are a new wave 4 of privacy laws" -- well, we all know that -- "and we do 5 need to be careful." Absolutely fine. But he then 6 passes me on to a colleague, who is then instructed to 7 come and meet me and to harvest as much private medical 8 information as they possibly can, so I do -- it's a nice 9 little touch to say, "Oh, got to be careful", but then 10 proceed to action an investigation by his newspaper 11 that, as far as we're concerned, is definitely breaking 12 the rules. 13 Q. You were then passed on to Sarah Jellema on the 14 telephone. I'm going to skip to the fourth page of that 15 exhibit, halfway down the page, where she says: 16 "Yeah, definitely. It sounds like it would be right 17 up our street, to be honest with you, so whereabouts do 18 you live?" 19 And then you arrange to meet her. 20 A. Yeah. 21 Q. Out of fairness to Ms Jellema, is there anything else in 22 that extract from the telephone conversation that you'd 23 like to draw the Inquiry's attention to? 24 A. Not particularly. I think the telephone is call is in 25 its entirety, so it's all there. She's working under 38 1 the supervision of her news desk, it seems to me, so 2 I think that in fairness to her, she was not a rogue 3 reporter in this instance. 4 Q. You then arrange to meet up with her and you do on 5 26 March 2009. The transcript is at tab 4 in its 6 entirety, but it's summarised at paragraph 71 onwards of 7 your statement. 8 A. Mm-hm. 9 Q. It's probably easier if we go through the summary. 10 A. Mm-hm. 11 Q. I'm sure if anyone wants me to add anything, we can come 12 back to it. Could I ask you to draw out for the Inquiry 13 the particular passages that you think are relevant to 14 this issue? 15 A. Sure. Well, her opening remarks: 16 "Obviously, it's very legally dodgy." 17 Which I think is what the Guardian used in its 18 headline when it broke the story. 19 "I was batting around with my news editor who you 20 spoke to before, Tom ..." 21 Which indicates he's sort of across this story. 22 "... sort of ideas of how you might do it, ideas of 23 maybe a spread of silhouettes or people hinting who 24 might have done it." 25 So that, to me, would indicate that they would take 39 1 the information and do a kind of "have they, haven't 2 they?" silhouetted story to shield where the information 3 had come from. So even though they would be in 4 possession of sort of illicit data-protected material, 5 they wouldn't be letting the readership know that's what 6 the source was. 7 And then quite early on: 8 "Obviously as well, the first thing we want to know 9 is what back-up we have. There will be something 10 written or whatever, just something for the file. I'm 11 sure they'll want something, I'm not sure what. Some 12 kind of documentary proof, yes." 13 Paragraph 75 I found interesting. It's not 14 specifically relevant to the breach of the DPA and so 15 forth, but I thought it was quite interesting about how 16 they operate. After I gave them the -- I said a member 17 of Girls Aloud had had a boob job, but I wouldn't tell 18 her which one, so she was obviously desperate to know 19 which one. She said: 20 "Even if it wasn't Cheryl [Cheryl being the most 21 famous one] you could do a teaser on the front and 22 people wouldn't know until they got inside. So you 23 wouldn't even put a name on the front. You'd go 'Girls 24 Aloud'. But if it wasn't, they'd do a teaser and 25 everyone would be like: 'Oh, is it Cheryl?'" 40 1 Which, to me, I think, indicated that they were 2 essentially looking at tricking the readership, so even 3 if it turned out -- 4 Q. By doing what? 5 A. By hinting that it's Cheryl, by knowing the readership 6 will think that it's Cheryl and they buy the paper from 7 the front page. They buy the paper and they get home 8 and it's not Cheryl, by which time they've already spent 9 their money. 10 So just a little bit further on, paragraph 77: 11 "I spoke to them [presumably the news desk] before 12 I came down. They wanted names." 13 This, I think, comes to the heart of this, and also 14 what we were talking about when we come to the 15 News of the World journalists. This idea of collating 16 the information. So even without them printing it, by 17 taking the information wholesale from us and taking it 18 back to their news desk where, presumably, they store it 19 and keep it on file, they are breaching the Data 20 Protection Act, just by me verbally imparting the 21 information, and those breaches do not have any public 22 interest and from the data protection point of view, 23 they're trying to become the data controller. They're 24 trying to essentially have a pipeline from our clinic to 25 their news desk, so anyone coming into that clinic with 41 1 any kind of surgery, they want that information, and 2 they later decide whether or not -- which completely 3 goes against the point of the Data Protection Act. 4 Q. And the comments on the PCC? 5 A. I think her comments on the PCC speak for themselves, 6 really. That's why we intercut them in the way we did 7 within the film. I think we've just got honesty, 8 really, about how journalists view the Press Complaints 9 Commission. Actually, right down at the bottom here, 10 this idea that: 11 "They will tend to take more risks if they think 12 a PCC will be involved." 13 So obviously they have these two types of potential 14 restrictions, and one of them is a libel case or privacy 15 in the courts, and another one is the PCC. If they 16 think it's just the PCC, they'll push it further. So 17 yes, I think her comments on the PCC speak for 18 themselves. 19 Q. Have you seen Ms Jellema's statement to the Inquiry? 20 A. Very briefly. You gave it to me just before I came in, 21 so I haven't actually -- 22 Q. She says any views expressed about the PCC were solely 23 her own views and not those of the newspaper for which 24 she was working at the time and may not be 25 representative of every journalist's views. What do you 42 1 say to that? 2 A. It sounds like what journalists put in their Twitter 3 bios, doesn't it? "All views are mine and not that of 4 my newspaper". As I say, it's just a rare glimpse of 5 honesty, of how journalists view their regulator. I'm 6 not saying every single journalist believes that, but as 7 I say, where we were unable to get anyone to go on 8 record, then these comments, I think, are still quite 9 valuable. 10 Q. You say at paragraph 79 that the following week 11 Ms Jellema called you, left a voicemail? 12 A. Yeah. 13 Q. "The message said that they were very keen to do the 14 stories, she had consulted with her news desk and legal 15 team and they had asked her to ask us to provide a copy 16 of the appointments book of the surgery or similar to 17 prove that celebrities had been in and what they were 18 for." 19 Again, you say you'd seen Ms Jellema's statement to 20 the Inquiry. 21 A. Yeah -- you'll -- I don't -- 22 Q. She says she returned to the office, reported back to 23 the news desk and was told that The People would not 24 pursue this any further. She then called you and left 25 a voicemail message to that effect. What's your 43 1 recollection of what happened? 2 A. As is in my witness statement, she called more than once 3 and she was very keen to run the story. I actually felt 4 a bit sorry for her because obviously I'd just basically 5 ceased contact and she was obviously under pressure 6 to -- it seemed, to be under pressure to make all this 7 happen. And, yes, as I say, we made a specific note at 8 the time, and it was discussed with my producers, that 9 one of the messages said: 10 "Can you get us a copy of the appointments book or 11 similar?" 12 And I think, therefore, that takes this beyond the 13 excuse that some people have maybe presented to this 14 investigation, which is: you never knew that they were 15 going to run the stories so they could have just been 16 mouthing off. I think this indicates they were very 17 keen. Again, it's not Sarah acting as a rogue agent. 18 It's with the authorisation of her news desk and legal 19 team. 20 Q. Have you kept a copy of any of these voicemail messages? 21 A. No, because it was a voicemail phone. It was a 'pay as 22 you go', so we didn't. 23 Q. Can we turn very briefly to the Sunday Mirror and the 24 meeting with Nick Owens. Again, this is summarised in 25 your witness statement, paragraph 45 onwards, and the 44 1 reason why I ask you about this is you say later on that 2 you believe Nick Owens' behaviour to be in the most 3 blatantly in breach of the rules. So as we're going 4 through, perhaps you could tell us why you take that 5 view. 6 A. Certainly. I think this -- they all sort of cross the 7 line to different degrees, and I'd be -- I think it's 8 important to make that point, and I think with Owens, as 9 he says right at the start, he has the eye and the ear 10 of the news editor and the editor as well. I think he 11 seemed to be a much more senior journalist in the 12 organisation than maybe Sarah was in hers. 13 Paragraph 47, I found this very interesting. When 14 we were talking about the confidentiality issue and the 15 source potentially losing her job for giving me 16 information, Nick Owens said: 17 "I understand that. I cover a lot of health 18 stories, and I work with a lot of health 19 professionals ... I work with people in that area as 20 well." 21 Now, we come to paragraph 48, and this is where -- 22 we'll come to the public interest in a minute, but this, 23 I think, sets that up in terms of how tabloid 24 journalists view the subject of public interest, because 25 they're talking about potentially reporting a story 45 1 that's in the public interest and saying: 2 "There isn't a public interest in reporting that 3 somebody has had a gastric band operation unless they 4 are a massively big name, then you might make 5 a decision." 6 You know, he comes on to say: 7 "It's always up to the editor. Put it in front of 8 the editor and she will make the decision." 9 He steers the conversation onto documentation, 10 paragraph 50: 11 "Is there a document somewhere, piece of paper? Is 12 there an email that would prove that she had it?" 13 Then paragraph -- I didn't notice -- sorry, actually 14 paragraph 51, there is quite a curious phrase. I'd like 15 to note what he has to say about this. He says: 16 "It's not like the NHS, obviously, where you phone 17 up and they tell you about an operation that has 18 happened on such a such a date." 19 I don't know whether this is something they would do 20 at the NHS, but I noted that earlier. 21 So we're discussing about the process, about how he 22 might have to go to his news desk and they might then 23 come back and ask for documentation and he suggests 24 a way around this, so: 25 "Have you got anything available now? Do it in 46 1 one." 2 So he's essentially asking us to go away and start 3 collating information right now and get as much as 4 possible. 5 Coming on to paragraph 56, we're talking about Rhys 6 Ifans, who -- we had, again, fabricated a story that he 7 had had a tummy tuck: 8 "I think Rhys Ifans is funny because -- you know, 9 Rhys Ifans wanting a tummy tick is a very funny story 10 but then again, is it justified in the public interest? 11 That's the problem. We could get away with Gemma [ie 12 Gemma Arterton]. That's massive, good story." 13 But then he revisits Rhys Ifans, after thinking 14 about it: 15 "Having a tummy tuck to get rid of Rhys Ifans' beer 16 belly, isn't it -- it's a fucking good story. Of all of 17 them, you could do Rhys. You could probably do Rhys 18 Sunday. Rhys you could probably get away with because 19 it's so funny." 20 Then just the last bit of paragraph 59: 21 "The thing to say to your friend is what can you 22 get, because the more the better, really." 23 This is in the context of medical documentation. 24 "If she can, get a document on everything." 25 That's why I think his behaviour was the worst. 47 1 Q. You then go on to say that he went on to write an 2 article about Chris Jefferies which was defamatory. You 3 don't enclose that article. What I've done is I have 4 printed out one of the exhibits to Mr Jefferies' witness 5 statement. It doesn't need to -- in fact, it probably 6 shouldn't be shown on the screen, but for the other core 7 participants in the room, it's document 31991, and I've 8 caused it to be handed out this afternoon. Is that the 9 article you were referring to? 10 A. Yeah. I mean, I think -- I don't know what we expected, 11 actually, when we went to this film, when the news of 12 this investigation was made public, but there was no 13 comment from the Mirror Group about the behaviour of the 14 journalists at The People or the Sunday Mirror, and the 15 PCC did nothing apart from occasionally write things 16 about the film, and the journalist, Nick Owens, stayed 17 in his job and he's there, he still works for them, as 18 I speak. And I just thought because I was making a film 19 about Chris Jefferies and I was researching articles on 20 that and it struck me that Nick Owens wrote an article 21 about Chris Jefferies, about him being obsessed by 22 poetry and how this basically indicated that he might be 23 a murderer, and it just struck me that maybe if the 24 Sunday Mirror had done their job and disciplined him or 25 if the PCC had investigated and he had lost his job, 48 1 basically, for trying to buy medical records, then maybe 2 this article wouldn't have been written, and this 3 article was subsequently found to be very libellous and 4 defamatory and the Sunday Mirror had to pay damages. So 5 I think it was just a general point that if they'd 6 disciplined him and moved him on, then maybe this 7 article wouldn't have been written. But as I say, 8 no one really did anything as a result of the film. 9 Q. Can I touch on the meeting that you had with 10 News of the World? 11 A. Yes. 12 Q. I think we can agree that Ms Numar(?) was much more 13 cautious than the others? 14 A. Definitely. 15 Q. Can we park her on that basis. 16 A. Please do. Sorry, to return to the point I made about 17 still breaking the rules because she was trying to set 18 News of the World up as a data controller. So she was 19 still asking me to impart verbal information to her that 20 had no public interest so they could store it, and this 21 is obviously in breach of the Data Protection Act. But 22 I completely agree; she was much more cautious than the 23 other two. 24 Q. Can we agree, though, a number of things about this 25 medical records sting. All of the newspapers you spoke 49 1 to did recognise that there were difficult 2 confidentiality issues involved? 3 A. Yeah. The confidentiality -- actually, I had a look for 4 that word. Nick Owens talked about confidentiality 5 issues, but mainly as something to be overcome, to be 6 sidestepped and basically something that needed to be 7 overcome, and he didn't think there would be a problem 8 overcoming them, and actually confidentiality issues 9 were mainly talked about -- in fact, I think wholly 10 talked about in the context of protecting source, which 11 to be completely fair to them, they did all say that we 12 would go to extreme lengths to protect the source. 13 However, I also find that quite self-serving, because 14 they'd also want to protect the fact that it came from 15 a breach of the DPA, which is why they were talking 16 about hinting that the story had come from somewhere 17 else. 18 Q. Can we also agree that none of the newspapers committed 19 to publishing any of the information based on medical 20 records? 21 A. No, we didn't want to go anywhere sort of near there. 22 We couldn't jeopardise them actually printing something, 23 because this isn't about Sarah Harding being secretly 24 into quantum physics. This is obviously a story about 25 plastic surgery. So we went, I think, as far as 50 1 ethically we could and should have done to prove that 2 had the stories been true and had we had documentation, 3 they would have printed them, and I think that's fair to 4 say in the case of The People and the Sunday Mirror. 5 But no, of course they didn't actually do that and that 6 would have been grossly irresponsible for us to have 7 even risked that. 8 Q. I'm going to come on to the public interest in just 9 a moment, but let me touch on one thing. A number of 10 journalists seem to think it might be okay to publish 11 the story if the story was funny. 12 A. Mm. 13 Q. Does that make it better, in your view? 14 A. No. Whether a story is funny or not is -- I don't think 15 should have any bearing -- I'm not a lawyer, but I don't 16 think it has any bearing in law of whether it's 17 a defence -- 18 LORD JUSTICE LEVESON: I don't think it's defence. That 19 wasn't Ms Patry Hoskins' -- 20 A. Sorry. 21 LORD JUSTICE LEVESON: I don't think it's a question of 22 a defence. It's a question of whether you think it 23 makes it different. 24 A. No, certainly not in terms of something about someone's 25 private life. 51 1 MS PATRY HOSKINS: So public interest. In the sting, the 2 journalists you spoke to did state that records could be 3 used to publish a story if it was in the public 4 interest. A number of them do actually say that in 5 terms. But in your view, would any of the stories that 6 you were describing -- so Gemma Arterton's gastric band, 7 one of Girls Aloud having a boob job -- would any of 8 those be in the public interest? 9 A. No. No. We sort of crafted them as -- I say 10 "crafted" -- we created them as such, so we wanted to 11 pick things that definitely could not qualify in the 12 public interest. I find it hard to see how any story of 13 a similar nature could be classed as in the public 14 interest. 15 Q. A number of them refer to the Fern Britton example, if 16 I can call it that. They said she'd had gastric band 17 surgery, but then when she was asked, "How did you lose 18 the weight?", she seemed to suggest that she'd been 19 eating healthily and exercising and the argument was 20 then: "Well, we're entitled to publish this story 21 because she has lied to the public about how she lost 22 the weight." 23 Do you consider the publication of the fact of her 24 surgery was in the public interest? 25 A. I don't know what the source of the Fern Britton story 52 1 was. In fact, no one knows -- 2 Q. Regardless of source. 3 A. But I think the source is actually important because if, 4 for example, it was her friend or her PA who tipped off 5 the News of the World, and they ran it based on that, 6 that wouldn't involve a breach of the Data Protection 7 Act. That's just someone giving some evidence about 8 something that happens to be true. I think maybe in 9 that circumstance, you could say that has more merit 10 than other stories about being in the public interest, 11 so it has a weight to it. I'm not -- you know, it never 12 went to court, it never went to the PCC, so we'll never 13 know. But in that instance, you could say yes, it had 14 more weight. But crucially that doesn't imply that that 15 covers a breach of the DPA. 16 What you're talking about here is a doctor or 17 a nurse selling to a newspaper what happens within the 18 confines of a medical room, and that should be sacred. 19 As I say, I fail to see what public interest there can 20 be for anything -- even if they have made some comments 21 about eating Ryvita, I can't see how encouraging 22 a medical professional to break that could be seen in 23 the public interest in this context. 24 Q. I'm going to ask you some brief final questions. I have 25 two more topics to cover with you. First of all is the 53 1 release of the film. You tell us at paragraph 96 2 onwards about the release of Starsuckers and the 3 problems you had? 4 A. Yes. 5 Q. Do you want to summarise for us very briefly, please, 6 the problems that you had distributing the film and 7 having it seen, et cetera? 8 A. Well, no one wanted to help us, I think, but that's 9 probably because the very people we need to help -- you 10 need to help you when you release a film were all 11 criticised within the film. So people weren't -- all 12 media organisations weren't going to help a movie that 13 specifically criticised them, and I did like to be fair 14 by criticising everyone, so we didn't have very many 15 friends. 16 The Film Council was supposed to be giving us 17 a grant -- it's only 5,000, but to help with the 18 releasing costs and just before the film was released, 19 because we were experiencing legal difficulties, they 20 actually pulled out of that, just to give an example of 21 how everyone did run for cover. But on the other hand, 22 some people stepped up and really tried to help us. So 23 the London Film Festival put it out in their festival. 24 Independent cinemas said, "Look, we don't even care if 25 the film is going to be sued. We're going to put it in 54 1 the cinema because it's really important." And the 2 Guardian obviously gave us a big push and then Channel 4 3 came in and eventually bought the TV rights. So it 4 wasn't like everyone ran for cover but the majority of 5 the people within the media and the film business just 6 didn't want to have anything to do with us at all, 7 because -- I think they emotionally didn't like the idea 8 that we were sort of criticising our own industry, and 9 also there were these sort of legal threats that sort of 10 exploded in a very sort of short period of time. 11 Q. I'll come back to the legal threats, but let me just 12 take you to paragraph 100. You say that on 15 October 13 2009, the Guardian ran an article on their front 14 page that you'd been selling fake celebrity stories to 15 the tabloids and then the following day they ran the 16 results of your medical records investigation. You say 17 that the BBC covered this extensively. Did any other 18 newspaper mention the fake stories or the medical 19 records sting? 20 A. No, no. There was absolutely no pick-up by the British 21 press whatsoever. 22 Q. Come on then to tell us, please, about the legal 23 problems. At 104 onwards you tell us that you had a bit 24 of a battle with the News of the World. Tell us about 25 that as briefly as you can. 55 1 A. The News of the World obviously got quite upset that 2 we'd invaded their privacy and they contacted our 3 lawyers. The in-house legal team of the 4 News of the World contacted our lawyers. 5 Q. Mr Crone? 6 A. It wasn't Mr Crone, actually. It was -- I can find out 7 who it was. It was someone who worked just beneath him. 8 It was their in-house legal team, certainly someone 9 working under Mr Crone, basically saying that they felt 10 that their journalists had been libelled and they wanted 11 to basically prevent us releasing that section of the 12 film, even though Tom Crone has said publicly before he 13 wouldn't use libel laws against other journalists. 14 Q. What was the upshot of this? Did they take you to 15 court? 16 A. No, sorry. The upshot was -- there was three legal 17 teams in one week who all tried unsuccessfully to order 18 us to edit the journalists and the News of the World out 19 of the film, and we basically said, "We'll see you in 20 court", and they went away. 21 Q. You then tell us that the film was released, 22 paragraph 124, and a number of newspapers printed 23 reviews. Did any of the tabloids print reviews of the 24 film? 25 A. The Express gave us four STARS, which I thought was very 56 1 nice of them. A nice bit of -- I actually got a nice 2 letter from them as well, thanking us for the first 3 decent bit of publicity they'd had in a long time. But 4 no. I missed The Sun off here. The Sun didn't print 5 a review. So all -- I know all these critics came to 6 see the film because you have a press release that says 7 who came to see it. So they all came to see the film, 8 but none of them wrote reviews. So none of the papers 9 that were criticised printed reviews, no. 10 Q. You say at paragraph 127 that the reaction of the PCC 11 was mixed. What does that mean? 12 A. It's film parlance. When you say reviews are mixed, it 13 generally means "not good". Yes. Alison Hastings spoke 14 to some journalism students at City University and was 15 apparently very disparaging about the film. Stephen 16 Abell from the PCC wrote a letter to the -- Dublin 17 Times, was it? Belfast Telegraph, basically disagreeing 18 with what I was saying and disagreeing with the general 19 thrust of our arguments. 20 Q. Did you ever ask the PCC to investigate any of the fake 21 stories or the medical records sting? 22 A. Did I personally ask them to investigate? No, we kind 23 of thought it was something they might have the 24 initiative to do themselves. 25 Q. Did they investigate it? 57 1 A. No, not to the best of my knowledge or the knowledge of 2 anyone I've spoken to. We just generally assumed that 3 they would start looking, but they didn't. 4 Q. You then go on at paragraph 132 to tell us that the True 5 Stories strand on More4 acquired the British TV rights 6 for the film and the film had to go through an Ofcom 7 compliance check? 8 A. Yes. 9 Q. Which took several months. You say the film was passed 10 uncut, bar a handful of minor alterations, and they were 11 not relevant to the parts -- 12 A. Elsewhere in the film, yes. 13 Q. Absolutely. Can I ask you this: you said right at the 14 outset that you'd always intended for the film to be 15 shown on television so you'd always had the Ofcom 16 regulations in mind. But you go on to say at 17 paragraph 146 of the statement that although the PCC 18 system is, in your view, is ineffective, the Inquiry 19 shouldn't use Ofcom as a regulator either. Can you tell 20 us perhaps a little about which specific aspects of 21 Ofcom you believe should be avoided? 22 A. Ofcom's a very sort of tough regulator for television, 23 and I think in some circumstances that's probably quite 24 necessary, but I think when it comes to journalism and 25 current affairs, it's far too onerous. This isn't just 58 1 my opinion; this is widely held opinion. 2 The penalties exacted on broadcasters are such that 3 I think some broadcasters -- and I think sadly in 4 particular the BBC -- almost in fear of an Ofcom 5 complaint will sort of water down their journalism and 6 stories. And we're not talking about celebrity 7 tittle-tattle; we're talking about really important 8 things in the public interest that they will water down, 9 and in some cases not even run cases in fear of what 10 happens when there's an Ofcom complaint. Rather than 11 accepting that every year, someone's going to get 12 something wrong and that's just part of life if you're 13 making this huge output, it's generally felt that Ofcom 14 penalties are so harsh that they have to be avoided at 15 all costs, which means you cannot possibly risk having 16 an Ofcom complaint. And I think that is having 17 a chilling effect on television journalism. 18 What is happening now is that technology is 19 completely overtaking this regulatory framework. So you 20 have Ofcom, which looks after television, and you have 21 the PCC which does or doesn't look after newspapers, but 22 newspapers are doing internet TV journalism. There was 23 a story that broke this morning about Bell Pottinger 24 being secretly filmed, which is on the Independent, and 25 they have clips on their news site of some of the 59 1 undercover meetings. I've done short films for the 2 Guardian which sit outside of Ofcom, but if people are 3 sitting at home and they have the internet wired up on 4 their television, then they can watch the two side by 5 side. So it means that newspapers are able to do 6 TV-esque current affairs programme completely bypassing 7 Ofcom and what you're having is stories that aren't 8 being shown on TV going to newspapers because there's 9 a sort of a less harsh framework. 10 Then you also have the Internet, which is completely 11 unregulated. 12 LORD JUSTICE LEVESON: So you have the three regimes: Ofcom, 13 the PCC and nothing. 14 A. Exactly, and for the viewer at home, they're not aware 15 of this. They're just watching stuff and they're 16 completely unaware of what is regulated by who. And 17 what you, in my view, need to do is just level it and 18 have parity, either of two regulators or just have one 19 regulator. But as more and more newspapers are doing 20 video, this problem isn't going to go away, and you see 21 lots of documentary makers in some cases abandoning 22 television and going and taking their stories to the 23 Internet and to newspapers because they can tell 24 a better story. And I think, you know, the example of 25 today's story in the Independent totally stacks that up. 60 1 It's a fantastic story and it's video and it's online. 2 MS PATRY HOSKINS: Is there anything else that you'd like to 3 say about perhaps reform of the PCC or anything that 4 you'd like to add to what you've just said? 5 A. I think it's perfectly simple to me and lots of people 6 how the PCC needs to be reformed. 7 LORD JUSTICE LEVESON: Oh? 8 A. To my mind, the newspapers understand one thing, which 9 is money, and I think the undercover meetings that we've 10 shown show that the PCC adjudications are as good as 11 meaningless, really, in terms of correcting behaviour. 12 So if you had a body that could exact penalties and 13 fines, then it would be viewed in the same way that 14 libel fines are, and it's interesting if you look at 15 some of the things that we tried to put out, like 16 Alan Sugar. They said -- we found out they couldn't 17 print anything nasty about Alan Sugar because he's 18 litigious, so therefore the newspapers thought: "Well, 19 we won't touch him." But what would happen if everyone 20 was litigious, or what would happen if this new body 21 could fine newspapers in the way that a litigious 22 celebrity can hire Schillings or whoever to sue? Then 23 the newspapers would self-correct. They would say, "I'm 24 not going to run this story about this person because if 25 it turns out not to be true, I might get fined by the 61 1 PCC, and if I get fined by the PCC, I might lose my 2 job." 3 I think the other thing crucially is the lack of 4 credibility that the PCC has because of the number of 5 editors on the PCC itself, and I think that ruins its 6 credibility if people are complaining to the very people 7 who have wronged them. There's an argument I remember 8 approximate being put forward that basically says that 9 members of the public can't possibly understand how 10 newspapers work. I think that's nonsense. I think it's 11 very easy to understand how newspapers work. I think 12 that's as self-serving argument that's put forward to 13 keep newspaper editors in control of the PCC. So I 14 think you need to sever that link, be independent of the 15 press and definitely independent of government and be 16 able to exact fines. 17 The code is good. I wouldn't alter the code. It's 18 just who sort of -- who's responsible for enforcing it 19 that needs to change. 20 MS PATRY HOSKINS: Mr Atkins, is there anything you'd like 21 to add? 22 A. Just one thing on the public interest, sorry. 23 Q. Of course. 24 A. I think the public interest -- it's just the question 25 you asked about how you define the public interest. In 62 1 my view, it isn't difficult. If you look at when public 2 interest justifies invasions of privacy or breach of the 3 Data Protection Act -- if you look at the MP's expenses, 4 that was a human breach of the Data Protection Act but 5 there was no question of the authorities prosecuting 6 because it was so overwhelmingly in the public interest. 7 If you look at some of the undercover filming done 8 by Dispatches on lobbying a year ago or the one today, 9 no one is questioning whether or not this is in the 10 public interest. I think that as a term the public 11 interest has been sadly taken away from where it should 12 be, which is that sphere, and then it's used by tabloid 13 newspapers sort of after the fact as a kind of stick-on 14 to try to justify something that's just invading 15 someone's private life, and I think as a term, it's been 16 just taken out of its correct context, and as even you 17 saw with Max Mosley, they invented details to turn it 18 into the public interest and I think -- I think we 19 almost need a new term for it, like the prurient 20 interest or something. That's the tabloids' legal 21 trick, and this is the public interest over here that 22 justifies proper investigative journalism going on. 23 MS PATRY HOSKINS: Thank you very much. Unless you have 24 anything else to say, thank you very much for answering 25 my questions. 63 1 LORD JUSTICE LEVESON: Thank you very much. Thank you for 2 the work that you've obviously put into the submission 3 you've put in. 4 MR CAPLAN: Can I just say that on behalf of a third party, 5 Caters News Wire -- the news agency, in fact, which put 6 out this story regarding the chastity garter that ended 7 up eventually, having being refused by the Daily Mail 8 and the Mail Online -- I think it's just fair to say in 9 relation to that third party that we do understand that 10 they spoke to Mr Atkins -- or Mr Atkins spoke to them, 11 pretending, of course, to be a PR company. Caters News 12 Wire then spoke to the couple concerned, who Mr Atkins 13 had put them in touch with. They did make checks with 14 the couple before publishing it and they did look at the 15 website, of course, which has been fabricated, and 16 without that deception of the couple and the website, 17 the news wire would not have published the story. 18 I think it's fair to say that. 19 MS PATRY HOSKINS: Sir, I think I put that question to 20 Mr Atkins and he said that conversation never took 21 place. 22 A. It never took place. 23 LORD JUSTICE LEVESON: Yes, Mr Patry Hoskins did ask about 24 it. Thank you. 25 MS PATRY HOSKINS: Sir, that concludes the evidence for this 64 1 afternoon and I understand that we -- I'm losing track 2 of days. 3 LORD JUSTICE LEVESON: No, no, we have something else to do. 4 Yes, Mr Brown? 5 MR BROWN: I indicated to Ms Patry Hoskins that I would be 6 asking you to order that Mr Atkins provides the entirety 7 of the tapes and the covered film footage. 8 LORD JUSTICE LEVESON: But why? 9 MR BROWN: Because it's necessary to see the whole of the 10 conversations in context. 11 LORD JUSTICE LEVESON: Why? 12 MR BROWN: In order to see in what circumstances a story 13 might have been published and, if published, could have 14 been justified. 15 LORD JUSTICE LEVESON: Well -- 16 MR BROWN: Can I develop the submission? 17 LORD JUSTICE LEVESON: Please, develop it. 18 MR BROWN: First of all, let me indicate the material that 19 we are interested in. 20 LORD JUSTICE LEVESON: Have proceedings been commenced for 21 libel? 22 MR BROWN: With respect, I'm not sure that that has anything 23 to do with it. 24 LORD JUSTICE LEVESON: But that's the way that you would get 25 discovery of the entirety of the material, isn't it? 65 1 MR BROWN: We suggest, with respect, that it's fairness to 2 the paper and to its journalists, who have been 3 criticised in trenchant terms by Mr Atkins for breaching 4 not merely the PCC code but also the Data Protection 5 Act, that one looks to see from the material in the 6 tapes and the entirety of the material whether there was 7 a basis for the newspaper investigating the matter in 8 order to see whether the material could be justified, 9 either because it was in the public domain -- it had 10 been put there in part by the celebrity; a point that 11 Mr Carling raises -- or in the public interest in the 12 sense that it was necessary in order to correct a public 13 figure who was misleading the public, and the example 14 obviously has been given of Britton, and one sees how 15 that reasoning can be traced back to the House of Lords' 16 decision in the Naomi Campbell case. 17 What we know is first of all that there are audio 18 tapes of the conversations on 20 March. They are said 19 to have been transcribed in toto, but we've not had the 20 opportunity to check the accuracy of the transcripts. 21 More significantly, there is the video footage of 22 the meetings on 26 March between Mr Atkins and first 23 Mr Owens and then Ms Jellema. We learnt this afternoon 24 that, so far as that is concerned, only half -- only 25 half of the material had been transcribed. 66 1 And finally, there is the issue of any notes of 2 voicemails that were left by any journalist, and in 3 particular by Ms Jellema for Mr Atkins, because it was 4 clear from Ms Patry Hoskins' questioning and the answers 5 to those questions that there is a dispute, an important 6 dispute, as to whether, as Ms Jellema says, the news 7 desk told her that they were going to drop it and she 8 left a note on the voicemail of Mr Atkins, or whether, 9 as he said, the messages on his voicemails were 10 enthusiastic and wanting to pursue this story. So 11 there's an important dispute there -- 12 LORD JUSTICE LEVESON: But I don't intend to resolve it, 13 Mr Brown. 14 MR BROWN: Well, I understand that the Inquiry's position is 15 that there will be no specific findings in this section 16 of the Inquiry, but on the other hand, an afternoon has 17 been devoted to considering all of Mr Atkins' many 18 complaints against the press in relation to my clients, 19 what he says are blatant illegalities, and the issue -- 20 it's not so much whether or not the Inquiry is going to 21 make a finding, but what in those circumstances is fair, 22 and that's what I don't need to remind you -- 23 LORD JUSTICE LEVESON: I am very conscious of wanting to be 24 fair, Mr Brown, and if your clients and the journalists 25 want to submit evidence, then of course, to be fair, it 67 1 shall be deployed, but I'm not getting into a discovery 2 exercise. 3 MR BROWN: Can I just see what I have to say about 4 discovery? The problem is that these conversations took 5 place now over two and a half years ago, back in March 6 of 2009, so the difficulty that we have -- and 7 Ms Jellema is no longer in our employ, Mr Owens is, but 8 the difficulty is the best effort as to what they said 9 would be the full tapes. It's not surprising that they 10 can't recall precisely what was said, and it would be of 11 benefit, you may think, to this Inquiry, to know from 12 the available material all they said in order to gauge 13 what precisely was the position in relation to possible 14 defences, and both Section 55 and Section 32 of the DBA, 15 in slightly different wording, provide for public 16 interest defences, and there is no, as Mr Atkins is 17 suggesting -- and there is no absolute sanctity 18 attaching to medical treatment or hospital treatment. 19 One sees that from the Naomi Campbell case itself, where 20 she was seeking clinical treatment to cure her 21 addiction. 22 If I can just list why I say that fairness 23 necessitates the full examination of any record that he 24 may have of anything said and left on his voicemail, but 25 also, and just as importantly, the entirety of the 68 1 covered film footage, firstly it's the context, as I've 2 said, which may well indicate that the approach that was 3 being adopted was consistent with the PCC code rather 4 than flouting it -- 5 LORD JUSTICE LEVESON: I find it quite difficult to see how 6 that might be, out of what we've seen. 7 MR BROWN: That is the point. What have we seen? 8 LORD JUSTICE LEVESON: We've seen a distinct chunk. 9 Mr Brown, if I go down this route, if I go down this 10 route, then in relation to each fact -- and we over the 11 last few weeks have heard many, many facts, many 12 allegations, great issues raised by a number of the 13 journals, media representatives who are here -- if I was 14 to do that, then it would be quite impossible for me not 15 to do it in every single case, and I would be here for 16 a decade. 17 MR BROWN: Well, I'm not suggesting that it would be 18 necessary, still less desirable, an exercise of 19 discretion in every single case, but what I am 20 suggesting is that it wouldn't be right and would offend 21 basic fairness if you were to take the position that it 22 would never be done. 23 And here, where allegations of illegality have been 24 made against my clients and where, if the full covered 25 film footage is examined, there could well be a basis, 69 1 as I submit there is, for submitting that there was no 2 breach of the code, not likely to be a breach of the 3 code, and no illegality, my contention is that it ought 4 to be possible to look at this material and it will 5 speed the evidence that will ultimately be given by the 6 journalist and their editors. 7 LORD JUSTICE LEVESON: I'm not so sure about that because 8 whereas I'm perfectly happy to receive the evidence, and 9 of course the right of response, if it's necessary, will 10 be considered, I am focused very much on a much, much 11 wider question. 12 The fact is that, as I understand it, this film was 13 screened in -- 14 MR BROWN: October 2009. 15 LORD JUSTICE LEVESON: -- October 2009, thank you, in other 16 words, within months of the events. I have absolutely 17 no doubt that your clients were on top of the 18 allegations. Doubtless they have responded, and I'd 19 look at a response, but the problem about remembering 20 now is not a new problem. This is something that 21 they've been actually on top of for some time. 22 MR BROWN: Can I just direct your attention out of the 23 question of relevance? It would be very different if 24 one of the Inquiry team had looked at the other half of 25 the covered film footage and -- Mr Jay or 70 1 Ms Patry Hoskins were to say there is nothing relevant 2 there to the issue of a possible defence. But as 3 I understand it, the arbiter of relevance is Mr Atkins 4 himself and it might be said that in that respect, given 5 the strength of his feelings towards the tabloid press, 6 he's somewhat parti pris. 7 The other point that I would make is this: he 8 appears to believe that there is some form of 9 journalistic privilege in law which attaches to unedited 10 material. He says as much in paragraph 108 of his 11 witness statement. He's repeated it again today. If 12 material is being held back on that basis, there is, in 13 my submission, no footing in law on which that can 14 properly be done. 15 LORD JUSTICE LEVESON: I understand, but that's not the 16 reason that I would say no. 17 What you raise is the interesting question. First 18 of all, I am absolutely opposed to a satellite 19 investigation. I will consider, and I am prepared to 20 consider, whether to ask Mr Atkins to allow a member of 21 the Inquiry team to see or to read whatever else is 22 there. I'd have to discuss that and think about it, but 23 I am prepared to think about that, simply in the spirit 24 of seeking to deal with your concern. But I'm not going 25 to go down the route of disclosure between witnesses and 71 1 core participants. I'm just not going to do it. 2 MR BROWN: Well, you've made that very clear. So far as any 3 safeguard is concerned, that is some consolation if one 4 of the counsel on the Inquiry team looks at it, and in 5 the light of what I've said about relevance to any 6 possible defences -- 7 LORD JUSTICE LEVESON: I understand. I understand. I will 8 give that immediate thought. 9 MS PATRY HOSKINS: Sir, may I clarify one matter? 10 LORD JUSTICE LEVESON: Yes. 11 MS PATRY HOSKINS: I just want to make it absolutely clear, 12 on 1 November this we're we wrote to the Mirror Group 13 enclosing a draft version of Mr Atkins' witness 14 statement, making it clear that they were being given 15 a full opportunity to respond to the allegations that 16 were made. We made it clear when serving the notices 17 concerned that you would not be deciding any specific 18 issues. It wasn't an issue of Mr Atkins is right or the 19 journalist is right. The notices contained the most 20 general questions along the lines of, well, "If what is 21 said by the journalist is accurate, what would be the 22 view of your newspaper group?" et cetera, et cetera. 23 There's simply no need, in my submission, for Mr Brown 24 or his client to see the underlying material in those 25 circumstances. 72 1 LORD JUSTICE LEVESON: I understand the point. 2 MS PATRY HOSKINS: But I'm happy to go to Mr Atkins' studio 3 and watch hours of footage, if that would assist. 4 I don't think it's necessary in order to comply with the 5 notices. 6 LORD JUSTICE LEVESON: I'll contemplate that. I don't 7 anticipate it would be hours, because it's a specific 8 video, but I would need to think about it and I would 9 need to take Mr Atkins' views, which I don't intend to 10 do in public at this moment. Thank you. 11 MR BROWN: Could I just add that we only got his witness 12 statement last week on 28 November. 13 LORD JUSTICE LEVESON: I'm sorry about that, Mr Brown. 14 You'll appreciate that -- well, I will investigate as to 15 when you got it. I'll look at that question. 16 MR BROWN: You'll see that's -- 17 LORD JUSTICE LEVESON: I think you've had access to the 18 Lextranet website. 19 MR BROWN: Yes, but I -- there wasn't. Herbert Smith tell 20 me it wasn't there until 28 November. 21 LORD JUSTICE LEVESON: That's interesting. 22 MR BROWN: We didn't have the full transcripts which are 23 annexed to the statement. The statement itself is dated 24 by Mr Atkins when he signed it, 28 November, so it 25 wouldn't have been possible to serve it on us before 73 1 then. 2 LORD JUSTICE LEVESON: There was a draft version, 3 Ms Patry Hoskins said. 4 MR BROWN: She did say that. As far as I know, we never saw 5 it. 6 LORD JUSTICE LEVESON: I'll look just for the sake of 7 clarity. 8 MR BROWN: That's very kind. Thank you. 9 LORD JUSTICE LEVESON: Thank you very much. 10 Could I just raise a very different question for 11 reasons which don't need to be elucidated? I am quite 12 keen to understand whether I've correctly understood the 13 position of the core participants who do represent 14 newspapers today. Mr Caplan, can I start with you? 15 It's not a difficult question, I think, but I've always 16 understood that you came for Associated Newspapers 17 representing the editor and the editorial team, such 18 journalists as you felt required representation and also 19 the proprietor, whatever form that was. Is that right? 20 MR CAPLAN: Yes. I think the interests of those people and 21 of Associated Newspapers Limited. 22 LORD JUSTICE LEVESON: Yes. I'm going to ask others that, 23 because it's recently been suggested that proprietors 24 haven't had the opportunity to take part, and I'd rather 25 thought that each of the newspaper organisations who are 74 1 represented are representing all the strata of the 2 organisations from which they emanate. I just wanted to 3 check that position. 4 Mr Brown, is that so for -- 5 MR BROWN: Yes. It's not any different for us. I mean, 6 obviously if there were to be a conflict between the 7 managers of the paper and a journalist, something 8 different might arise. 9 LORD JUSTICE LEVESON: What I said, I think, at one of the 10 earliest hearings was that this is not the normal 11 contentious litigation, and that I would hope that those 12 who were acting for titles could manage the differences 13 of view perfectly satisfactorily without feeling 14 themselves conflicted from so doing. I'm not going to 15 start saying, "Well, you can't say this because somebody 16 in your team says that". I'm keen to get everybody's 17 help to such extent as they can give it, and -- 18 MR BROWN: Yes, I understand that, and I've taken a rather 19 less restrictive view than one might have done in 20 ordinary litigation. 21 To take the example with Ms Jellema, she talks about 22 the PCC being a slap on the wrist; the editor would say 23 something very, very different. 24 LORD JUSTICE LEVESON: Yes, I understand. Thank you. 25 Can I ask the same about News International? 75 1 MS BOASE: This team acts for News International and its 2 subsidiaries and three titles. It's never been relevant 3 as to whether we act for the proprietors of 4 News International. If you'd like me to take 5 instructions on that, I can. 6 LORD JUSTICE LEVESON: I hope you are, and you might 7 obviously like to consider it. It's only because it was 8 suggested that I wasn't listening to proprietors that 9 I felt it right to ask the question. 10 MS BOASE: We'll take instructions. 11 LORD JUSTICE LEVESON: Anything else? 12 MS PATRY HOSKINS: I don't think so, unless anyone has 13 anything they would like to raise. 14 LORD JUSTICE LEVESON: Thank you very much. It's Thursday. 15 (4.23 pm) 16 (The hearing adjourned until 10 o'clock 17 on Thursday, 8 December 2011) 18 19 I N D E X 20 MR STEVEN JOHN NOTT (affirmed) .......................1 21 Questions from MR BARR ...........................1 22 MS CHARLOTTE ROSE HARRIS (sworn) ....................18 23 Questions from MR BARR ..........................18 24 MR DAVID LEIGH (affirmed) ...........................48 25 Questions from MR BARR ..........................48 76 1 MR CHRISTOPHER WALSH ATKINS ........................106 2 (affirmed) 3 Questions from MS PATRY HOSKINS ................106 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 77 http://www.levesoninquiry.org.uk/evidence/?day=2011-12-06
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-9-December-2011.txt 1 Friday, 9 December 2011 2 (10.00 am) 3 LORD JUSTICE LEVESON: Yes, Mr Jay. 4 MR JAY: I must apologise for the delay; it is entirely my 5 fault. 6 The witness today is Mr Richard Thomas. 7 LORD JUSTICE LEVESON: Very good. 8 MR RICHARD JAMES THOMAS (sworn) 9 Questions from MR JAY 10 MR JAY: Mr Thomas, please make yourself comfortable. Your 11 full name, please? 12 A. Richard James Thomas. 13 Q. Thank you. Mr Thomas, you provided us with six witness 14 statements. I'm going to identify what they are in 15 a moment, but each one is signed and has a statement of 16 truth and it constitutes your evidence; is that correct? 17 A. Yes. 18 If I could just start by apologising to the chairman 19 and to everybody here for my non-appearance last week. 20 My voice was non-existent last week. I appreciate it 21 caused enormous inconvenience and I do apologise. 22 LORD JUSTICE LEVESON: No apologies are necessary, 23 Mr Thomas. It's obviously very important that you're 24 fit and your evidence is clearly very important. Can 25 I say that I'm very grateful to you for the obvious care 1 1 that you've taken in responding to the various requests 2 that the Inquiry has made of you and producing these 3 statements which form the basis of your account of these 4 events. Thank you. 5 A. Thank you, sir. 6 Mr Jay, I have submitted six witness statements to 7 the Inquiry. The first was one I think I put forward 8 in September, a full statement -- 9 MR JAY: Just pause there, Mr Thomas. I want to identify 10 them precisely and then we'll go through them. You're 11 right; the first one you submitted, if I may say so, 12 extremely timeously -- and it's a detailed statement -- 13 on 6 September of this year. It's tab 1, I think, in 14 the main file you have there, and it has 46 exhibits; is 15 that right? 16 A. That's correct. 17 Q. It sets out in your own words the narrative from between 18 about 2002 to the present day, or probably more 19 pertinently, to 2009 when you left the ICO's office; is 20 that correct? 21 A. It's correct in the sense I left in 2009. My first 22 statement concentrated primarily on events leading up to 23 the publication of the two reports by my office and the 24 events following that. 25 Q. Thank you. Your second statement is dated 16 October 2 1 2011. It has exhibits RJT47 to 50. It will be in 2 tab 53, I believe, of the file we have prepared for you 3 and it deals with the detail of the 13,343 requests 4 which were made of Mr Whittamore. We'll look at that in 5 more detail in due course. 6 Your third statement is dated 7 November 2011. It's 7 tab 58 in that file. It deals with the position of the 8 journalists, without, of course, naming any of the 9 journalists, which policy we're going to continue to 10 adopt, Mr Thomas. 11 Your fourth statement is 21 November, paragraph 59, 12 and that deals with Mr Owens' evidence, which you had 13 seen his witness statement; is that correct? 14 A. That's correct. 15 Q. And it's your tab 59. 16 Then there's the fifth statement of 27 November, 17 tab 59A, which deals, if I can describe it in these 18 terms, with Associated Newspapers' evidence; is that 19 correct? 20 A. That is correct. 21 Q. And your sixth statement as recently as 6 December, with 22 exhibits RJT51 to 54. This deals further with the 23 evidence of Mr Owens. Is that correct? 24 A. That is correct. If I could just explain that when 25 I prepared my second, third and fourth witness 3 1 statements, I had not then had the copies of the legal 2 materials which you've received from my former office. 3 Having received those, I prepared my sixth statement on 4 Tuesday of this week. 5 Q. Thank you. 6 A. There's nothing inaccurate in my previous statements but 7 my sixth statement elaborates some of the points made 8 previously. 9 Q. Mr Thomas, in order to make your evidence as sort of 10 vivid and intelligible as we can, I'm not going to cover 11 it quite in chronological order. I'm going to do it 12 thematically, if I may. 13 Before we start, may I invite you to tell us a bit 14 about your career? This is paragraphs 1 to 2 of your 15 first witness statement. On the unique reference 16 numbers we're using, the last five numbers are 00258. 17 In your own words, your career, Mr Thomas, in the law. 18 A. Well, I'm trying to think. I was Information Commission 19 from 2002 to 2009. Before that, I had been in various 20 roles. I qualified as a solicitor in 1973. I trained 21 and qualified at Freshfields. I spent three years 22 there. 23 I then went to the other end of the legal spectrum. 24 I became the solicitor for the Citizens Advice Bureau on 25 a full-time basis. 4 1 In 1979, I was the legal officer and then head of 2 public affairs for the National Consumer Council. In 3 1986 I was appointed as the director of consumer affairs 4 for the Office of Fair Trading. In 1992, I joined 5 Clifford Chance as their director of public policy, then 6 2002 -- November 2002 until June 2009 I was the 7 Information Commissioner. 8 Currently, I am the part-time chairman of the 9 Administrative Justice and Tribunals Council. I do that 10 about three days a week, and about three days a month 11 I'm a consultant to a think tank which is called the 12 Centre for Information Policy Leadership, based with 13 a law firm in the United States and I'm also -- I'm the 14 deputy chairman of Which? the consumer association. I'm 15 a trustee of the Whitehall and Industry Group and I'm 16 a member of the management board of the International 17 Association of Privacy Professionals. 18 Q. Thank you very much, Mr Thomas. Paragraph 5 deals with 19 the functions and role of the Information Commissioner. 20 This is 00258. You cover really two different and, in 21 one sense, antithetical functions. On the one hand, you 22 are concerned with privacy in the context of the Data 23 Protection Act, but on the other hand you are concerned 24 with the dissemination of information under the Freedom 25 of Information Act 2000. Is that correct? 5 1 A. Yes. When I started at the end of 2002, the Freedom of 2 Information Act had been passed but had not yet come 3 into force. It came fully into force on 1 January 2005. 4 But the functions under both acts have certain 5 circularities. I think they dovetail and are 6 complementary to each other. 7 The way that I commonly describe the various 8 functions is that the Commissioner is required under the 9 Acts to carry out various duties, and the language 10 I used was that we were partly a regulator, partly an 11 ombudsman, partly an educator and partly a policy 12 adviser. So we had a range of functions under both Acts 13 which were involving both regulation, dispute 14 resolution, education of both organisations and the 15 general public and also giving policy advice at the 16 national and at the international levels. 17 Q. You confirm -- and this is correct -- that you are not 18 a regulator of the press as such, nor do you have any 19 powers under RIPA; is that right, Mr Thomas? 20 A. No powers whatsoever under RIPA. Every media 21 organisation will be -- in the language of the Data 22 Protection Act will be a data controller. There's over 23 300,000 data controllers, and I think it's inconceivable 24 that any person involved in the media would not be 25 a data controller, so they would have to notify their 6 1 activities on a public register maintained by my former 2 office. 3 Q. Yes. Under section 1, subsection 1 of the Data 4 Protection Act, a data controller -- you'll know this 5 off by heart but others will not necessarily -- is 6 a person who, missing out irrelevant words: 7 "... determines the purposes for which and the 8 manner in which any personal data are or to be 9 processed." 10 So that would cover media organisations, would it 11 not? 12 A. Indeed. 13 Q. Presumably it would cover personal data transmitted by 14 someone like Mr Whittamore to a media organisation? 15 A. I think it almost certainly would. I'd need to think 16 closely about that particular question, but one of the 17 points I should make is that the powers of the office in 18 relation to what I can broadly call the press were 19 really quite severely circumscribed, particularly by 20 section 32 of the Act, which disapplies in the effect -- 21 I'm using lay language, perhaps, but disapplies many of 22 the powers of the Commissioner where information is 23 being processed in most cases for the purposes of 24 journalism. That is an incredibly complicated part of 25 the Act. We could spend a lot of time looking at that. 7 1 I don't think it's particularly relevant to most of the 2 issues which the Inquiry is examining but I do actually 3 have a cribsheet on section 32, if that would help the 4 Inquiry. 5 Q. May we attempt an overview of your powers. See how far 6 we get with this. 7 First of all, please, Section 55, which, sir, will 8 be found in Mr Graham's bundle under tab 62. It's 9 page 08053. I'll not going to spend very long on this, 10 Mr Thomas, but just so that we see the terrain. We've 11 seen Section 55 before with another witness. As you say 12 in your witness statement, this is the criminal 13 provision, of course. There are three possible actors: 14 the person who obtains, the person who discloses and the 15 person who procures the disclosure of information to 16 another person; is that right in broad terms? 17 A. Yes. Section 55 is really an entirely self-contained 18 part of the Act. Its origins go back to legislation 19 1994. There was a scandal involving Norman Lamont -- 20 Lord Lamont at the time. His credit card details became 21 available in the press and I understand there was 22 concern at that time and that led to an amendment, 23 I think, to the Criminal Justice Act of 1994 and that in 24 due course was transposed into the 1998 Data Protection 25 Act, so it's a self-contained part of the Act. 8 1 Q. Certainly. Mr Aldhouse told us about that and you're 2 absolutely right. There's just one point, though, 3 I need to raise with you on Section 55(1)(a). Would you 4 agree that one can obtain personal data through the use 5 of an agent? 6 A. I don't recall ever having that point discussed or 7 analysed inside the office. Certainly my understanding 8 of the conventional wisdom inside the office that 9 "obtain" meant more than just receive. It meant 10 actually seek out and obtain. 11 "Disclose" I think is self-evident, and primarily 12 where agents were concerned, I think we would be looking 13 primarily in terms of section 51(b), the procuring 14 element of Section 55. 15 Q. So a journalist then -- 16 A. I understand the argument. I'm simply saying that 17 primarily when we had -- I think you have to also recall 18 that the majority of the prosecutions we brought were 19 against people who had actually sought out and obtained 20 the information in that sense without the consent of the 21 data controller. I understand the point you're making. 22 I wouldn't like to make a definitive ruling here, nor am 23 I aware of any debate in the office on that particular 24 point. 25 Q. So a journalist who asked a private investigator to 9 1 obtain personal data and then receives it through the 2 agency of the private investigator, you don't think 3 clearly falls with Section 55? 4 A. I'm not saying one way or the other. I'm just not aware 5 of that one being tested in court or elsewhere. 6 LORD JUSTICE LEVESON: Normal principles of aiding and 7 abetting would probably work, in that he is also 8 obtaining it, but is what you're really saying that 9 because of 55(1)(b), the procuring offence, it may not 10 take the matter very much further? 11 A. Well, I have to speculate, sir, but when Parliament 12 drafted it in this particular way, I can only speculate 13 that they included the procuring offence within 14 Section 55 to cover the situation of where somebody got 15 someone else to obtain the information. But I don't 16 know. The point has not been tested. 17 MR JAY: The other point, please, on Section 55 is 18 Section 55(2)(d), which sets out a defence that in the 19 particular circumstances, the obtaining, disclosing or 20 procuring was justified as being in the public interest 21 There are really two points a that. The first is that 22 this is an objective test, is it not? 23 A. That is correct. 24 Q. Secondly, the public interest is not defined in the Data 25 Protection Act; is that correct? 10 1 A. That's correct. 2 Q. Did you ever provide guidance as to what it might mean? 3 A. In 2008, when there was a great deal of controversy 4 about the criminal justice and immigration bill, which 5 I'm sure we'll come onto later, at that time people were 6 saying, "We're not sure exactly what the public interest 7 means in this situation. You are the Commissioner. Can 8 you help us?" And we therefore drafted a draft 9 statement setting out what we thought the public 10 interest meant in those circumstances. I cannot recall 11 for sure whether that was ever published. I think it 12 was shared with some of the people we were talking to at 13 the time and it was certainly shared with, for example, 14 the minister of justice. But I -- for various reasons, 15 I don't think it was published. I'm not even sure 16 whether to this day it's been published. But there 17 is -- one of my exhibits does actually set out the draft 18 as it stood in early 2008. 19 Q. Thank you. We'll come to that exhibit, but I think 20 you're right in saying we've seen no evidence that it 21 was published. May I just delve into this public 22 interest point a little bit more? Would you agree that 23 there wouldn't be a justification in the public interest 24 if whoever it was was merely fishing for information 25 without having identified in his or her mind what the 11 1 public interest might be before starting on the 2 exercise? 3 A. I certainly agree with that as a broad proposition. One 4 would have to look at the circumstances of every case, 5 but the line that I took was that anybody who was 6 intending to rely upon that defence ought to be 7 absolutely clear as to why they were obtaining 8 information unlawfully -- which would otherwise be 9 unlawful. What would be their defence in public 10 interest terms? And the line I took in many, many 11 conversations was it would be important for the 12 journalist to record what he thought the public interest 13 was, to get advice from his legal advisers, authority 14 from his editor or his superiors and therefore anything 15 which was a pure fishing exercise prima facie was 16 certainly going to look as though it would be very 17 difficult to justify in public interest terms. 18 Q. Another general point. I appreciate that every case is 19 fact-specific, but some have said, "We need to contact 20 people in order to tell them what a story about them is 21 going to be and that we're about to publish that story." 22 Do you have a view as to whether obtaining information 23 of a confidential nature for that purpose would be 24 justified in the public interest? 25 A. Again, it's difficult to say without looking at the 12 1 particular circumstances of each case. I do understand 2 the need for journalists to seek to check their story 3 with those concerned. I do understand that there is 4 a public interest in freedom of expression which feeds 5 into the balance, but I think it would have to be 6 a difficult situation for someone to say that just to 7 find out the name or the telephone number or the address 8 of someone so they could talk to them would be a matter 9 of public interest. I'm not ruling it out, and indeed 10 if I can give an example which was within the Whittamore 11 papers -- I won't name names but I'll just give an 12 example. I think it was a fairly exceptional example. 13 It was where a minister had resigned from the Labour 14 government and his name was in the Whittamore papers. 15 This was after my time, but I understand that he got in 16 touch with my former office and said, "What's all this 17 about?" The office looked at the record in more detail 18 and it appeared in that particular situation the 19 journalist was trying to track down the minister to get 20 a statement from him as to why he had resigned over the 21 weekend. 22 Now, that might -- I'm not saying it was, but that 23 might be justifiable in public interest terms. But that 24 was exceptional. That was not the the sort of material 25 which we saw in the Whittamore papers. 13 1 Q. That's helpful. The sanction, of course, when we're 2 looking at this version of the Act -- it's set out in 3 section 60, I think, not in Section 55, but looking at 4 the current state of the law, there's a limited fine if 5 it's trialled before the magistrates' court but there is 6 an unlimited fine if it's trialled on indictment; have 7 I got that right? 8 A. That is correct. 9 Q. Let me just touch on an ancillary power which arises in 10 the context of this specific criminal provision. Under 11 schedule 9 of the Act, the office has powers of entry 12 and inspection if it has reasonable grounds for 13 believing that an offence has been committed; is that 14 correct? 15 A. That's correct. 16 Q. But you need a warrant from a district judge? 17 A. Indeed, we had to go to a judge and get a warrant before 18 we could use those powers. 19 Q. If we touch on other powers which you have outside the 20 context of criminal sanctions. These are therefore 21 regulatory powers. Section 40 first of all, which is 22 our 08033. There's a power to serve an enforcement 23 notice, is that right, if you're satisfied that a data 24 controller has contravened or is contravening any of the 25 data protection principles? 14 1 A. Yes. This was the main formal power which the office 2 had where we felt that there was non-compliance with the 3 requirements of the legislation. We didn't use it that 4 frequently, but there was a power to serve an 5 enforcement notice on a data controller and that could 6 be challenged, but if it was not challenged, then in due 7 course it became a criminal matter not to obey the terms 8 of an enforcement order. So this was the main power 9 available to us as a regulatory body. 10 Q. Yes. It's the first of the powers under part 5 of the 11 Act, the heading "Enforcement", so it's the first of 12 your mainstream powers. Would it in principle cover 13 media organisations who are focusing data in 14 contravention of any of the data protection principles? 15 A. Yes, it would in principle, but then you have to look 16 very closely at section 32, which disapplies most of 17 the -- or many of -- most of the enforcement powers 18 where one is dealing with personal data which is being 19 processed for journalistic reasons, subject to the 20 detail of the law. 21 Q. That's right. We're not going to spend a huge amount of 22 time on section 32, owing to its complexity, but can 23 I just alight upon it if I may. This is our page 08029. 24 Just to see the consequences and the reach of the 25 provision. Do you have it to hand, Mr Thomas? 15 1 A. I'm looking, if you'll excuse me, at both section 32 and 2 my cribsheet. This is incredibly complicated 3 legislation and I should also say that we rarely had to 4 engage with it in detail because the issues didn't 5 arise. 6 Q. Just to see the scope of the exception, under 7 section 32(1)(a), (b) and (c) as well, probably: 8 "Personal data which are processed only for the 9 special purposes are exempt from any provision to which 10 this subsection relates if the processing is undertaken 11 with a view to the publication by any person of any 12 journalistic, literary or artistic material." 13 So it has to be processing with a view to 14 publication. It can't be processing for some lesser 15 purpose; is that correct? 16 A. That is correct. I mean, if I can perhaps just take you 17 through my cribsheet, because it puts it in plain 18 language, or would you our rather go through it section 19 by section? 20 Q. I don't want to spend too much time on this. It's only 21 if you feel that by doing it in my way, as it were, 22 we're going to arrive at a misleading position. We can 23 see that (b) and (c) are cumulative requirements, so if 24 you don't fall within (a), you don't get off the ground. 25 But (b) is: 16 1 "The data controller reasonably believes that having 2 regard in particular to the special importance of the 3 public of interest in freedom of expression, publication 4 would be in the public interest." 5 So we're dealing always with publication. 6 A. Yes. 7 Q. And then (c): 8 "The data controller reasonably believes that in all 9 the circumstances, compliance with that provision is 10 incompatible with the special purposes." 11 So they're quite strict requirements and they're 12 tied in with publication. But if you do satisfy all the 13 requirements, all of the data protection principles are 14 disapplied apart from the seventh; is that correct? 15 A. And the seventh is security, keeping information secure. 16 Q. Secure in what sense? 17 A. One of the principles -- the seventh principle is that 18 data controllers have to take appropriate steps to keep 19 the information secure, stop it moving away from the 20 data controller, and that seventh principle is not 21 disapplied, but all the others are effectively 22 disapplied. 23 Q. I'm not going to go any further into section 32 -- 24 A. What I would just add to that, though: also disapplied 25 are the subject access provisions which give individuals 17 1 the right to see their own data held by a data 2 controller. Also disapplied, the right to prevent the 3 processing of personal data in these circumstances, also 4 the rights in relation to automated processing and the 5 rights on rectification, blocking, erasure and 6 destruction. All those parts are disapplied and 7 I suppose the central message is that, reflecting the 8 requirements of the underlying directive, the hands -- 9 the application of the Data Protection Act to 10 organisations processing for these purposes was very 11 limited indeed. 12 Q. It's probably pretty obvious what the next question is 13 going to be but I'll ask it nonetheless. If 14 a journalist, for example, is obtaining information, 15 let's say, for the purposes of argument, merely to 16 contact someone who is about to be the subject of 17 a published story, that would not fall within 18 section 32, would it? 19 A. Well, almost certainly not, unless you could connect it 20 with the actual real prospect of a story being 21 published. 22 Q. The processing has to be with a view to the publication? 23 A. Indeed. 24 Q. If you're processing with a view to contacting someone, 25 that's outside section 32, isn't it, Mr Thomas? 18 1 A. I think that's right, yes. 2 Q. Okay. The other enforcement powers, under section 43 3 you can serve an information notice, is that right, on 4 the data controller? 5 A. That's correct. 6 Q. That's our page 08039. You do that in order to 7 ascertain whether the data protection principles are 8 being applied with, don't you? 9 A. Yes. I mean, essentially to find out from the data 10 controller what is going on inside your organisation. 11 We very, very rarely had to use that power. I can't 12 think of any occasions I was personally involved in 13 where this power was used. The equivalent power was 14 used much more heavily in the Freedom of Information 15 Act, but we found in most cases just asking the data 16 controller to co-operate with us to supply information 17 was sufficient for our purposes. So we didn't, I think, 18 use that at all frequently. 19 Q. The last two provisions -- perhaps one of the most 20 important ones. Section 51, which is our page 08046, 21 your general duties: 22 "It shall be the duty of the Commissioner to promote 23 the following good practice by data controllers and in 24 particular so to perform his functions under this Act as 25 promote the observance of the requirements of this Act 19 1 by data controllers." 2 So that, as it were, is the cornerstone of your 3 role? 4 A. Indeed, that's the promotion of good practice. When 5 I referred earlier to our role as an educator, that 6 primarily flows from that particular subsection. 7 Q. Yes, that's section 51, subsection (2). This concerns 8 dissemination. 9 A. That's right, and we published a lot of materials, both 10 for data controllers and for individuals to raise 11 awareness of the requirements of the legislation. 12 Q. Thank you, and the final power, which may be quite an 13 exceptional power, is section 52. Section 52, 14 subsection (2), section 51 subsection (1) is a mandatory 15 duty: 16 "The Commissioner may, from time to time, lay before 17 each House of Parliament such other reports with respect 18 to those functions as he sees fit." 19 Am I right in saying that the two reports you 20 published in 2006 were under section 52 subsection (2)? 21 A. Yes, both those reports were laid before Parliament 22 using that power. It was the first time in some 20 23 years, I think, that the power had been used because 24 I think the equivalent power had been in the '84 Act and 25 my two predecessors had never seen fit or had never had 20 1 reason to lay reports before Parliament. But the two 2 reports, which we'll come onto later, were both laid 3 under that particular be subsection. 4 You say that's the only other part of the Act. 5 You've skipped over section 43, which is the power to -- 6 or the duty to respond to a request. Essentially that 7 is the dispute resolution, the complaint-handling part 8 of the office, and we had thousands of people who came 9 to us saying, "I think that someone has breached mile 10 rights under the Act, I want you to look at this", and 11 we had a large team of people who were investigating, 12 using the rather complicated but -- the request for 13 assessment of a process of section 43. 14 Q. Yes. May I go back to paragraph 10 of your first 15 witness statement. You tell us there that: 16 "Section 55 enforcement was the responsibility of 17 a small investigations team ... composed former police 18 and Customs officers ..." 19 Well, we've heard from one of them, of course. Did 20 you feel that the team was large enough for your 21 purposes at all material times? 22 A. I think we always felt that our teams were not large 23 enough. We felt underresourced. During my time, we 24 changed the funding arrangements for the office. When 25 I started, we received fees from data controllers when 21 1 they notified us and all that money had to be handed 2 across to the Treasury, and then we got a grant in aid 3 back. I wasn't happy with that situation and I felt 4 that the correct and better way of doing it was that we 5 should receive the money and fund the office from the 6 fees received, and that was changed about two years 7 after I started. And that did enlarge the resources 8 available to the office for data protection purposes, 9 but it was a pretty small team which was responsible for 10 investigations. 11 And I think as I said in my statement, there were 12 two main activities for that team: first of all, to 13 chase up cases of non-notification, which is also 14 a criminal matter -- if you don't notify when you're 15 supposed to notify, then that was investigated and the 16 team did that -- and also they were the team which were 17 charged with investigating Section 55 cases. 18 Q. Yes, and you tell us in your fourth witness statement at 19 paragraph 2 -- this is under your tab 59, our 20 page 33459 -- that the formal chain of command was that 21 Mr Owens, who I think was the senior investigations 22 officer, reported to Ms Jean Lockett, who reported to 23 Francis Aldhouse, who reported to you; is that correct? 24 A. That was the formal line of command, that's correct, but 25 I also go on to say that the unit when I arrived was 22 1 a largely self-contained unit. They were in a different 2 building and they were almost semi detached from the 3 rest of the organisation, and I felt over time that not 4 only were they self-contained but to a large extent 5 self-governing and within about a year or so of my 6 arrival, I put changes in place to bring them much more 7 into the structure of the organisation. That led to the 8 creation of what became the regulatory action division, 9 and they then formed a much coherent part of the rest of 10 the organisation. 11 Q. You tell us in paragraph 11 of your first witness 12 statement that a Section 55 offence is often at least as 13 serious as phone hacking, owing to the nature of the 14 information which is being obtained. It might be highly 15 confidential information in general terms; that's right, 16 isn't it? 17 A. I would say that and I'd like to, I suppose, stress that 18 point. Obviously over the last few months I've followed 19 the concerns about phone hacking and during my time as 20 Commissioner, we didn't have any suggestion that there 21 was phone hacking going on in the way it's been revealed 22 in the last few months. But certainly we were very 23 concerned indeed about the security of personal data 24 held in many, many databases in the public sector, the 25 private sector and elsewhere, and we were very aware 23 1 and -- a range of activities about the sensitivity of 2 very large amounts of personal data and the risks of 3 that getting into the wrong hands. And so I would 4 certainly express the view that information held in 5 databases, whether it's tax affairs, whether it's 6 financial affairs and the bank account, whether it's 7 medical records, social security records, your shopping 8 details held at a retailer, the records of telephone 9 companies, the records of -- education records, right 10 across the spectrum, public and private sector, we were 11 very concerned indeed that personal data should be 12 handled properly, and if there was unauthorised access 13 to such data, it's a matter we took extremely seriously. 14 Q. Thank you, Mr Thomas. You tell us in paragraph 12 that 15 when you started as Commissioner, you were briefed by 16 members of the investigations team of their belief that 17 there were extensive networks of private investigators 18 who were, I paraphrase, breaching Section 55. You touch 19 on that in your first report. 20 Were there any connections with media organisations 21 or were these briefings far more general? 22 A. They were general, but there was a background and I was 23 aware -- and I think it's in one of the witness 24 statements you've had from elsewhere -- that the office, 25 I think back in the mid-1990s, had taken action against 24 1 a private investigator who was supplying information to 2 media sources. There had been a case -- I think it was 3 in northwest London. The press release I hadn't seen 4 until last week, but the press release was from my 5 former office and it's in the bundle which you've 6 received from the Press Complaints Commission, and I was 7 aware of that as background. 8 I was also aware -- and this happened in the first 9 two or three months of my time as Commissioner -- that 10 the Select Committee was holding the hearings looking 11 into these matters, and they are documented in the first 12 of our reports. If I can just draw attention to the 13 what was said there, which sort of set the background. 14 This is paragraph 4.10 of our report, "What price 15 privacy?" and this refers to previous press reports. 16 The Guardian report in September 2002, indicating 17 a data black market and highlighting a private detective 18 agency which had been found to have sold information 19 from police sources to the News of the World, 20 Daily Mirror and Sunday Mirror. 21 Second, a Sunday Telegraph report in December 2002 22 that private detectives routinely tapped private 23 telephone calls for the tabloid press, with some 24 agencies deriving the bulk of their income from such 25 work and such clients. 25 1 A report in the Times of January 2003 that the 2 Inland Revenue's human resources director admitted that 3 there was evidence to show that some employees had sold 4 confidential information on tax returns to outside 5 agencies without identifying the agencies concerned. 6 So that was background, if you like, from the time 7 before I started. As I was starting, the select 8 committee was looking at some of these matters, and this 9 was, again, recorded in paragraphs 4.7 to 4.9 of our 10 report, "What price privacy?" 11 Q. I'll just give the page. 00298. It's under our tab 4. 12 A. And if I can just -- yes, 4.11, we then sort of sum up 13 what was going on there and we say: 14 "It's hardly surprising that the Select Committee 15 concluded that these intrusive methods of data gathering 16 amounted to 'a depressing catalogue of deplorable 17 practices'." 18 And so I was aware both from my general knowledge as 19 to what I was being told when I arrived at the office 20 that when the team said, "We think there are networks of 21 people out there doing this sort of thing" -- that was 22 the sort of briefing which I was getting. 23 Q. Thank you, Mr Thomas. 24 Paragraphs 13 and 14 of your first witness statement 25 deal quite briefly with Operation Motorman. I'm going 26 1 to chart the following course through your witness 2 statements just to see where your evidence leads. 3 We know from other evidence that the search which 4 led to Operation Motorman took place to Saturday, 5 8 March 2003. Do you follow me? 6 A. Yes. 7 Q. I'm going to invite you now to jump through to exhibit 8 RJT51, which is to your sixth witness statement, which 9 is a file note, I believe, or a diary entry. 10 A. I have the original books here, which may be helpful to 11 show it in context. RJT51? 12 Q. Yes, thank you. 13 A. Yes. 14 Q. If we can frame it chronologically, you tell us that you 15 think this was completed on 10 March 2003, which was 16 obviously the following Monday; is that right? 17 A. I can't be certain of that. It's simply a note in my 18 personal notebook of my tasks to do, various things for 19 my secretary with others in the office and there's 20 a note there which I -- it predates the page which is 21 dated 10 March 2003, which suggests that it either was 22 10 March or possibly the previous week, but I'm pretty 23 sure it was 10 March. 24 Q. If Mr Owens' evidence is right -- and I'll come to it -- 25 it must have been before your meeting with him. Can we 27 1 just see what you say on RJT51? You've written: 2 "Francis [underlined] newspapers/[is that right?] 3 Section 55." 4 A. That is correct. 5 Q. What inference do you draw from that, trying to exclude 6 all subsequently acquired knowledge? 7 A. That tells me that I needed to have a conversation with 8 Francis Aldhouse about newspapers vis-a-vis Section 55. 9 So something had triggered the need for me to have 10 a conversation with him about newspapers. 11 Q. Yes. Do we draw the inference that you must have learnt 12 that this raid had taken place on 8 March before you 13 completed that note? 14 A. I think that's very likely. 15 Q. Yes? 16 A. I mean, it is possible that I was told the previous week 17 that they were going to do the raid. I don't have any 18 clear recollection at all. But it was either it was 19 about to happen or had just happened. 20 Q. "Appointment of AC"? What does that mean? 21 A. Oh, that's appointment of assistant commissioner. We 22 were going to be appointing a new assistant 23 commissioner. 24 Q. What about the last entry there, "Risk"? 25 A. That was to do with the need for a new risk register for 28 1 the office to improve our risk management arrangements. 2 Q. So it's irrelevant for our purposes? 3 A. Indeed. 4 Q. Why did you speak to Mr Aldhouse about this? 5 A. I have no idea or recollection. I mean, simply, you 6 know, he was my deputy and this was something which had 7 come to my attention, but I can't help you, I'm afraid, 8 beyond simply noticing it was on the radar at that time. 9 Q. One reason might be that he was your deputy, it was 10 a natural thing to discuss with him because after all, 11 it was potentially an important issue? 12 A. Oh yes. 13 Q. I must ask you this general question, Mr Thomas. 14 Presumably you have read the transcript of Mr Aldhouse's 15 evidence? 16 A. Yes. 17 Q. Do you have any comment you would like to make about his 18 evidence which might assist the Inquiry? 19 A. Well, I think it's to summarise what he was saying that 20 he was not heavily involved in these matters. Francis 21 Aldhouse had been the Deputy Commissioner for some 18 22 years when I started, and he was my deputy for about 23 another two and a bit years until he took retirement. 24 He had reached full retirement age. He was primarily 25 focused on the policy aspects of data protection, both 29 1 domestically and at the European level, and he didn't 2 have very much of a hands-on operational engagement. 3 One of the reasons I wanted to make some changes was 4 that I felt there was a need to have a much more active 5 style of management across the office, but I think 6 Francis was somewhat disengaged on these matters. He 7 wasn't excluded altogether, and there are some items of 8 written evidence which show that he played a part in 9 some of these matters, but it is also the case that he 10 had had some sort of falling out with Alec Owens, 11 some -- I think probably one, two years before 12 I arrived, he had -- I think it was no secret across the 13 office. He had issued a formal reprimand to Mr Owens 14 and that had not gone down very well with Mr Owens and 15 it was common knowledge there was not very good feeling 16 between the two of them. 17 Q. There was an informal meeting, is this right, where at 18 least you were there and Mr Owens was there and possibly 19 others were there a few days later? Are we agreed about 20 that? 21 A. Well, I can recall the meeting when Mr Owens and some of 22 his colleagues came to me with cardboard boxes of 23 materials, and this was clearly the stuff which had been 24 seized. Whether that was on 10 March or whether it was 25 some time later, I simply can't be sure, but it was 30 1 pretty soon after the raid and it could even have been 2 on 10 March. 3 Q. The date isn't going to matter. Mr Owens put it a few 4 days after the raid. 5 A. At that time, they came to me and I think in my written 6 statement to you, my first written statement, I said 7 they came in with what I described as a treasure trove. 8 I'm not sure whether that was their language or mine but 9 it was certainly a wealth of material which they had 10 seized. 11 Q. And was Mr Aldhouse there? I think your evidence is 12 you're not sure? 13 A. I'm simply not sure. 14 Q. Did Mr Owens demonstrate the audit trail, if I can so 15 describe it, which led from the newspapers through the 16 journalists to Mr Whittamore, Mr Whittamore's blagger, 17 the target of the request, the nature of the 18 confidential information obtained and then the fact that 19 the newspapers were then invoiced and paid for that 20 information? Did he, in general terms, demonstrate 21 that? 22 A. In general terms. I wouldn't use the language "audit 23 trail", but in general terms the message was: there's 24 a lot of material here which connects the various 25 players together and I do recall -- I think I used it in 31 1 my witness statement -- the phrase "spider's web". 2 There may have even been a diagram of some sort put up 3 to show how they all linked together. So certainly that 4 was the general message, that there was a lot of 5 activity which began to show how the various players 6 were interconnected. 7 Q. And obviously you had a sense of the scale of the 8 material, the use of the phrase "treasure trove", but 9 did you also have as sense of the seriousness of all of 10 this in terms of the nature of the confidential 11 information which was in question? 12 A. Yes, very serious, but alongside many other serious 13 matters, if I can put it that way. I was dealing with 14 a wide range of issues. It was serious, but I didn't 15 have the sort of -- I don't want to give the impression 16 that this was earth-stopping time, the entire office was 17 suddenly focused on what had come out of this. This was 18 something which was interesting. It indicated that 19 their suspicions had been vindicated and would lead to 20 prosecutions in due course. 21 Q. Can I ask you, please, about your fourth witness 22 statement, paragraph 3, which is our tab 59, page 33459. 23 You really cover the first five lines. You say you 24 recall congratulating Mr Owens and team for a job well 25 done; is that right? 32 1 A. That's correct. 2 Q. You don't recall any course of action being formally or 3 informally recommended by Mr Owens or anyone else, let 4 alone being bemused? 5 A. That's correct. I certainly refute that. I don't think 6 I'm a person do get bemused by anything, frankly, and 7 I was interested in what they had found. 8 Q. Then you say specifically: 9 "I do not recall any proposal, on that or any other 10 occasion, that any journalist, nor indeed any other 11 customers of Steve Whittamore and his associates, should 12 be investigated." 13 Are you saying that the matter was simply left 14 silent? 15 A. Well, it was not a matter with which in any way I was 16 engaged. I have absolutely no recollection whatsoever 17 of discussing the investigation of journalists or 18 instructing anyone one way or the other about the 19 investigation of journalists. This was simply not in 20 any way a matter with which I was involved or discussed, 21 and I am pretty sure I would have remembered if I had 22 been asked or in any way involved in that sort of 23 activity. 24 Q. Was it your expectation then that the investigation 25 would take its own course, would follow the evidence 33 1 where it led, and if journalists needed to be 2 investigated, they would be? 3 A. That's exactly right, Mr Jay. I mean, I was not 4 involved in the detailed operational activity of that 5 team. I had only been in the office some two or three 6 months at that time. My understanding was that they 7 would go ahead and do whatever needed to be done to 8 bring the case forward. 9 Q. Paragraph 3 continues, towards the end: 10 "One of my central memories of that meeting is 11 a recognition of the challenge presented for a very 12 small team by the sheer bulk of the evidence, without 13 any suggestion that even more should be obtained." 14 So there was a concern that this was a -- or likely 15 to be a substantial exercise for your team; is that 16 correct? 17 A. Yes. I think I was certainly given the very clear 18 message that this was a lot of material there which 19 would need going through in great detail, and I assumed, 20 if that's the right word, that they would get on with 21 the job. 22 Q. I should deal with the final sentence of paragraph 3: 23 "I do not recall whether Francis Aldhouse was at 24 that meeting, but I do not ever recall hearing the words 25 attributed to him." 34 1 So your evidence is that you certainly don't recall 2 Mr Aldhouse saying words to the effect: "We can't take 3 on the journalists, they're too big for us"? 4 A. I have no recollection at all of him or anyone else 5 using that sort of language. 6 Q. But in paragraph 4 you do recall -- I think that should 7 say "us": 8 "... being told that the materials which had been 9 obtained would be evaluated so that appropriate 10 prosecutions would follow where the evidence led." 11 A. That's absolutely right. 12 Q. Then this sentence: 13 "The targets for prosecution were seen as 14 Steve Whittamore, his three or four private investigator 15 associates and the corrupt officials who were supplying 16 confidential information." 17 That suggests that there was some sort of confine or 18 restriction on the targets and you wouldn't look wider 19 to the journalists, doesn't it? 20 A. I think you're reading too much into my language there. 21 All I'm saying is that the team, as I understood it, had 22 been investigating and had been prosecuting various 23 people who were private investigators, and this was the 24 main focus of that team's activities, and so either then 25 or at some later stage, I can't recall -- but I mean, 35 1 that was the central thrust. I have, on many occasions 2 on this, both for this Inquiry and in the discussions 3 and debates of 2005, 2006, 2007, 2008, used the language 4 that our targets were the investigators because they 5 were the middlemen and I used the language we are, if 6 you like, comparing them to the drug dealers. All I'm 7 saying is that was not to exclude anybody else, but they 8 were our central target. 9 Q. Was not Mr Owens at least communicating to you his 10 message: "Look, we have good evidence against everyone 11 involved in this supply chain going right up to the 12 journalists and to the newspapers; let's investigate 13 them"? 14 A. Well, that was never put to me. I don't recall him or 15 anybody else saying, "We must go and investigate the 16 journalists." It was simply: "Here is this mass of 17 material. Let's go and see what we can make of it." 18 Q. But the journalists were linked into the spider's web, 19 as indeed were their employers, because the documentary 20 evidence existed to tie them in, didn't it? 21 A. Well, that's right, and when we come on to looking at 22 the legal papers, either now or later, I mean, we'll see 23 that clearly my legal team, who were increasingly on the 24 lead on this, were very much keeping alive the option of 25 prosecuting journalists, so I don't know if now is the 36 1 right time but we can go through the legal papers which 2 show very clearly that throughout 2003, right through 3 2004, even early 2005, the question of what to do with 4 the journalists was a very live question. 5 Q. In paragraph 6 of this witness statement at 33460 -- 6 this is set out in your third statement and you're 7 repeating it here: 8 "I do not have any recollection or awareness 9 whatsoever of preventing any investigating officer or 10 anyone else from interviewing any journalist or not 11 allowing such interviews or further investigations." 12 Is that correct? 13 A. That's absolutely right and it's very important that 14 I should refute this. I had neither the rationale nor 15 the opportunity, and I certainly have no record, no 16 memory whatsoever. It's not the sort of thing the 17 Commissioner does, to say to people: "You must either 18 investigate [so-and-so or such a class of person]", or 19 not do so. This is an operational matter. 20 Q. Unless, of course, you had made some sort of policy 21 decision at an early stage not to pursue the 22 journalists? 23 A. There was no such policy decision, certainly not at the 24 early stage. As we come on to the events of November 25 2003, where we had received advice from our external 37 1 counsel about the cost and the resource implications of 2 going further, that's when I went to the Press 3 Complaints Commission. It is possible that Mr Owens has 4 somehow confused or conflated all the dates and 5 interpreted that as some sort of policy or some sort of 6 instruction, but that was not the case. 7 Q. Can I invite you, please. to look at your second witness 8 statement, which is under our tab 53, and move to 9 paragraph 14 of that witness statement, which is 10 page 07723. 11 The first sentence touches paragraph 6.8 of the 12 report, which I'm going to deal with in a short moment. 13 I'm more concerned with the second sentence, where you 14 say: 15 "In fact, I am not aware that any consideration was 16 actively given to prosecuting journalists by the ICO or 17 the CPS when the initial charges were laid. This would 18 doubtless have reflected ..." 19 And you set out three matters, the first of those 20 which doesn't relate to the ICO: 21 "The more serious matters of corruption on the part 22 of various employees within the police, DVLA et cetera." 23 (b): 24 "The focus on those at the heart of the organised 25 trade in confidential information." 38 1 That's private investigators and their agents, so 2 that is relevant to you. Then you say: 3 "The much greater challenges in bringing 4 a successful prosecution under Section 55(1)(b), which 5 is the procuring offence." 6 So aren't you saying there that certainly at the 7 point when the initial charges were laid, you weren't 8 aware that any consideration was actively given to 9 prosecuting journalists? 10 A. The word to emphasise in that sentence was "actively". 11 I wasn't aware that anybody was actively considering one 12 way or the other whether to prosecute journalists. 13 I wrote that statement on 16 October. Since then, 14 I have seen the file from our legal department which has 15 come to light much more recently, and that shows that in 16 fact active consideration was being given, because at 17 the conference with counsel in October 2003, there was 18 discussion about this matter. The in-house lawyer, 19 there's an attendance note from her -- we'll come to 20 that later -- which discusses the resource implications. 21 I'm simply saying I wasn't aware of that when I wrote 22 this statement. That remained the case. 23 Q. Okay, well, we'll come to -- 24 A. Then I give my three -- (a), (b) and (c), they are my 25 speculation, as it were, as to why that might have been 39 1 the case. 2 Q. Didn't those considerations which you set out under (b) 3 and (c) -- we're not concerned so much with (a) -- apply 4 at all material times and colour your thinking at all 5 material times? 6 A. I think I became more aware of the implications of this 7 case towards the end of 2003, and that's when I went off 8 to the Press Complaints Commission, but I can't really 9 say that I was giving very active consideration to these 10 matters, ie I don't think really until much later that 11 I gave any sort of serious consideration to why it was 12 that we weren't going for the journalists. I was at all 13 times clear that, you know, the main focus of our case 14 was to be focused on the middlemen who are organising 15 the illegal trade. 16 Indeed, if we come on to talk about the two reports 17 my office published, that even then was still very much 18 the focus of our reports. 19 Q. We know as a fact, don't we, that the journalists were 20 never interviewed by your office? Are we agreed about 21 that? 22 A. Yes, that's my understanding. I've discovered in the 23 last two weeks that it appears to be the case that the 24 Metropolitan Police did investigate four journalists. 25 I don't know if you'd like to turn up -- 40 1 Q. That's correct. That's in RJT49 and that was in the 2 context of Operation Glade. 3 A. No, it's the materials you've received I think last week 4 from the -- my former office. If I can just turn up 5 that, because I think it does shed some light onto this. 6 Q. We will come to it, but I want to be careful to 7 differentiate between what the police were doing as part 8 of their functions under Operation Glade and what you 9 were doing. Your office did not -- 10 A. You are taking me beyond my personal knowledge, but I, 11 at some point, became aware that in effect we'd handed 12 over the conduct of the case to the Metropolitan Police 13 because of the more serious matters of corruption inside 14 the police service itself, inside DVLA, inside telephone 15 companies, and for that reason, both the lead conduct of 16 the case and the evidence had been handed over to the 17 police and the Crown Prosecution Service. 18 Q. I'm going to separate out, though, what the police were 19 doing under their general powers, enforcing the criminal 20 law, and what you were doing in relation to data 21 protection. The police were concerned with corruption 22 and that was the focus of Operation Glade. You had no 23 jurisdiction there, did you, Mr Thomas? 24 A. Well, not jurisdiction, but I think -- my understanding 25 was that there was a feeling that we had to co-operate 41 1 with those matters. They were, if you like, a much more 2 serious matter and in effect, I think -- and the 3 paperwork which I've now seen brings this out -- we were 4 in sort of second place, as it were, waiting for those 5 cases to be brought forward. 6 Q. Whereas it is true that you were awaiting the result of 7 the prosecutions in Operation Glade, those matters were 8 outside the bailiwick of the ICO; are we agreed about 9 that? 10 A. Outside the direct bailiwick, yes, but related. 11 Q. Right. 12 A. I've made the point many times that where you have 13 a Section 55 offence, there are going to be several 14 actors. 15 Q. Yes. 16 A. And if there is corruption and dishonest behaviour which 17 carries a stronger sentence, then it is inevitable, 18 I think, that the case will be handed to the police and 19 to the Crown Prosecution Service. 20 Q. As regards data protection and Section 55, that was 21 solely within the jurisdiction of the ICO, wasn't it? 22 A. Yes. I mean, the CPS can bring a prosecution, but we -- 23 very much our central responsibility. 24 Q. So if your office was going to bring prosecutions 25 against journalists or their proprietors for breaches of 42 1 Section 55, at the very least the journalists would have 2 to be interviewed in order to obtain sufficient 3 evidence; would you agree with that? 4 A. I'm not sure. I'm not a criminal lawyer. I never 5 practised criminal law. I can't ever recall giving 6 serious consideration to that point until the last three 7 or four weeks, and I'm reading the papers, the advice 8 from our counsel. He says somewhere there is evidence 9 of criminal offences being committed by journalists, if 10 not others concerned in the media. So at that point, 11 which was October 2003, he was of the view that there 12 was sufficient evidence for prosecutions against 13 journalists. 14 As I understand the criminal process, it will be 15 customary to at least seek an interview with 16 a journalist before bringing a prosecution, but that 17 would have been much later, as I understand it, in the 18 process. If there had been a decision that we were 19 going to prosecute a journalist, then at that stage we 20 might have sought an interview. We had no power to 21 compel them. 22 LORD JUSTICE LEVESON: I'm not so sure about that, Mr -- 23 A. I'm out of my depth, not being a criminal lawyer, I'm 24 afraid. 25 LORD JUSTICE LEVESON: Have you moved from March? Because 43 1 I have a question about March, if I could go back to 2 that. Is it convenient for me to? 3 MR JAY: Yes. 4 LORD JUSTICE LEVESON: But only if you've finished March. 5 MR JAY: Yes, certainly. Carry on with March and then 6 I will -- 7 LORD JUSTICE LEVESON: I just want to ask one question, 8 because I am puzzled about something, Mr Thomas. You've 9 made it clear that you weren't really focused on whether 10 it should be journalists or newspapers that were 11 investigated; you just let Mr Owens get on with the job. 12 That's, I gather, what you've been saying this morning. 13 But the very first word that you write down about 14 this enquiry, according to what you've told us this 15 morning, is the word "newspapers/Section 55", and I just 16 wonder whether that doesn't identify that you were very 17 clearly focused on newspapers, in other words what they 18 were doing -- 19 A. Yes. 20 LORD JUSTICE LEVESON: -- from that moment. And if that is 21 right, I don't understand why that wouldn't be a matter 22 of great interest to you from that moment on. 23 A. Well, you are right, sir. You know, clearly I was aware 24 that this was a matter which was serious and I was aware 25 that there were implications straight away of where this 44 1 might lead, but I think I'm saying that throughout 2003, 2 from March 2003 right through until November, my 3 assumption was that we'd be prosecuting wherever the 4 evidence led, and I think probably my assumption was 5 that we would be prosecuting the investigators and it 6 was quite likely that we'd also be prosecuting the 7 journalists. 8 But what I am saying is I personally did not give 9 any serious consideration to that matter, and I cannot 10 recall any conversation or discussion when that 11 particular issue was being discussed. So I have to 12 speculate because my memory is not good enough, but my 13 speculation is when I was told some time in October 14 or November that it was going to be too expensive or too 15 difficult to pursue the journalists, that's when I went 16 off to the Press Complaints Commission. But throughout 17 that period from March to October, as far as I was 18 concerned, it was being handled in what I can broadly 19 call the normal way by those who were charged with 20 enforcing Section 55. 21 LORD JUSTICE LEVESON: But I would have thought that if the 22 ICO was going to have a go at newspapers or journalists, 23 that has reputational risks of a monumental size and you 24 would want to be kept informed. Is that not right? 25 I mean, explain. Help me. 45 1 A. There were many, many other matters going on at that 2 time, sir. I've tried to make a note of some of the 3 things. I was -- we had the major debate about identity 4 cards just starting. I was seeking to reorganise the 5 office at that time. We were establishing offices in 6 Belfast, Edinburgh and Cardiff. Major preparations for 7 freedom of information. A big programme to simplify our 8 approach to data protection. A brand new employment 9 code of practice which had been heavily criticised in 10 the press and elsewhere. We had a major problem with 11 bogus agencies, people purporting to be our office and 12 receiving money from other organisations. We had an IT 13 system which was causing us trouble, which was being 14 installed. We had a major row with the audit commission 15 about the way they were carrying out their functions. 16 All I'm saying, sir, is that those were just some of 17 the things I was dealing with. Yes, you're right to say 18 at the back of my mind was the thought that we have 19 a big case coming on here with the media. The evidence 20 I gave you on Tuesday of this week records Jean Lockett 21 coming to the September meeting of the senior management 22 group and reporting then that things were happening with 23 Operation Motorman and publicity could be expected. 24 But at no time throughout this situation did I think 25 we were either going to be prosecuting journalists or 46 1 not doing so. I just made the assumption is that it was 2 going to be pursued in the normal way. 3 MR JAY: May I try and sum up the position in this way? 4 Given two facts which we know, Mr Thomas -- the first 5 fact is that the journalists were never interviewed by 6 your office and the second fact is that such an 7 interview would be a sineqa non to a prosecution, out of 8 fairness to the journalists on the one hand, in order to 9 obtain further evidence -- does it not follow that 10 either there was a policy decision not to pursue that 11 course or, alternatively, there were operational 12 failures or decisions by the investigators not to carry 13 out an elementary step, namely to interview? 14 A. I don't think it's like that. If there was a policy, it 15 was not one which I had any hand in, one which I knew 16 about, which I made or which I was told about -- 17 Q. That's not quite an answer to the question. Does it not 18 follow, either one or two, and then I'll allow you to 19 say what you wish. 20 A. I'm not sure even then it completely follows because -- 21 perhaps I'm wrong on this, but I mean, if there could 22 have been interviews of journalists at a closer time to 23 the actual prosecution, then is that not a third option? 24 I don't know. 25 Q. I don't follow it, Mr Thomas, at the moment. Is it not 47 1 either/or? If there's a third option, formulate the 2 third option so that I can write it down and understand 3 it, please. 4 A. If a decision had been made that we were going to 5 prosecute a particular journalist, then my understanding 6 is that it would be necessary to interview that 7 journalist before that prosecution were to be brought. 8 Q. Yes. 9 A. But I'm not convinced that had to happen in that period 10 between March, when the raid had taken place, 11 and October, when the discussion with the external 12 lawyer took place about the prosecution of journalists. 13 I can only rely on what I see in writing, but he says 14 there there is evidence against journalists. 15 Q. Normally an interview would be carried out, particularly 16 if sufficient evidence existed, and we know that 17 sufficient evidence existed in documentary form. 18 A. Mm. 19 Q. So at the moment I am thrashing around mentally to see 20 what other alternative there might be beyond a policy 21 decision on the one hand or incompetence in your 22 investigation officers on the other. 23 A. Well, if you want to put it in those terms, I have to 24 put it to the latter, but I am absolutely -- you know, 25 absolutely clear because I wouldn't have done any of the 48 1 things I had done right through 2005, 2006, 2007 if 2 I had thought at any time that I or anybody else had 3 said: "Back off the journalists." 4 Q. Some of the documents you've provided recently, very 5 recently. We're grateful for that. Can I just refer to 6 those quickly? RJT52, please, Mr Thomas. It's your 7 sixth witness statement. You put this forward as 8 suggesting, I think, that the prosecution of the 9 journalists had not been ruled out. Have I correctly 10 understood -- 11 A. Yes, I went through all my notebooks last week or the 12 beginning of this week for 2003, and there I found the 13 top half of that page are my notes of the meeting which 14 I had with the newspaper society. I see there that 15 I talked generally about data protection issues, 16 generally about freedom of information issues, and then 17 about Section 55, and -- it's on the screen, I think. 18 I haven't -- the screen's not working here, but -- 19 LORD JUSTICE LEVESON: Is it turned on? 20 A. -- I've got my own notebook. 21 MR JAY: It's working up there. 22 A. Well, I can't see it closely, but as long as you all 23 have it. 24 MR JAY: You have the original there, so you're in a better 25 position. 49 1 A. I have the original, yes. 2 Q. You say there -- 3 A. "Section 55, enforced law vigorously. Section 55, 4 breach of confidentiality, no new laws." 5 That was a meeting which I think was with David 6 Newell, who I had known previously, who was the Director 7 General of the newspaper society talking about life in 8 general, and my note there tells me that I was recording 9 there that we, if you like, had journalists in the frame 10 and that as of -- this would have been probably the 11 second half of June of 2003, I was conveying the message 12 to him that journalists were in the frame. 13 Q. You had hundreds of journalists, probably up to 400, in 14 your crosshairs at this point, but you weren't taking 15 any positive steps to enforce the rigorously against 16 them at that stage, were you? 17 A. As far as I was aware, my team were doing just that. 18 The matter was, you know, with my investigations team. 19 They were following up this mass of paperwork, and as 20 far as I was aware -- I would have had -- you know, we 21 had team briefings probably once a month and I would 22 have been kept very generally in the picture that the 23 case was proceeding. 24 Q. We'll come to the legal advice in a few seconds. 25 A. No, this is just the general investigators. The 50 1 lawyers, I think, came on the scene a bit later. 2 Q. RJT53, while we're amongst these documents, towards the 3 bottom of the page. We're putting this in 4 around October, I think, 2003; is that right, Mr Thomas? 5 A. Yes, this would have been early October, from the 6 screens in my notebook. 7 Q. You draw to our attention four lines from the bottom: 8 "JL [this is Jean Lockett]: Motorman publicity 9 soon." 10 A. Yes, this is an example, where I actually made a note 11 that at the senior management group meeting, 12 Jean Lockett had come along and had said something about 13 Motorman and I had recorded it as "publicity soon". So 14 that does suggest that the matter was still very much 15 under active consideration, it does suggest that it was 16 going well as far as the office was concerned, and 17 suggests that the options of bringing successful 18 prosecutions were still very much there. 19 Q. It doesn't identify against whom -- 20 A. Exactly. 21 Q. Can we look at some of the legal advice? 22 I was thinking of breaking in about ten minutes, if 23 that's convenient. 24 We have this in a separate file. First of all, 25 we're going to look at the attendance note, meeting with 51 1 counsel 3 October 2003. It's document 48710. In our 2 separate file, which is file 4 of 4, it's under tab 2. 3 This is a meeting with counsel in Birmingham which you 4 didn't attend. 5 A. That's right. It was attended by Karen Nolan, who was 6 the in-house lawyer, Alec Owens and Roy Pollit, who was 7 the other investigator. 8 Q. If you look at the paragraph between the two 9 holepunches, please, we learn that the Metropolitan 10 Police are currently looking at prosecuting Whittamore, 11 Boyall, Maskell and King: 12 "It appears that the charges that will follow are 13 corruption of a public official." 14 Do you see that? 15 A. Indeed. 16 Q. So you are quite entitled to point out -- therefore I'll 17 do it for you -- that the police were not, at that 18 point, considering prosecuting journalists, were they? 19 A. That absolutely appears to be the case. 20 Q. And you're entitled not only to make to point but to 21 underline it, I think, Mr Thomas, out of fairness to 22 you. 23 A. I've only seen this note in the last couple of weeks and 24 I perhaps haven't fully digested it, but that absolutely 25 appears to be the case, that the targets were the four 52 1 people mentioned. 2 LORD JUSTICE LEVESON: Presumably you appreciated that at 3 the time? 4 A. Sorry? 5 LORD JUSTICE LEVESON: When the prosecution started, there 6 were no journalists there. Did you not think about 7 that? 8 A. I wasn't involved in these meetings. 9 LORD JUSTICE LEVESON: No, no, no, not the meetings, but you 10 were alert as to what was going on with the prosecution 11 process? 12 A. Only in very general terms and I have no recollection. 13 Perhaps we'll come on, sir, to talk about what happened 14 in November. This is in October. But what seems to 15 have happened in November is that almost certainly Karen 16 Nolan came to me and said, "It's not going to be 17 possible to prosecute the journalists." 18 MR JAY: We'll see that in a few moments. 19 A. We're jumping ahead a bit, perhaps. 20 Q. We have already looked at the document with Mr Owens, 21 but we see it towards the bottom of 48710, the sort of 22 evidence that at that stage existed in relation to 23 illegal activity. Do you follow me, Mr Thomas? 24 A. Yes, yes. 25 Q. On the next page, 48711, under the heading where 53 1 counsel's name is set out: 2 "With regard to the prosecution of the press, 3 although there is evidence to support a prosecution, 4 a prosecution would not be considered favourable because 5 of the financial aspect." 6 That could be read in one of two ways. Either it 7 could be counsel's view, or it could be counsel 8 reiterating what his instructions were. Do you see 9 that? 10 A. Well, I have read this in the former way. That was him 11 expressing a view. 12 Q. But would it be counsel's business to address the 13 financial aspects? Those are policy matters for your 14 office, aren't they? 15 A. Well, I certainly had never read it in the way you're 16 now suggesting and nor do I do so now, because as far as 17 I'm aware, there was absolutely no such policy and 18 I can't think why there would have been such a policy. 19 What I think comes very clear to me, frankly, was that 20 it was the sheer cost and logistical challenge of going 21 against the press which meant that we should concentrate 22 on the investigators. 23 MR JAY: You're, in effect, by that answer endorsing the 24 policy. It was the sheer scale of -- 25 A. Oh, that came later. I mean at this point -- I think 54 1 from this point onwards counsel was advising: it's going 2 to be a very, very expensive and risky business for the 3 office to go -- but that was -- what I'm trying to 4 say -- and I hope I'm coming across very clearly -- is 5 there was no policy from the outset that we weren't 6 going to go against the press. 7 Q. Are you sure about that, Mr Thomas? Counsel obeys 8 instructions. Counsel does not set out what policy 9 should be. Counsel doesn't know what your resources 10 are. Isn't he there -- 11 A. Well, he's -- 12 Q. Isn't he there merely reflecting what he's been told in 13 his instructions? 14 A. Well, I don't see it that way and I don't know who could 15 have given him that instruction. It didn't come from 16 me. It didn't come from anything of which I had any 17 awareness whatsoever. 18 LORD JUSTICE LEVESON: Then it might just be wrong? 19 A. Who might be? 20 LORD JUSTICE LEVESON: Well, it might be wrong. 21 A. I think, sir, the way I've read this is that he's 22 saying, "You could go against the press, but it's going 23 to be not favourable because of the financial aspect. 24 It's going to, you know, cause such an impact on your 25 resources that it would not be realistic." He could be 55 1 saying that. I mean he was a counsel, I believe, who 2 we'd used regularly. He knew what limited resources we 3 had. So I'm only speculating now, but it seems to me he 4 was saying, "Do you really want to go against the press 5 when you're going to see the implications of -- when 6 you're going to see the cost of doing so? Let's go for 7 our main targets." 8 MR JAY: But if all one needed to do: "Let's cherry pick the 9 best cases of illegality. The friends and family cases, 10 the one or two police national computer cases. We'll 11 interview the journalists in those cases. We might 12 interview the editors." 13 That is a fairly narrow exercise. You can then 14 assess how strong the case is. After all, if the 15 evidence is strong enough, you might even get guilty 16 pleas. Who knows? But isn't this, on any view, jumping 17 the gun? 18 A. Well, by whom? 19 Q. By your office, I would suggest. 20 A. Well, because -- no -- 21 Q. Who put the idea in counsel's mind. 22 A. I think -- as I read this, the thought is -- came from 23 counsel. But I also turn up, a few days later, the 24 telephone -- 25 Q. Yes, this is tab 3, 20 October 2003, page 48714. You're 56 1 going to refer to item 4 at the bottom of the page, 2 aren't you? 3 A. That's the one, yes, where Karen Nolan, the in-house 4 lawyer, is discussing with Bernard Thorogood, the 5 counsel -- shall I read it out? 6 "Prosecution of the press. The scale of the case 7 requires substantial manpower. Several cases and the 8 cost will be excessive, both to investigate and to 9 prosecute." 10 So there is a conversation going on between the 11 in-house lawyer and the external counsel which, again, 12 explores the realistic prospect of being able to go 13 against the journalists. 14 Q. Your evidence is that the policy steer didn't come from 15 you? 16 A. Absolutely not. 17 Q. Okay. 18 A. I'm jumping ahead again, but in November, clearly when 19 this was brought to my attention, I was of the view: "We 20 can't leave it there. I just have to go and do 21 something about this." That's why I wrote to his 22 Christopher Meyer -- we'll come to that letter -- and 23 was very concerned that we should not let the press off 24 the hook. 25 Q. Yes. 57 1 A. What I'm really saying, I suppose, is I'm being told, it 2 appears: "We can't go against the press", and I'm 3 responding: "We can't let the press off the hook. We 4 need to do something about this." And then the next two 5 or three years followed that. 6 Q. But there is an intervening piece of evidence, namely 7 counsel's opinion of 22 December -- 8 A. No, that came some two, three weeks later. 9 Q. Yes, but let me just look at this before we look at the 10 PCC, because it's convenient in this stream of -- 11 A. Well, I do just have to emphasise that that's 12 22 December and I had written to Sir Christopher Meyer 13 in November and had had two meetings with the PCC by the 14 time of this written advice. 15 Q. I promise you, Mr Thomas, we are going to look at -- 16 A. I'm sure we are, but I wanted to get absolutely clear 17 that -- it's important, I think, to see this written 18 advice in context. 19 Q. First of all, Mr Thomas, we can see when it was dated. 20 Did you see the advice shortly after it was given, 21 allowance being made for the Christmas holiday? 22 A. I have no recollection of seeing this advice at any time 23 until the last couple of weeks. 24 Q. Paragraph 5, page 48717. I've read this out before, so 25 no need to read it out again. Counsel is saying that 58 1 there's plenty of good evidence against the journalists, 2 isn't he? 3 A. Yes, indeed. I made that point. 4 Q. Then he says, the third line into 48718: 5 "I understand that policy considerations [that 6 should say] have led to their view [might be 'your 7 view', 'the view'] that enforcement of some sort rather 8 than prosecution is the way forward in respect of the 9 journalists/newspapers. I understand and sympathise 10 with that approach. This is, I believe, the first 11 occasion upon which the scale of the problem has come to 12 light, and it may not be unreasonable to give the Press 13 Complaints Commission the chance to put their house in 14 order." 15 "Policy considerations" there lead straight back to 16 you, don't they? 17 LORD JUSTICE LEVESON: Or your office, to be fair. 18 A. Thank you, chairman, because I -- can I say this very 19 clearly: I take absolutely full responsibility for 20 everything that happened on my watch. I was the 21 Commissioner. Everything that happened, I take 22 responsibility. But I have to distinguish a little bit 23 between the Commissioner who is a corporation's soul in 24 the language of the Act and the Commissioner, 25 Richard Thomas, who is the individual. I'm trying to be 59 1 as helpful as I can to this Inquiry by sharing with you 2 my personal involvement in various matters. 3 When you have a large organisation or large-ish 4 organisation, a lot of things go on which you don't 5 personally know about the detail. So when Mr Jay 6 expresses some surprise, perhaps, that I hadn't seen 7 this written advice, that's not a particular surprise to 8 me because you delegate, you let people get on with 9 their particular responsibility. 10 Q. That wasn't really my point. It's from where the policy 11 considerations -- 12 A. Yes, well, "policy" is a loose word. 13 Q. Can I make it explicit? We know that by the time this 14 advice was written, you had already written to 15 Sir Christopher Meyer, you'd had a meeting with him on 16 27 November, so given that that was the policy steer you 17 were taking -- 18 A. But -- 19 Q. -- by the objective facts demonstrates that the policy 20 considerations referred to here were your policy 21 considerations, weren't they? 22 A. I'm obviously more involved in the situation from this 23 point onwards, but let me say, your know, there is clear 24 evidence that there was not a policy conclusion even at 25 that point. 60 1 My letter to Sir Christopher Meyer says the 2 possibility of prosecuting journalists is still under 3 consideration. His letter to the Times yesterday says 4 that I went to him and I said that prosecutions were 5 likely. I can't recall if that's right or not, but it's 6 clear to me that when I saw him that the possibility of 7 prosecuting journalists was still alive, and therefore 8 it is not the case and certainly was not anyone's policy 9 that we were not going toking prosecute journalists. 10 And if you look at the papers right through into 2004, 11 that option, the possibility of prosecuting journalists, 12 was very much kept alive. 13 Q. But it's not -- 14 A. So -- 15 Q. It's put on ice here, if not in permafrost, isn't it, 16 Mr Thomas? 17 A. I think you're reading too much, frankly, into that 18 phrase, "policy consideration". You're rather assuming 19 that there's some sort of holy writ somewhere and this 20 is the policy. That's not the way my organisation 21 worked and certainly was not the case in this particular 22 circumstance. 23 Q. This is my last question before we break. Your concern 24 was: "Look, if we pursue powerful people, namely media 25 groups and journalists, it's going to cost us a lot of 61 1 money. It's risky. The better course is to involve the 2 PCC, politically or more generally, rather than go under 3 Section 55." That was your thinking, wasn't it, by this 4 stage? 5 A. I want to be absolutely as helpful as I can and I have 6 to distinguish between my memory and my speculation, and 7 I've asked myself: what was it that made me go to the 8 Press Complaints Commission at that particular point? 9 And my speculation -- I can't recall precisely -- is 10 that the lawyers had reached that particular point with 11 the external barrister. We'd had -- they'd come to 12 brief me and say, "It looks like it's going to be 13 extremely difficult to go against the journalists. 14 We're going to go against the investigators." I would 15 have said something like: "We can't leave it there. We 16 must do something." 17 The letter which I sent to Sir Christopher Meyer was 18 actually -- it was drafted for me by somebody else 19 because I've noticed there's a reference which shows it 20 wasn't all my own handy work. So clearly a view was 21 taken: let's see where we get with allowing the Press 22 Complaints Commission to put their house in order. And 23 I think I do stand by what is said in that letter -- 24 I don't have it right in front of me now, but towards 25 the end of that letter, it says something like: "I'm of 62 1 the view that to ..." 2 Can I just look it up? I think it's important to 3 get those particular words. It's my exhibit RJT3, 4 I think. 5 LORD JUSTICE LEVESON: 3? 6 A. Yes, my letter, sir, to Sir Christopher Meyer, 7 4 November. The letter had been drafted for me, but 8 it may have had some amendment. But towards the end of 9 that letter on the second page -- do you need time to -- 10 LORD JUSTICE LEVESON: No, I have it. 11 A. If you read the penultimate paragraph, sir, I mean, 12 that, I think, puts the context clear. 13 LORD JUSTICE LEVESON: It's 00361? 14 A. 361, yes. Shall I read it out? 15 "I am considering whether to take action under 16 the Data Protection Act against individual journalists 17 and/or newspapers. My provisional conclusion, however, 18 is that it would be appropriate first to give the Press 19 Complaints Commission and its code committee the prior 20 opportunity to deal with this issue in a way which will 21 put an end to these unacceptable practices across the 22 media as a whole. This could involve, subject to 23 suitable safeguards, providing you with some of the 24 evidence that our investigations have revealed. 25 Following your review of such material, I anticipate 63 1 this would lead at least to a revision of the code. The 2 approach I have in mind would be consistent with the 3 recommendations of the Select Committee which were 4 addressed to our respective organisations and could 5 provide a more satisfactory outcome than legal 6 proceedings. I believe that approach would also be 7 consistent with your express wish to demonstrate the 8 PCC's effectiveness." 9 Now, that is where I stood, being pulled into this 10 in November -- early November 2003. So in effect, what 11 I'm being told is: it's going to be very, very difficult 12 to pursue the journalists. I'm saying, "I'm not 13 prepared to leave it there. Let's keep open the option 14 of the journalists but let me write to the PCC. " 15 That letter, I think, fairly records the situation 16 as it was at that time, and I would suggest that is not 17 consistent with a -- what you call a grand policy that 18 we're not going to go after the journalists. 19 MR JAY: I see that, Mr Thomas. Thank you very much. 20 I think that might be a convenient moment. 21 LORD JUSTICE LEVESON: Very good. We'll have five minutes. 22 (11.36 am) 23 (A short break) 24 (11.42 am) 25 MR JAY: Mr Thomas, certainly by the time counsel's advice 64 1 was given on 22 December 2003, in line with the 2 direction your office was going, there was no question, 3 was there, of interviewing journalists for the purpose 4 of any possible criminal prosecution? 5 A. That seems right. 6 Q. We learn a little bit more about your thinking from your 7 fourth witness statement, which is under our tab 59, 8 paragraphs 7 and 8, which is on page 33460. That's 9 halfway through paragraph 7. Are you with me, 10 Mr Thomas? You say: 11 "Although I cannot recall any discussion then or 12 later about the actual possibility of prosecuting any 13 journalists, I think that a more general understanding 14 developed that the office would see how the case against 15 the investigators and public officials turned out before 16 actively considering any further enforcement action. 17 I was also conscious that taking action against 18 journalists would be a major logistical, evidential and 19 legal challenge ..." 20 I'll come back to that. 21 "... would almost certainly be strongly resisted and 22 would be very expensive for an offices with very limited 23 resources." 24 Setting aside the cost, of course, counsel was 25 advising on 22 December 2003 that on the face of it, you 65 1 had a good case, wasn't he? 2 A. I wrote that statement, paragraph 7, before seeing the 3 legal papers. 4 Q. Fair enough. 5 A. But I believe the legal papers actually endorse that. 6 When I talk about a general understanding developing, 7 I think the papers right through 2003, 2004 bear out 8 that approach, that clearly it was -- there was 9 awareness as to what would be involved in prosecuting 10 journalists and -- I'm not sure if you want to go onto 11 that later but the paperwork from 2004, I think, is 12 entirely consistent with what I say there. 13 Q. Yes. 14 A. I will actually go on to paragraph 8 of that statement, 15 which -- 16 Q. The question actually was: counsel was advising that on 17 the face of it you had a good case. That's what he 18 said, wasn't it? 19 A. Yes, indeed, but, you know, you don't prosecute every 20 case. We had a phrase in the office, you know, "you 21 have to be selective to be effective", and no doubt, you 22 know, having regard to the very limited resources, the 23 advice was it's not wise to go ahead with this case when 24 we can have the impact against the investigators -- and 25 we'd hope to get a good result there -- and we can use 66 1 this material to put a stop to these practices in the 2 press by other means. 3 I have to say -- and perhaps this is the chance to 4 say this -- I think the steps we did take I think 5 were -- alongside other events, were in fact effective 6 at reducing, if not eliminating, this sort of activity, 7 and I have to say -- and maybe this is with hindsight, 8 but perhaps thank goodness we did not prosecute the 9 journalists. The impact for the office would have been 10 very, very demanding indeed. 11 I don't know when this was or at what point this 12 was, but probably around about 2007, I can recall 13 a conversation along the lines of somebody saying, 14 "Thank God we didn't take the journalists to court. 15 They'd have gone all the way to Strasbourg." In other 16 words, they would have challenged any action we would 17 have taken, we would have gone right to Strasbourg, the 18 Court of Human Rights, Article 10 issues coming in. 19 We'd seen all the material being throwned at us during 20 "What price privacy?" and the bill. 21 When I also look at the note of counsel in 2004, 22 where he records that the police had investigated 23 journalists -- I think I ought to read out that 24 particular paragraph because I think it shows the sort 25 of situation we would have been up against. This is 67 1 document 48761 and I would like to read this out. 2 Q. Yes. 3 A. This is a conference with counsel. On this occasion 4 in January 2005, I was there for part of the meeting -- 5 in fact, the part where this paragraph crops up. If 6 I could read paragraph 9. 7 Q. Yes? 8 A. "BT [that's Bernard Thorogood, the outside counsel] 9 stated that he'd asked counsel in the London case 10 [that's the CPS prosecution, Operation Glade] how the 11 officers in that case had approached the issue of the 12 journalist [I think that's probably meant to be 13 'journalists' plural]. London counsel indicated that 14 the journalists were interviewed and were found to be 15 tricky, well armed and well briefed, effectively 16 a barrel of monkeys." 17 Now -- 18 Q. That cuts a number of ways, doesn't it, Mr Thomas? 19 A. It does, but that is what was being said at that time. 20 Q. Then in paragraph 10, Article 10 issues are addressed, 21 aren't they? 22 A. Exactly that. So I am saying that increasingly -- and 23 I think this came much later in time -- that I was of 24 the view: thank goodness we had not prosecuted 25 journalists because of some of the problems that we 68 1 would have encountered. 2 Q. Even if you'd kept to the police national computer 3 cases, the family and friends cases? Can you imagine 4 what sort of public interest defence might have been 5 risibly raised in that context? Family and friends? 6 A. Well, I have to look at it from all points of view, 7 I suppose, but I can see that the media would not like 8 any of their journalists being prosecuted and I suspect 9 they would, for example, argue there's a public interest 10 in being able to ensure freedom of expression. 11 Now, I don't believe that, I don't accept that, but 12 I -- it's one thing as to whether or not that would be 13 successful, but one can anticipate that that sort of 14 point would have been raised and it would have engaged 15 the office and bogged down the office for many years. 16 So I do take the view that going to the Press Complaints 17 Commission should have been the right course of action. 18 I do take the view that going to Parliament with two 19 reports and getting the law changed was the right course 20 of action. I think those proved to be very effective 21 ways of bringing home to the whole of the national press 22 the total unacceptability of this sort of activity. 23 And I think the fact that virtually every allegation 24 of hacking into databases by the press pre-dates 2006 25 and nothing has come to light in the last three or four 69 1 months appear to have happened after that time. I am 2 not saying it's been eliminated altogether -- this is 3 under the surface, clearly -- but I am saying -- and my 4 successor has said this to Parliament very recently, 5 in October of this year -- that it appears that the 6 press are now behaving themselves in this particular 7 area. 8 So I'm putting that forward, sir, because I think 9 it's important to record that prosecution is not the 10 only way to deal with a particular problem. 11 LORD JUSTICE LEVESON: That must be right. Paragraph 10, of 12 course, reads: 13 "RT confirmed that that was his gut instinct [namely 14 that they would be a barrel of monkeys, presumably] and 15 Mr Thomas confirmed that he felt that if we had 16 seriously thought of prosecuting the media, we would 17 face enormous difficulties." 18 A. That's correct, sir, and so -- what I'm saying is it was 19 not considered actively one way or the other. 20 LORD JUSTICE LEVESON: Is that what it says? 21 A. Yes. It was not -- that's what I'm saying, sir. It was 22 not a conscious decision not to prosecution journalists. 23 If you look later in the bundle, that option is still on 24 the table, and at one point I think the counsel say, 25 "Let's leave that for a later stage." 70 1 MR JAY: But the truth, Mr Thomas, is you say in paragraph 7 2 of the witness statement you were just looking at that 3 the option of pursuing journalists subsequently was only 4 theoretical, which of course by that stage it was. 5 A. I'm sorry, you've lost me. Which -- 6 Q. Your fourth witness statement. 7 A. Oh, sorry. 8 Q. Tab 59. 9 A. Yes. 10 Q. Paragraph 7. 11 A. Yes. 12 Q. At the very end of that paragraph you refer to "the 13 remaining possibility, however theoretical, of 14 prosecuting journalists". 15 A. Yes. 16 Q. So is that was how you were looking at it. 17 A. Well, that's very much the case. Seeing how we got on 18 with the main case, seeing where that led to, and then 19 taking stock at that time. But events proved otherwise. 20 Events turned out otherwise. 21 In one of the papers ... yes, I think it's that same 22 conference in January 2005, I raised the question: are 23 we prejudicing ourselves by delay? And counsel advised: 24 "No, you're not. You can come back to this at a later 25 stage." 71 1 I'm sorry, this is in 2004. This is when -- this is 2 document 48740. This was a note by the new in-house 3 laywer, Phil Taylor, on a meeting with me on 4 August 4 and on the second page, I think this brings out why 5 I wanted this to be a priority for him and the last 6 paragraph reads: 7 "RT [that's me] stated that in addition, what he 8 wanted to be in a position to do as well as bringing 9 proceedings would be to write to the various journalists 10 and editors involved to highlight to them the new annex 11 to the Press Complaints Commission code of practice, 12 together with drawing their attention to the fact 13 they're incredibly lucky not to have been prosecuted in 14 this respect, but in any event, it is something that can 15 be dealt with at a slightly later stage." 16 Q. But that was a threat that you were, perhaps in 17 a slightly empty way, if I may say so, delivering to the 18 journalists. The reality is that (a) this was never 19 seriously considered -- see the note which Lord Justice 20 Leveson has just referred you to -- and (b) at this 21 stage, insofar as it was a possibility at all, it was an 22 entirely theoretical possibility. Wouldn't you agree 23 with those propositions? 24 A. Totally agree. 25 Q. You would agree? 72 1 A. It was a theoretical one, but it was not a dead 2 possibility. 3 Q. It was as dead as it could possibly be, Mr Thomas -- 4 A. No, because we hadn't -- 5 Q. -- both in your mind and in practical terms. 6 A. No, we hadn't had the outcome of the case. The case 7 didn't go to trial until 2005, so we were keeping open 8 the possibility, but it was not a live possibility, if 9 I can put it that way. 10 Q. Yes. Because in your first report, which is under our 11 tab 4, RJT1, paragraph 6.8, page 00708 -- we've reached 12 the position in chronological terms that the four 13 prosecutions, the subject of matter of Operation Glade, 14 had hit a rather large iceberg in the form of 15 Blackfriars Crown Court. All four, I think, got 16 conditional discharges. 17 A. (Nods head) 18 Q. That, of course, had certain consequences for Operation 19 Motorman, and we can quite see why a policy decision was 20 then taken to discontinue Operation Motorman in due 21 course. Are you with me, Mr Thomas? 22 A. Yes. 23 Q. Then you say in 6.8: 24 "This was a great disappointment to the ICO, 25 especially as it seemed to underplay the seriousness of 73 1 Section 55 offences. It also meant that it was not in 2 the public interest to proceed with the ICO's own 3 prosecutions." 4 Well, we can agree with that proposition so far. 5 "Nor could the Information Commissioner contemplate 6 bringing prosecutions against the journalists or others 7 to whom confidential information had been supplied." 8 May I suggest to you that that is possibly slightly 9 overstating the position, that the policy decision had 10 already been taken, there was a theoretical 11 consideration only of prosecuting journalists after that 12 policy decision had been taken and therefore it might 13 not be quite right to say that prosecutions against the 14 journalists could be contemplated after April 2005. 15 Would you agree? 16 A. Well, that may slightly overstate the case, in your 17 language, but I do believe that it is entirely 18 consistent with everything I've said to this Inquiry. 19 I don't accept that there was a "policy decision". 20 I don't accept that we abandoned the possibility of 21 prosecuting the journalists. It was only after the 22 outcome of the Blackfriars trial that not only did we 23 have to abandon our own prosecution some two months 24 later, but also that completely extinguished any 25 possibility whatsoever of prosecuting journalists, and 74 1 I think that although it might be slightly overstating 2 it because I accept that it was not a very real 3 possibility, nevertheless it was only at that point -- 4 I'm quite clear about this -- only at that point, after 5 the Blackfriars trial, was the possibility of going 6 against journalists completely extinguished, and what we 7 had been pursuing in the meantime was other means of 8 trying to prevent this sort of unacceptable behaviour. 9 And I do need to really emphasise this, Mr Jay, 10 because you asked me at the beginning about the various 11 functions of the office. 12 Q. Yes. 13 A. We're primarily not a prosecuting authority. That was 14 almost on the side. One of our main functions was to 15 promote good practice, to prevent breaches of the data 16 protection legislation. And so increasingly, from my 17 initial encounters with the Press Complaints Commission 18 and right through the two or three years that followed, 19 I was very clear in my mind that the emphasis on 20 everything I was doing was the prevention of this sort 21 of activity recurring any further. 22 Q. We'll come to the other pieces of enforcement action 23 within your -- 24 A. This is important stuff because -- 25 Q. Of course, of course, and I'm going -- in time, we will 75 1 deal with it fully. 2 A. It's important stuff also to point out the limitations 3 of prosecutions. Not only had the case which we had 4 brought taken a great deal of resource; it had resulted 5 in conditional discharges, which led to a very perverse 6 outcome in all these respects. So I think that does 7 rather highlight that a criminal prosecution and 8 a conviction is not necessarily by any means the full 9 story. 10 Q. The evidence you gave to the Select Committee on these 11 matters -- that's the Culture, Media and Sport 12 Committee, under our tab 80. I note that my copy does 13 not have the URN numbers, which may be my deficiency and 14 no one else's, but we can work from the pagination at 15 the top right-hand side of tab 80. 16 LORD JUSTICE LEVESON: Or the question numbers. 17 MR JAY: Yes, it's question 40 then. EV21. 18 A. Is this the Select Committee of March 2007? 19 Q. It is indeed. 20 A. Yes. 21 Q. Question 40 was: 22 "I understand it's a breach of the law not just for 23 a person who legally accesses the database. It's also 24 a breach of the law by the person who commissioned them 25 to do so. If there was evidence the journalists had 76 1 paid these people to access databases illegally, they 2 themselves would be breaking the law. Did you 3 investigate that?" 4 Then your answer is: 5 "Yes." 6 But did you investigate that? 7 A. I think the "yes" there was a digesting of the question, 8 rather than precisely answering the particular question. 9 I think it was just a pause answer rather than: "Yes, we 10 did investigate journalists", and I would not want to 11 read too much into that particular single word by itself 12 there. But I don't think I was saying, "Yes, we 13 investigated journalists", but yes, in a more general 14 sense, we were looking at everything that was going on. 15 Then I went on to describe the various issues. 16 Q. To be fair to you, that may well be right, because you 17 say: 18 "The offence is cast in terms of obtaining, 19 disclosing and procuring." 20 So because there was wrapped up in the question at 21 least two propositions, you weren't necessarily 22 addressing the final one, "did you investigate"? 23 A. I think you're dissecting that exchange far more closely 24 than it bears. 25 Q. I'm trying to help you actually, Mr Thomas. 77 1 A. Well, I'm trying to be as open, as clear and as 2 straightforward as I possibly can be, but I don't 3 think -- I've not thought about it before. I don't 4 think that was a "Yes, did you investigate that". In 5 the general sense, we investigating everything but did 6 we specifically go and interview journalists? The 7 answer is no, but that isn't really what they were 8 getting at. 9 Q. Lower down, level with the lower holepunch: 10 "We had hard documentary evidence of what they had 11 done ..." 12 That of course, the "they", the pronoun, is the 13 investigators? 14 A. Yes. 15 Q. "... and indeed that led to a guilty finding. We were 16 going to wait ..." 17 Did it, though? 18 A. I'm sorry? 19 Q. Did it? Your Operation Motorman was discontinued 20 against the investigators, wasn't it? 21 A. No, but the guilty finding was the guilty finding 22 against Whittamore at Blackfriars Crown Court. 23 Q. Yes, but not in relation to any data protection issue? 24 A. Yes, it was. The conviction was for Section 55 at 25 Blackfriars Crown Court. 78 1 Q. I thought that the conviction on 19 April 2005 was for 2 corruption? 3 A. No, no, no, no, no. He pleaded not guilty and it was 4 perfectly clear now there was some sort of plea 5 bargaining. He pleaded guilty to Section 55. 6 Q. I'll look at that an appropriate time. It certainly 7 wasn't my understanding, but it may be that my 8 understanding is incorrect. 9 Then you carry on: 10 "We were going to wait and see what the outcome of 11 that case had been before taking any further action." 12 And then, lower down the page, you describe what the 13 nature of the information was and you say, four lines 14 down, I would suggest correctly: 15 "So there was what I might call hard prima facie 16 evidence." 17 Do you see that? 18 LORD JUSTICE LEVESON: Three lines above the bottom of the 19 page. 20 A. Yes, indeed, I have it, yes. That's right. 21 MR JAY: That's probably a correct characterisation of what 22 the evidence amounted to. 23 A. That's -- 24 Q. In the sense, of course -- 25 A. That's exactly as I did and do see it, hard prima facie 79 1 evidence. When we come on to discuss the content of our 2 reports, I will say that the reports contained hard 3 prima facie evidence of offences. 4 Q. Yes, and then you say: 5 "But equally, to bring a prosecution for the offence 6 of procuring is never going to be easy. I would not 7 disguise that from anybody. In that particular case, we 8 were unable to proceed [I think it should say] with any 9 further legal action." 10 That, of course, is after the events of April 2005. 11 The next question from the chairman: 12 "Could I press you on that? Because you're 13 suggesting to us that you did have evidence which might 14 well have been of sufficient quality to enable 15 a prosecution but you did not proceed because you were 16 advised it might be against the public interest. Why 17 should it be against the public interest? 18 "Because it would be, essentially, a waste of time 19 and effort for my organisation but also if we were to go 20 to the courts, it would be back to the magistrates' 21 court and bring prosecutions. We would have to decide 22 which of the journalists to prosecute. Should we go for 23 the whole lot or sum? And the strong advice from our 24 counsel was that we should not and could not proceed 25 with such prosecutions. It would be attracting severe 80 1 criticism within the court system if we were to go any 2 further." 3 To be clear, Mr Thomas, you're looking there at the 4 public interest decision after April 2005, not before, 5 aren't you? 6 A. That -- what I'm talking about there is the advice we 7 received on 27 May 2005 -- 8 Q. Correct. 9 A. -- where there was a conference with counsel as 10 documented here -- 11 Q. We can take it very shortly -- 12 A. I have a clear memory of that. That's why when I was 13 talking to the Select Committee, that's exactly what 14 I was referring to. 15 Q. Because by the time there were any conditional 16 discharges against the four investigators in relation to 17 Operation Glade, someone could very reasonably take the 18 judgment there's no point pursuing the data protection 19 matters against private investigators, given what the 20 likely sentences were going to be. That was the gist of 21 counsel's advice, wasn't it? 22 A. Well, absolutely. Exactly that. 23 Q. Yes. 24 A. And you'll see -- this is document 48808. That's the 25 very full note of the conference with counsel, and the 81 1 advice was that we had to drop any further cases and 2 I was very concerned about that advice. I was 3 questioning and challenging it. If you read the full 4 note, you'll see see that I was very reluctant to be 5 told that will we could not go any further with this 6 case. I questioned and challenged it in various ways. 7 But at the end of the day, it says on page 48813: 8 "RT stated he felt he had to swallow hard and accept 9 the advice he was being given by counsel in this 10 matter." 11 So that was the point at which we were being told 12 that we could not pursue our prosecutions any further 13 because the public interest so demanded. 14 LORD JUSTICE LEVESON: Did you know that the judge at 15 Blackfriars had asked where the journalists were? 16 A. I only knew that about a month ago, sir, when I saw the 17 transcript of the trial. I didn't know at the time. 18 MR JAY: We have the transcript at RJT49. This is one that, 19 because there may be journalist names mentioned, 20 probably is not going to be put up on any screen. So 21 underneath our tab 56. Of course, the core participants 22 have seen the full document. The judge did ask 23 a question about the journalists. 24 LORD JUSTICE LEVESON: It's not actually a transcript, is 25 it? It's a file note prepared by your office, I think. 82 1 A. That's -- the in-house lawyer, Phil Taylor, appears to 2 have written this note up, yes. 3 MR JAY: He was told that a number of journalists were 4 interviewed. This is at 07741. But that was in the 5 context, at least at that stage, of an indictment which 6 was concerned with a corruption conspiracy, wasn't it? 7 Because we know the indictment was late amended, as 8 you've reminded me. The reason -- 9 A. I'm not very familiar with what happened there. 10 Q. No. 11 A. All I know is that conspiracy charges were brought. My 12 understanding was that they also included data 13 protection matters. 14 Q. Yes. 15 A. That the case did not proceed vis-a-vis the conspiracy 16 and ended up with the convictions for the data 17 protection offences. 18 I also understand that there was a feeling that the 19 prosecutor had not accurately conveyed some of the 20 material to the court vis-a-vis the journalististic 21 aspect, and I can't turn it up straight away now, but 22 some of the notes you've had from the ICO's legal file 23 indicated that the barrister for the CPS had not perhaps 24 conveyed the full picture. We'd sort of -- if you like, 25 were not actively engaged or involved in that. 83 1 Q. The original conspiracy at the time out in the 2 indictment was a conspiracy in relation to corruption 3 matters, but what happened appears on the internal 4 numbering of this file note, page 10, which may or may 5 not have reached your bundle, because it only came to 6 light, I think, on Monday. Has it been added? 7 LORD JUSTICE LEVESON: It has. 8 MR JAY: It may not had been added to everyone's, but it's 9 clear from what's said in the middle of the page that 10 two of the men pleaded guilty to the indictment as 11 originally constituted, which was not for data 12 protection, but then quite late, on 6 April 2005, the 13 Crown amended the indictment to include two offences 14 under the Data Protection Act. Whittamore and Boyall 15 both pleaded guilty. 16 So it did involve in part data protection but in the 17 main it was outside data protection, it was police 18 corruption. Do you follow me? 19 A. I do, but of course the whole case arose out of the 20 circumstances. I mean, here we had private detectives 21 paying money to people inside the DVLA, inside British 22 Telecom, inside the police, to get the information. So 23 my understanding, I think, remains the case that this 24 was a far more serious matter than a breach of 25 Section 55. That's why the Crown Prosecution Service 84 1 took it over and prosecuted in that way. 2 Q. Yes, but -- 3 A. Then the prosecution appears to have gone wrong in some 4 way. There are suggestions in the later papers that 5 there had not been adequate disclosure by the CPS and 6 the CPS were reluctant to let the case go all the way to 7 full trial, and so some sort of deal seems to have been 8 done, leading to the -- 9 Q. Do you have person knowledge of this or is this 10 speculation? 11 A. No, I don't at all. 12 Q. Some would say, well, if you're turning a bit off-piste 13 and making criticisms of others -- 14 A. I'm just recording what's in the paperwork. 15 Q. Okay. We do know that by the time you were forced with 16 making the unpalatable decision to discontinue the 17 Operation Motorman prosecutions, of course at that point 18 the only parties to the relevant conspiracy were the 19 private investigators. They were not the journalists, 20 were they? 21 A. That's correct. 22 Q. Can I move off that topic to another topic, which is the 23 quality of the evidence you had. It's possible that 24 I can take this quite shortly, given your correct 25 characterisation before the Select Committee of the 85 1 evidence amounting to a hard prima facie case or hard 2 prima facie evidence, but of course, the strength of the 3 evidence will fluctuate a bit, depending on whether 4 you're looking at friends and family and PNC on the one 5 hand, and area searches on the other. Would you accept 6 that as a general statement? 7 A. Yes. I think I was also talking to the Select Committee 8 in fairly general terms. 9 Q. I'm not suggesting that you were doing otherwise. 10 Can I ask you, please, to look at exhibit RJT47, 11 which is under our tab 54, where you are giving more 12 information. If you can just attain your bearings, 13 Mr Thomas, in relation to evidence you gave or material 14 you gave in answer to a Freedom of Information Act 15 request. You cover that in your second witness 16 statement. 17 If you look at page 07726, which is the second 18 page of this letter -- do you have that? 19 A. Not yet. 7726? 20 Q. Please. 21 A. Mm-hm. 22 Q. At the bottom of the second page, you say: 23 "There were 13,343 transactions recorded in the 24 source material ... of these, 5,025 are identified as 25 transactions that were (of a type) actively investigated 86 1 in the Motorman enquiry and are positively known to 2 constitute a breach of the DPA." 3 Can we be clear about that? What type of 4 transactions are you referring to there? Or are you not 5 able to say? By "type", I mean are you referring to 6 ex-directory searches, aggregating those with a number 7 of other type of transactions to arrive at 5,025? Or 8 can you not assist us further? 9 A. Well, first of all, this was not my letter. This was 10 written by -- this was the draft -- the office has not 11 found a copy of the actual letter. This was a draft 12 which has been found of a letter written by Philip 13 Taylor. 14 Q. Yes. 15 A. And bear in mind, please, that he was the solicitor who 16 was involved in all the -- well, the middle and late 17 stages of the prosecution. He was the solicitor who 18 attended the Blackfriars trial, for example, and he was 19 dealing with counsel right through 2004 and 2005. 20 Q. Yes. 21 A. And he was heavily involved in the preparation of the 22 two reports from my office. It was the first report 23 which documented the nature and the extent of this 24 illegal trade in personal confidential information, and 25 he was the -- he drafted the first, if not the second 87 1 and third drafts of that report, which led to the 2 statement that there were 305 journalists implicated in 3 the material which had been found. That led to the 4 freedom of information request which was received 5 probably in about September, October of 2006. 6 Q. It did. 7 A. And this is his draft reply to the FOI requester. So 8 he's the one who made the judgment there, which fed into 9 both our reports, that of the source material examined, 10 some 13,000 transactions, he characterised some 5,000 -- 11 5,025 -- as transactions of a type which were positively 12 known to constitute a breach of the Act. 13 Now, you might be asking me: how did he form that 14 judgment? I can't say for sure. I have speculated in 15 my witness statement, but I think it would be a similar 16 sort of material as that which did lead to the 17 convictions, and material which could not have got into 18 the hands of anybody except by way of asking questions. 19 Put it that way. 20 Q. Yes. 21 A. We're going to come on and talk about, for example, 22 ex-directory numbers, but we're talking also in this 23 situation about friends and family details, criminal 24 record details, details of convictions and ex-directory 25 numbers, all of which at least raise questions about how 88 1 they got into the hands of the investigator. 2 Q. The language used here is "positively known to 3 constitute a breach", so it's putting it quite high -- 4 A. It's putting it quite high. You asked me earlier was 5 something slightly overstated and this might perhaps be 6 slightly overstated. I mean, yes, he's a lawyer, but 7 I don't think he's saying that this is absolutely 8 guaranteed, as it were, to result in a conviction. 9 We're not in a court of law in writing these letters, 10 but he was of the view that this was -- this would have 11 been sufficient to amount in a conviction. 12 Q. If you aggregate all the PNC requests and the friends 13 and family requests amongst the 13,343, an exercise 14 which I haven't done apart from impressionistically, you 15 only get to a number in the hundreds. You don't get to 16 the thousands. There are only relatively few of those. 17 In order to get to 2,025, you are presumably 18 including the ex-directory requests -- 19 A. I've not done the airthmetic either, Mr Jay, but my 20 impression, from looking at these papers, is that they 21 must have included the ex-directory material, too. 22 Q. If you look at the next page, 07727, where you're 23 looking at the slightly less evidentially potent 24 category, the 6,330, they're described as occupant 25 searches, which represent transactions that are thought 89 1 to have been information obtained from telephone service 2 providers and are likely breaches of the DPA. However, 3 the nature of these is not fully understand and it's for 4 this reason that they are considered to be probable 5 illicit transactions." 6 It might be said by those representing the media 7 organisations that, again, that's an overstatement, 8 isn't it? 9 A. Well, I can't answers that in detail. I can only, like 10 you, speculate. But what appears to have happened is 11 that the investigators -- this was a new team of 12 investigators, by this time, who had come on the scene 13 to look at this material, they and the inhouse lawyers 14 classified the material into three broad headings. 15 Q. Yes. 16 A. What appeared to be definite, what appeared to be 17 probable and that which is outside altogether. Now, I'm 18 not saying that every single case would have stood up in 19 a court of law and resulted in a conviction, and 20 therefore for both those first two classifications there 21 may have been, to use your language, a slight 22 overstatement. But I think for the purposes of writing 23 our report, to draw attention to what the evidence 24 appeared to show, to draw the attention of the media, 25 government, Parliament, everyone else, to what was going 90 1 on, I think that was sufficient. 2 Q. To be fair again, there's a distinction -- 3 A. Sorry, one further point. Not being said here these 4 were offences committed by journalists. This was 5 clearly focused primarily on offences committed by the 6 private investigators. 7 Q. That was my next question -- 8 A. Sorry. 9 Q. -- which you've read my mind and answered, so I don't 10 need to ask it. 11 A. If you look at the language of both reports, it is very 12 clear on that. We are not saying -- and I think some of 13 the media organisations perhaps have read too much into 14 the report -- we're not saying that each and every one 15 of these was an offence committed by a journalist. What 16 we were saying in our report is that journalists were 17 significant customers of information which appeared to 18 have been obtained illegally. 19 Q. Is that what you were saying there in the second report? 20 My exhibit is not marked. It's under tab 6. It may 21 well be exhibit 2. The page I want to look at is 22 page 00335. I think it is exhibit 2, isn't it, 23 Mr Thomas? 24 A. Yes, I think so. The second of our reports? 25 Q. Yes. 91 1 A. Yes. Which page are you on? 2 Q. I'm on the internal numbering page 8. 3 A. Page 8. 4 Q. But 00335. 5 A. Yes. 6 Q. This is when you're introducing the table. You got to 7 the 305 journalists -- 8 A. Yes. 9 Q. And you say, two paragraphs from the bottom: 10 "Having considered the matter further, the 11 Information Commission has decided that a further 12 disclosure is in the public interest and in the context 13 of a special report to Parliament is consistent with the 14 discharge of his functions under the Data Protection Act 15 1998. The following table shows the publications 16 identified from documentation seized during the 17 Operation Motorman investigation, how many transactions 18 each publication was positively identified as being 19 involved in and how many of their journalists (or 20 clients acting on their behalf) were using these 21 services." 22 So you're saying there that you're drawing 23 a distinction. The positive identification relates to 24 the transactions and to the private investigators, and 25 the journalists are simply those who are using these 92 1 services; is that correct? 2 A. Yes. That documents that large numbers of journalists 3 were buying large amounts of information from 4 investigators who, in our view, can only have obtained 5 that information by breaching Section 55, some of whom 6 had been convicted of sample cases, some year or 18 7 months earlier. 8 Q. Mm. 9 A. We are not saying that the journalists in every case 10 committed an offence. We are suggesting, I think, that 11 it is likely they may have been committing an offence 12 but we've explored this fairly fully this morning 13 already. There was not a trial, so we cannot say with 14 certainty that anyone committed any offence. But we are 15 saying that they were driving the market. We are saying 16 they were customers for information which appeared to 17 have been obtained illegally and for which there had 18 been conviction. 19 Q. You're certainly saying in the last paragraph on this 20 page that the only defence you can see as a possible 21 defence is the public interest or similar issues. 22 A. Well -- 23 Q. Aren't you? 24 A. I'm not particularising that to whom might have been the 25 defendants. Whittamore did not raise public interest 93 1 defences. He pleaded guilty. If there had been any 2 prosecutions of journalists, it's quite possible they 3 would have raised a public interest defence. There may 4 have been other defences. They may have said it wasn't 5 knowing or reckless, which is part of the offence 6 itself. So we're not saying here that the journalists 7 were committing offences. They may have been, they may 8 not have within. One would have to look at each 9 particular case. 10 Q. Yes, but then on the table itself on the next page, you 11 are linking various publications with number of 12 transactions positively identified and then the number 13 of journalists. So you are perhaps giving the 14 impression that these newspapers have committed 15 offences, aren't you? 16 A. I wouldn't go as far as that. We're moving in that 17 direction, shall we say, but we're not categorically 18 saying that journalists have committed offences. 19 LORD JUSTICE LEVESON: Could I just ask you about that, 20 please? I understand the definition of the offence in 21 Section 55(1) of the Act, but if a private detective is 22 asked to get friends' and families' numbers which are 23 covered by the Act, how could that not be knowingly or 24 recklessly at the behest of the person who asked him to 25 get that information? 94 1 A. I think that's a very good question, sir, and I'm not 2 disagreeing with that. I think that's why I'm saying it 3 is, to my mind, highly likely that would have been an 4 offence, and so we are coming close to suggesting that 5 there were offences, at least in some cases, but we were 6 not going to be writing down here -- nor am I saying 7 today -- that every single one of these was an offence 8 by a journalist. 9 It was very, very likely indeed to be an offence by 10 the private investigator, and to my mind -- and I think 11 to your mind too, from my understanding of what you were 12 saying -- it looked very much though as though it would 13 have been an offence by the journalist. But we were 14 conscious we had not prosecuted, we had to abandon the 15 prosecutions we had in train, we hadn't got the hard 16 evidence that, if you like, there was a conviction, so 17 we had to use our words quite carefully. We are 18 suggesting -- Mr Jay put it to me that we were implying. 19 We were coming close to that and I stand by that but 20 I am not able to say categorically, because only 21 a criminal court can say that, that they were guilty of 22 the offence. 23 LORD JUSTICE LEVESON: I understand that. 24 A. And that there may have been an offence in each 25 particular case. 95 1 LORD JUSTICE LEVESON: Can you think of one? 2 A. Not offhand, no. 3 Well, let's take the example we're talking about, 4 family and friends. It depends where the evidence comes 5 from, but if it's in the hands of a journalist that he 6 has got from Mr Whittamore a list of someone's family 7 and friends, I find that quite outrageouses in policy 8 terms. I find it highly, highly indicative in legal 9 terms that that must have involved a breach of 10 Section 55 at some stage, certainly by the investigator, 11 almost certainly by the journalist. 12 MR JAY: But if -- 13 A. And likewise for criminal records. 14 Q. But everybody knows that family and friend numbers can 15 only be obtained by getting a copy of the bill or 16 someone at British Telecom telling you what's on the 17 bill. 18 A. That is exactly what was our very, very strong 19 hypothesis, and I think this is, you know, what so 20 outraged me, that this was going on and led to such 21 a light sanction when it finally got to trial, that 22 I felt there was no option whatsoever but to bring it to 23 much wider public attention, despite the difficulties in 24 doing that. That led to the first report, "What price 25 privacy?", being written. 96 1 Bear in mind it's not just the press, if I may say 2 so. That's a very important point. We were targeting 3 the entire market and there were other customers, as the 4 report makes very clear. I know the focus of this 5 Inquiry is on the press, but we were not looking at it 6 in terms of: "Let's expose what the press are up to". 7 It's: "Let's expose this whole market", and there were 8 a lot of people and at the end of the day, it really 9 sort of boiled down to any citizen in this country is at 10 risk of having highly personal information obtained by 11 others against their will, and we -- sort of we 12 published the tariff, we published the training manuals. 13 We documented that for 150 to 200, virtually anybody 14 in this court today, the owner of a car parked outside 15 their house could be tracked down. An ex-directory 16 phone number, it would cost between 65 and 75. 750 17 was the cost of getting anyone's call records, 500 the 18 cost of getting criminal records. And I found that 19 absolutely -- 20 Q. I was going you all this, because you're moving ahead 21 now. 22 A. Well, I'm running ahead but I wanted to get this point 23 very, very firmly. 24 Q. What I'd like you to do, if you look at paragraph 5.3 of 25 your first report under tab 4. This is our exhibit 97 1 RJT1, page 00296. I said in opening this case I was 2 going to ask you questions on 5.3, and you're giving us 3 the answers. Just so that we can tether those answers 4 to your report and see the context -- are you with me, 5 Mr Thomas? 6 A. No, I've lost you. Which page are you on, I'm sorry? 7 Q. 00296, paragraph 5.3 of your first report. 8 A. Sorry, I'm on the second report. 9 Q. These are rather strong points you make. 10 A. Yes. 11 Q. And they're probably very well substantiated. Just so 12 that we follow the line of your evidence, you say here: 13 "This was not just an isolated business operating 14 occasionally outside the law, but one dedicated to its 15 systematic and highly lucrative flouting. Nor could its 16 customers --" 17 Well, in our context, those are the journalists; is 18 that right? 19 A. Yes, although we are writing this also aware that banks, 20 insurance companies, law firms -- 21 Q. In our context. 22 A. In your context, I understand, but I'm explaining the 23 report itself. There's a market. 24 Q. (overspeaking): 25 "Some of the information obtained, such as PNC 98 1 checks, ex-directory telephone numbers and details of 2 frequently dialled numbers cannot normally be obtained 3 by such businesses by lawful means." 4 Pausing there, possibly you've understated it, 5 Mr Thomas. PNC and frequently dialled numbers -- these 6 are the family and friends -- cannot be obtain by other 7 than unlawful means. Ex-directory numbers, you may be 8 right, cannot normally be obtained by lawful means. 9 Would you agree with that? 10 A. Absolutely. 11 Q. "Others, such as personal addresses, can be obtained 12 lawfully only by the old footslogging means, such as 13 personal checks of the full electoral register. The 14 prices charged for some pieces of information raise 15 questions about their provenance. Either the price was 16 too low for information obtained lawfully (as in the 17 case of personal addresses), or it was high enough to 18 indicate criminal activity (as in criminal records 19 checks)." 20 So if you give us the prices again, maybe you'll be 21 able to illustrate that point for us, Mr Thomas. 22 A. I looked at that sentence a lot and I just wonder 23 whether there's a mistake there. I think the word 24 probably should have read "too high" in the penultimate 25 line. I can't fully understand that sentence now. 99 1 I think it reads more clearly if you read it as: 2 "The price was too high for information obtained 3 lawfully or it was high enough to indicate criminal 4 activity." 5 It was certainly not a well-crafted sentence. 6 I recognise that. 7 Q. I'm not sure that's right. 8 A. Well, I don't know. I can't make sense of the sentence 9 as currently drafted. 10 Q. I think what you're saying is that if you're only paying 11 17.50 for an occupancy check, that's an extremely low 12 price. If you're going to use foot-slogging means, it 13 would be more expensive and the lowness of the price 14 therefore is an indicator of illegality. So I think -- 15 A. You can read it several ways. I don't want to put too 16 much weight on that one sentence but it's not a very 17 happily crafted sentence. 18 Q. Well, I think it probably was quite happily crafted but 19 again, my opinion is quite irrelevant. 20 What about "or high enough to indicate criminal 21 activity"? You've given us snippets of that, 750 22 for -- was that the PNC check? 23 A. Well, if you look at paragraph 5.35, that's where the 24 full table is set out. This table was taken from the 25 Motorman materials. 100 1 Q. Yes, you're right. 2 A. And the paragraph opens that, and what we did there was 3 to tabulate the price which was recorded as being paid 4 by the customer to the blagger, and then the price 5 charged to the customer. 6 Q. Yes. 7 A. And we -- I'm not sure if it's on the screen, but -- 8 Q. Page 0035. 9 LORD LEVESON: We've got it. It's there. 10 A. And -- I mean, the examples I was giving earlier are the 11 ones which I shared with the Select Committee just to 12 illustrate the range of prices. It wasn't a fixed price 13 for everything. 14 MR JAY: No. 15 A. But it was clear that, you know, there was a price to be 16 obtained -- the price to be paid for obtaining 17 registration ownership details of any car, ex-directory 18 phone numbers, call records, criminal records and so on. 19 Some were quite low figures, some were quite high 20 figures, perhaps, as you're suggesting, reflecting the 21 difficulty of obtaining the different sorts of 22 information. 23 Q. We've been through the different categories with 24 Mr Owens and sort of degrees of proof of illegality, and 25 I don't think it's necessary to do that again with you, 101 1 Mr Thomas. But thank you for reminding us of this 2 table, because it's a very convenient setting out of the 3 relevant prices. 4 You also considered in your second witness statement 5 the quantities of money involved here, the payments made 6 by the newspaper organisations. This is at our tab 53, 7 I think. Your second statement, paragraph 7, 8 page 07721. 9 A. This was my attempt to make sense of the letter which 10 had been sent to the FOI requester where some figures 11 had been tabulated, and what I am suggesting in 12 paragraph 7, which is on the screen now, is that taking 13 the lower estimate for all the newspapers, the ones 14 which were, in your language, probable but not positive, 15 was 300,435, but a maximum of 547,160. 16 Q. Yes. 17 A. So that's the range. We're not saying each and every 18 one was a criminal offence, but that's the range of the 19 prices paid for the information as documented in the 20 papers seized during the Whittamore raids. 21 Q. Thank you. That gives us an idea of the lucrative 22 nature of the business. We're not, of course, looking 23 at the exhibit because it names journalists and 24 therefore has been -- 25 A. I see. 102 1 Q. -- as it were, removed from any publicly available 2 document, but I should refer, as I did on Monday, to 3 RJT29, when you make a correction in relation to the 4 Sunday Times, don't you? 5 A. Yes. Do you want me to talk through that now? 6 Q. I think the Sunday Times would probably like you to, so 7 if we could just deal with it quite briefly. It's under 8 our tab -- 9 A. At this stage, I'll say that as a result of a letter 10 from the Sunday Times we went back to the figures about 11 a month after this was published and we found one error, 12 and we corrected that. We wrote to Parliament, we laid 13 it before Parliament. We wrote to all recipients, and 14 I wrote a letter to the managing editor of the 15 Sunday Times with an unreserved apology. 16 What we had done, we had taken from the same 17 notebook the data for the News of the World, the 18 Sunday Times and the Times, and due to an inputting 19 error, some had been misattributed. They should have 20 been News of the World and they were put onto the 21 Sunday Times, and we modified that in the amended table. 22 Q. So the table -- 23 A. I'm not sure whether the table you have is the new or 24 the old table. 25 Q. It's the old. The table now for the Sunday Times should 103 1 read only four cases but the News of the World figure 2 increases to 228. Let's just check whether the version 3 we have reflects those revised figures. 4 Yes, it does. These are the revised figures, with 5 your correction. 6 A. Yes. I have the reprinted version of the report, which 7 has the correct figures. 8 Q. Thank you. 9 Before I move off this topic onto another topic, 10 which is going to the PCC, can I just ask you a question 11 which arises out of your fifth witness statement, which 12 is under our tab 59A. It's paragraph 13. I'm afraid 13 I don't have the URN number because the version I have 14 printed off is -- 15 LORD JUSTICE LEVESON: You want this paragraph up? 16 MR JAY: Paragraph 13, yes. 17 LORD JUSTICE LEVESON: Yes, it's 48890. 18 MR JAY: Thank you. 19 Here you're dealing with some evidence, Mr Thomas, 20 from the Daily Mail. Are you with me? 21 A. Yes. 22 Q. You say in paragraph 13: 23 "Ms Hartley asserts the conclusion that the 24 transactions are likely to reflect enquiries that did 25 not involve illegal activity. This appears to have been 104 1 justified largely by reference to the claim that the 2 great majority of cases consisted of addresses and 3 telephone numbers." 4 Then you say: 5 "However, this is not a conclusion that can be 6 drawn." 7 And then you say: 8 "Addresses and telephone numbers obtained, for 9 example, from telephone companies remain (using the 10 language of Section 55) personal data obtained from 11 a data controller without consent, even where that 12 information might be obtained legally by other means." 13 Just looking at that, if we are concerned with the 14 mens rea of this Section 55 offence, could it not be 15 said that if the information could be obtained legally 16 by other means and the journalist doesn't, in fact, know 17 the means that the private investigator is going to use, 18 well, then it's at least arguable that there isn't 19 knowledge or recklessness for the purposes of 20 Section 55? 21 A. That is correct. I think the point I should make, 22 though, is that the figures in the tabulations were not 23 attributing the offences to the journalists. They were 24 saying that the investigators had committed the offence. 25 And I think both Associated Newspapers and 105 1 News International have rather read too much into 2 this -- we'll come onto this later -- by saying that we 3 were saying in every case there would have been an 4 offence committed by a journalist. 5 But the numbers here were the offences primarily 6 committed by the investigators, and given what we know 7 about the modus operandi of Steven Whittamore, I think 8 I would stand by the claim that addresses obtained, for 9 example, from DVLA or from British Telecom would have 10 been obtained by illegal means. He certainly would have 11 had the knowledge for the recklessness. In court, 12 I think he pleaded guilty using the reckless line, but 13 there we are. 14 Q. Then you say, second bullet point: 15 "For most people, a mobile or ex-directory phone 16 number is not in the public domain and is treated as 17 a confidential matter." 18 Well, that certainly is true, but if the issue here 19 is the offence in relation to obtaining a mobile or 20 ex-directory phone number, of course usually you would 21 have to do that by either going to the relevant phone 22 company, in which case certainly an offence is being 23 committed, or by looking at a list which someone else 24 has compiled of such numbers, in which case offences may 25 well have been committed because that list itself is 106 1 derived from an illegal source. Would you agree with 2 that? 3 A. Well, I suspect we may come back to this with 4 News International, because they put evidence in 5 recently saying that there is a database of some 6 48 million ex-directory phone numbers. It's the first 7 I'd heard of this, but nevertheless that's what their 8 evidence says and it says that the numbers have been 9 obtained legally. I've no idea what that means. I am 10 somewhat doubtful. But I'm not totally quarrelling with 11 the idea that ex-directory phone numbers might possibly 12 be obtained by legal means. 13 48 million is a huge number, for a start -- 14 Q. Mr Thomas, I'm asking you to think about it in these 15 terms. 16 A. I -- 17 Q. One way you can get an ex-directory number is to plough 18 through old editions of directories and try and find the 19 individual when that individual had a published 20 directory number. That is a possibility and that would 21 be lawful? 22 A. Yes. 23 Q. But that may or may not be particularly plausible. 24 Another way is that these 48 million numbers have 25 all been obtained or most of them obtained illegally by 107 1 someone who has deployed the same blagging methods which 2 Mr Whittamore has deployed. 3 A. But there are -- 4 Q. Do you accept that? 5 A. No, because there are other explanations. I'm just not 6 sure it's ex-directory numbers. I suspect it refers to 7 mobile phone numbers. 8 Now, on many, many occasions, when you go onto 9 a website these days, buried away in the small print, 10 without you knowing it, you are consenting to your phone 11 number being passed on to somebody else. So that's one 12 explanation. I deplore that, I campaigned long and hard 13 to get much clearer notices to the general public, but 14 undoubtedly there are organisations out there now who 15 are using the small print -- for example, on websites -- 16 to obtain phone numbers and to be tabulating those. 17 That has become much more prevalent in the last four 18 or five years. It wasn't so prevalent at the time we're 19 talking about, but nevertheless it is, regretfully, 20 a great deal easier these days, primarily through modern 21 technology, to obtain more and more personal information 22 about people. 23 So I can't -- I'm being honest with you, Mr Jay. 24 I cannot say categorically that an ex-directory number 25 must have been obtained illegally, but in going back to 108 1 this case, given what we know about Mr Whittamore and 2 his methods, knowing he had corrupt sources inside the 3 telephone companies, I think it's highly likely that 4 ex-directory numbers were obtained illegally, and when 5 you look at the price list, you don't start paying 6 the -- I'll just check the ex-directory price. 7 As a customer, you're charged between 65 and 75. You 8 don't pay that sort of money if you can get it entirely 9 legally. 10 Q. That's the point you make very accurately in 11 paragraph 5.3 of your first report. You're saying: 12 let's apply some common sense here, let's look at how 13 much you're paying for this information. I'm not sure 14 that one can sensibly disagree too strongly with that. 15 Your third category in the bullet point on 16 paragraph 13, where you're dealing with the reverse 17 tracking category, Mr Thomas: 18 "Addresses obtained ... from a phone number or car 19 registration where the address is held by the telephone 20 company or by DVLA have necessarily been obtained 21 illegally." 22 I think that may well be right. 23 A. I hope it is right. I mean, it seems to me that -- 24 I think some of the media people were saying if it was 25 only an address, it's only a phone number, what's wrong 109 1 with that? This is common domain. But that misses the 2 point entirely. If you got the address from a corrupt 3 source inside DVLA or you got the address by working 4 back from the phone number, reverse tracking or 5 conversion, whatever you like to call it, it seems to me 6 that can only have been obtained illegally. 7 Q. Given the mastery that you're displaying of this 8 material and the inferences to be drawn from it, someone 9 might say, well, if you had some of the editors in from 10 the worst offenders towards the top of the list and you 11 or your team asked them questions on this and their 12 journalists, you might have got some rather interesting 13 answers, which would have enabled you to consider, on 14 a better evidence base, whether or not to prosecute. 15 Don't you think -- 16 A. Well, my mastery, as you put it -- thank you, but my 17 mastery has come in the last four or five years. I only 18 got heavily involved in this when we published our 19 report in 2006. I have become even more familiar over 20 the last two or three months, with the build-up to 21 evidence to this Inquiry. I can now see the picture 22 perhaps a great deal more clearly. 23 Your question suggests that we should have done more 24 with the individual newspapers. We'll come on, maybe 25 this afternoon now, to talk about what I did with the 110 1 Press Complaints Commission, with the newspaper 2 proprietor's association, with the newspaper society, 3 with the Society of Editors, so I dealt with them all 4 collectively. 5 No, I did not go to each individually, but it seemed 6 to make sense to me to go to them collectively and get 7 them to put their house in order, and although I'm not 8 claiming total success, I think we had quite significant 9 success in doing that. And this was at a time -- you're 10 taking me right back, of course, to 2003 -- when Rebekah 11 Wade and Andrew Coulson had been to the Select Committee 12 denying that this sort of thing was going on, and that's 13 quoted in our report. 14 Q. Yes, I've been asked to put to you this question before 15 I go to the PCC, as it were. Did you ask newspapers or 16 editors to comment on the table which we see in the 17 second report, "What price privacy now?" to comment on 18 the table in draft before it was published? 19 A. No, it we didn't. 20 Q. After it was published, apart from the Sunday Times, did 21 anybody seriously question your findings? 22 A. Not at all, and more generally, in the many, many 23 conversations I had after the two reports were 24 published, nobody questioned the general thrust of our 25 report. No one asked to see the breakdown of the 111 1 figures. No one asked -- no one said, "You've got it 2 all wrong, you're barking up the wrong tree." 3 And I said this in my first statement, the 4 overwhelming impression I had from everyone I saw was: 5 "You've found people out. You've brought to the surface 6 that which people either knew or had a broad awareness 7 was going on." 8 Q. So that we clearly understand this, without naming 9 individual editors, did you have discussions about these 10 matters with individual editors? 11 A. I don't think I've ever had a conversation to this day 12 with an editor. 13 LORD JUSTICE LEVESON: Did you go to the code committee at 14 all? 15 A. Oh yes. 16 LORD JUSTICE LEVESON: But the code committee consists of 17 editors. 18 A. Well, the people I met there were Les Hinton and 19 Paul Dacre, and I think they are proprietors rather than 20 editors. 21 LORD JUSTICE LEVESON: I don't think so. Mr Dacre might be 22 pleased to be the proprietor of Associated Newspapers, 23 but I don't think he is. 24 A. Sorry, in that case, I met Paul Dacre, but only after 25 the report -- yes, you're right, he calls himself 112 1 editor-in-chief, doesn't he, of Daily Mail -- 2 MR JAY: Well, he is the editor of -- 3 A. Yes. I'm reflecting back on his notepaper, trying to 4 recall what he said on his notepaper. So I have to 5 apologise here and now to Mr Dacre. 6 MR JAY: Moving forward, Mr Thomas, to the post-prandial 7 evidence -- we'll see what exactly happened with 8 Mr Dacre and others, but we can start with the PCC now 9 before lunch. You introduced this in paragraph 39 of 10 your first witness statement. Under our tab 1, it's 11 page 00269. 12 A. Sorry, I missed which paragraph. 13 Q. Paragraph 39. You deal with this towards the end of 14 your witness statement, but I feel that we should bring 15 it in now. 16 A. Yes. 17 Q. It kicks off with a letter you write on 4 November 2003, 18 and this was, in terms of the advice notes we've seen, 19 between the attendance note of 20 October 2003, which we 20 saw in the legal advice file, and counsel's formal 21 advice of 22 December. 22 The letter itself is RJT3 under our tab 8, 23 page 00360. I'll paraphrase it. He's just been 24 appointed as its chairman of the PCC. You congratulate 25 him, you ask for an early meeting. You refer to 113 1 Section 55. You refer to the ongoing investigation. 2 You say at the bottom of this first page you anticipate 3 prosecuting a number of individuals in due course. 4 The top of the next page: 5 "At the moment, I am waiting while the police 6 investigate serious offences relating to corruption." 7 Then, three lines down on the second page: 8 "It's clear from the very considerable volume of 9 material that our investigations have collected that 10 journalists from most national newspapers and many 11 periodicals are significant customers." 12 And then this is the bit you've read out: 13 "I am considering whether to take action under the 14 DPA against individual journalists and/or newspapers." 15 And that's something you wished to stress earlier. 16 That was really a threat, though, wasn't it, Mr Thomas, 17 to Sir Christopher and a threat which I would suggest 18 you weren't really going to exercise by then, were you? 19 A. I certainly didn't see it as a threat. It was meant to 20 be a constructive and friendly opening in my engagement 21 with the Press Complaints Commission. 22 Q. There's no reason why you shouldn't have made the 23 threat. 24 A. Well, I wasn't threatening. I was simply putting him in 25 the picture. So I certainly wouldn't characterise that 114 1 sentence as a threat. It may have been somewhat 2 overstating the case, and I think, you know, we've 3 established that this morning. 4 Q. Okay. 5 A. But nevertheless I've stressed here because I did want 6 to demonstrate to you that the possibility of 7 prosecuting journalists was still very much live. 8 Q. I think we've been over that one, but in terms of what 9 happened next, there was a meeting on 27 -- 10 LORD JUSTICE LEVESON: Are you moving from the letter? 11 Because there's one question I would like to ask about 12 the letter. 13 MR JAY: Please. 14 LORD JUSTICE LEVESON: Could you go back to 00360, please, 15 Mr Thomas. It's the fourth paragraph: 16 "You'll doubtless also be aware that I submitted 17 a memorandum setting out the extent to which my role 18 touched upon matters covered by the committee's 19 enquiries. In addition, I had an informed meeting with 20 the committee. I was at pains to make clear that though 21 I do not wish to usurp your role as the regulator of the 22 press ..." 23 My question is: what are you relying on as 24 concluding that the Press Complaints Commission was 25 a regulator? You're a regulator, but you've concluded 115 1 here that they're a regulator, or asserted that they're 2 a regulator. I'm just interested to investigate your 3 understanding of that. 4 A. I'm glad you raised that because I think it goes, in 5 many ways, fundamentally to the heart of some of the 6 issues you're going to be dealing with. 7 LORD JUSTICE LEVESON: That's why I raised it. 8 A. They call themselves -- called themselves 9 a self-regulatory body. They have said for many, many 10 years and still say that it is really important to have 11 self-regulation of the press rather than statutory 12 regulation. We're familiar with those arguments. 13 At that time, when I wrote this letter, in all my 14 dealings with the PCC I certainly saw them as 15 a regulator. But I have to say that my view now is that 16 they are much more a complaint handler, and I draw 17 a distinction between complaint-handling schemes and 18 regulators. And regulators tend to be 19 intelligence-driven, proactive, mainly focused on either 20 prevention or punishment; complaint handlers are 21 investigating complaints. 22 I suppose I have reached the view, chairman, that 23 that letter reflected my thinking at the time, I'd 24 understood them to be a regulator, but perhaps we were 25 at cross purposes. 116 1 I had dealt a lot in my previous career with the 2 Advertising Standards Authority, and I had regarded that 3 as a model of good good self-regulation. 4 I had been the architect of the banking and 5 insurance ombudsmen schemes, which were self-regulatory 6 and the governance arrangements there were modelled upon 7 the Advertising Standards Authority, and I had in my 8 mind associated the Press Complaints Commission with the 9 same sort of approach as the Advertising Standards 10 Authority: able to intervene and take action to prevent 11 unacceptable behaviour. And that was my expectation 12 when I had gone to see Sir Christopher Meyer. 13 I think over time I was somewhat disappointed. 14 Although I don't decry everything they did, it fell 15 short of what I'd hoped they might be doing. 16 So using that sentence in that letter, "your role as 17 a regulator", that was my perception, somebody of some 18 experience in these matters, that they were holding 19 themselves out as a regulator of the press, and I think 20 in fact they were more of a complaint handler. 21 LORD JUSTICE LEVESON: Was that perception ever the subject 22 of discussion or in any sense was the role of the PCC 23 more fully described so that you could correct your 24 perception? 25 A. I certainly had three or four meetings with 117 1 Sir Christopher Meyer and we've probably touched on some 2 of these matters. 3 My meeting with Les Hinton of News International 4 when he was then the chairman of the Editors' 5 Committee -- although I don't think he's an editor, by 6 the way, that's why I perhaps was confused -- but in 7 that conversation I can recall saying, you know, "Why 8 can't you transform and change the Press Complaints 9 Commission to make it look more like the effective 10 self-regulation models I've encountered elsewhere?" 11 My last paragraph of my statement, I'm happy to 12 elaborate on some of that now or later. 13 MR JAY: At the end, Mr Thomas. 14 LORD JUSTICE LEVESON: Doubtless we'll come it, but while we 15 were looking at the letter, I just -- 16 A. No, I think that's absolutely fair, and I did see them 17 and they held themselves out as a regulator and I think 18 experience showed that they were not a regulator in the 19 conventional sense. 20 MR JAY: The purpose of going to them, as was clearly from 21 counsel's advice, was to permit them to get their house 22 in order, is that -- 23 A. That is a very fair summary of exactly what I and 24 everyone else hoped they would do, and to some extent it 25 was successful. I think they could have done more. But 118 1 we thought, you know, the focus really was on stopping 2 this market, how can we stop this sort of unacceptable 3 activity carrying on? And they are supposed to be in 4 charge of the press, they ought to know what's going on. 5 We're constrained to some extent because the 6 prosecutions are still under way, I can't share too much 7 information with them, quite apart from the section 59 8 problems, which we'll come onto later, but I felt 9 I could go and tell them as much as I could about what 10 was going on and see what their reaction was going to 11 be. 12 Q. There was a meeting set up for 27 November. In order to 13 prepare for that meeting, you compiled a speaking note, 14 which is RJT5 under our tab 10, 00363. I'm not sure 15 that any specific points arise out of the note, save 16 that you appear to have had at your fingertips then the 17 nature and the quality of the evidence under the fourth 18 bullet point, "The resultless of our investigations"? 19 A. By this time I was much more focused on -- this was -- 20 I think probably I prepared this note myself, from what 21 I've been told. I don't think this was drafted for me, 22 this was my own note, and clearly by that time I wanted 23 to have the information to share with the PCC about the 24 nature and the scale of this. 25 The bottom two bullet points are, you know: what 119 1 could we expect from the PCC? Can we have a general 2 condemnation? Will this lead to change in the code of 3 practice? 4 Then the meeting took place -- 5 Q. RJT54. 6 A. Sorry? 7 Q. It's at RJT54. Your notes of the meeting. 8 A. Well, yes. That's my handwritten note of the meeting. 9 What I have not tracked down, nor has my former office, 10 is the official note of the meeting. There was an email 11 from me to my colleagues, including -- 12 Q. But this will do, Mr Thomas, because this is a note you 13 were taking at the time -- 14 A. Yes, indeed. 15 Q. -- so it's probably the best -- 16 A. Fine. 17 LORD JUSTICE LEVESON: We will want to go to the email, 18 though, because it's actually quite instructive. 19 MR JAY: Can we identify all the evidence which bears on the 20 meeting? 21 A. Yes. 22 Q. We have the note, am I right in saying you took this at 23 the time, at RJT54? 24 A. Yes. 25 Q. And then there's the email which followed it. Is it 120 1 RJT6? 2 A. Yes. 3 Q. Our tab 11? 4 A. Which was written presumably shortly after the meeting; 5 is that right? 6 A. Well, that evening (overspeaking) at 5 o'clock, 5.17 7 that evening. 8 MR JAY: Noting the time, may I go through these materials 9 after lunch? 10 LORD JUSTICE LEVESON: Certainly, yes. 2 o'clock. 11 (1.00 pm) 12 (The short adjournment) 13 14 15 16 17 18 19 20 21 22 23 24 25 121 http://www.levesoninquiry.org.uk/evidence/?day=2011-12-09
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Afternoon-Hearing-9-December-2011.txt 1 2 (2.00 pm) 3 LORD JUSTICE LEVESON: Yes, Mr Jay. 4 MR JAY: Thank you. 5 Mr Thomas, before we look at RJT54, may I ask you 6 this general question: did your office consider 7 contacting any of the targets or victims of those in 8 Mr Whittamore's books? 9 A. My understanding is that about 30 or 40 were approached, 10 primarily with a view to giving evidence about the 11 circumstances where their personal data had been 12 obtained, and I recall that I think most of these were 13 what you might call celebrities, but not all. Some were 14 private individuals in private life. I don't know if 15 you want to name names -- 16 Q. No. 17 A. -- but two or three of the names still stay in my mind. 18 I was told that they'd been visited and that witness 19 statements had been obtained, and indeed some of those 20 later, three years later, came forward when we produced 21 our reports to give their story as to how they had been 22 targeted. 23 But what we did not do, which I think is implied in 24 your question, is go to all victims. Can I say this: 25 first of all, there were obviously a large number. It's 1 1 only now saying this with hindsight -- there was no 2 discussion, but you have to be very, very careful when 3 you approach victims. If -- to give you an example, if 4 a letter had gone from my office saying, "Dear 5 Mr so-and-so, we think you've been targeted by a private 6 investigator", if his wife or his family saw that 7 letter, that could have raised all sorts of questions. 8 We were an office which was very, very concerned with 9 personal privacy, and so if I'm being asked about that, 10 I would say if you are going to approach victims, you 11 have to do so very carefully indeed. 12 Q. Okay. May I ask you, please, now about RJT54, which is 13 your contemporaneous note. 14 At the start, it says: 15 "Good relationship. Confidential meeting. 16 "'Independent' and mean it. From newspapers and 17 politicians." 18 A. "From". 19 Q. "From newspapers and politicians." 20 A. You have to understand this is my hastily written 21 handwritten note during the meeting. 22 Q. Of course. 23 A. But I can recognise my own handwriting. I can't always 24 recognise exactly what I was trying to say or who said 25 the various things. 2 1 LORD JUSTICE LEVESON: But who was independent? 2 MR JAY: Yes. 3 A. I think we were both very proud of independence, I'm 4 sure, but -- I would have stressed, and always do, our 5 independence, but I suspect Christopher Meyer was also 6 saying that he felt independent, but I can't be sure to 7 whom that word is attributed. 8 Q. Okay. 9 A. Probably to him, because it says "from newspapers and 10 politicians". 11 Q. Fair enough. I won't deal with the contempt part and 12 the Attorney General: 13 "Can't undermine obligation to obey law." 14 Is that right? 15 A. Yes. 16 Q. And then in inverted commas: 17 "Not our role to enforce law, not arm of ICO." 18 That must be Sir Christopher speaking; is that 19 right? 20 A. Yes, I'm sure it was. 21 Q. He's making the point there that he's not really 22 a regulator, isn't he? 23 A. He's not a prosecutor to enforce the criminal law, but 24 this was a point that came out then, I think, and 25 certainly came out in subsequent conversations with the 3 1 code committee, the PCC and others, and the line -- and 2 it's even now in their evidence to this Inquiry. The 3 line is: "We can't deal with these matters because 4 they're covered by the criminal law", and I just did not 5 buy that line. 6 If you look at the code of -- the Editors' Code, 7 there are various parts of that which overlap with the 8 law, describe legal requirements and other terms. The 9 section on the code which deals with subterfuge, some of 10 that addresses matters which would be illegal under the 11 Regulation of Investigatory Powers Act. Some of that 12 financial information would be illegal under the 13 Financial Services and Markets Act. 14 So certainly then on many occasions I challenged 15 this line: "We can't deal with these matters because 16 they're covered by the law already." There's more than 17 one way to skin the cat. 18 Q. But was Sir Christopher telling you, rightly or wrongly, 19 the PCC is not going to enforce the law because this is 20 part of the criminal law, which it is the ICO's 21 responsibility to enforce? Is that what he's trying 22 to -- 23 A. Well, lower down the page, if you see RT, my note: 24 "Not expecting PCC to investigate or take action 25 against 400 journalists." 4 1 So I was quite clear, that wasn't the reason I was 2 there to see him. I was there because I wanted the 3 practices put to a halt for the future. That was my 4 objective. I wasn't asking him to investigate. This 5 was evidence which he might have used in general terms 6 to condemn what was going on, but I did not expect, and 7 nor did he expect, that we were going to hand over the 8 case and let him somehow take action against those 9 journalists implicated in the Motorman affair. 10 Q. Absolutely. Can we see what he was offering to do, if 11 anything? You have a little box around the next bit: 12 "Code can't deal with unidentified victims." 13 And that feeds into a point you make later on. Is 14 he saying to you there, or did you understand him to be 15 saying to you: "This is outside the code because, as we, 16 the PCC, don't know who the victims are, we can't even 17 begin to take any steps under the code"? 18 A. Let me just pause for a moment. It was a meeting that 19 does stick in my mind. At the meeting, I was there with 20 Phil Jones, who was one of the assistant commissioners, 21 and he was there with Guy Black, who was then, I think, 22 the director of the PCC, and I've never had a meeting 23 where the atmosphere changed so rapidly halfway through 24 the meeting. 25 The first half of the meeting, I think they just 5 1 didn't quite know why we were there, didn't really see 2 very much seriousness, but the whole -- as we started 3 just in general terms to tell about the nature and the 4 scale of the activities, going back to that speaking 5 note -- 6 Q. Yes. 7 A. -- which you asked me about before lunch, and I shared 8 some of that with him -- I've never seen a meeting where 9 the whole the atmosphere changed so fast and they took 10 us very seriously in the second half of the meeting, so 11 much so that they asked us to go back in again about ten 12 days later for a second meeting. 13 So I just want to get that point across, you know, 14 and this perhaps is reflected a bit in my handwritten 15 notes when he talks about not being surprised but maybe 16 surprised at the scale of the activity, it being 17 a watershed, the scale of the problem, endemic, and that 18 I hope is reflected in the short email which I sent soon 19 after that meeting back to the office. 20 Q. Yes, and you stopped at "knowledge of proprietors". 21 What did you take that to mean? 22 A. I don't know. Sorry, yes, I could have gone onto that. 23 I don't know whether he or me or anyone was saying the 24 proprietors know about it or didn't know about it. 25 I can't help you on that. That's simply my note and 6 1 I don't recall one way or the other what that note 2 meant, but I think those are the two possible 3 interpretations: either the proprietors knew all about 4 it, or they had no knowledge of it. I simply don't 5 know. I'm not suggesting either way what that note 6 means. 7 Q. Then it says, does it: 8 "Constructive -- 'fellow regulators'." 9 A. Yes, that was the atmosphere certainly in the second 10 half of the meeting, that we had to work together to 11 tackle this problem. 12 Q. Is that the term he used there? It's in inverted 13 commas? 14 A. Somebody used that phrase, me or him, I don't know. 15 I think it's reflected in my email. 16 Q. We'll come to the email? 17 A. Well -- 18 Q. Tab 11, RJT6. 19 A. No, it's -- yes, there is -- that phrase does appear in 20 the emails. Perhaps we'll come onto that, but 21 I actually said: 22 "But they seemed to be increasingly ready, as the 23 meeting progressed, to work with us as 'fellow 24 regulators' with a strategic response." 25 Q. You made it clear that you weren't expecting them to 7 1 take action against 400 journalists. You were looking 2 for willingness to adopt a general solution which had 3 two limbs: condemnation and general censure; is that 4 right? 5 A. Yes. 6 Q. And code amendment? 7 A. And that entirely reflects the speaking note which 8 I took along with me to the meeting. 9 Q. At the end: 10 "Maybe problems. Dialogue over details. 11 Constructive spirit." 12 But in the result, the code amendment didn't take 13 place until 2007, did it? 14 A. You are jumping ahead. Do you want to go through the 15 story sequentially or ...? 16 Q. We will, but just so that we -- 17 A. There was no code amendment, as I understand it, until 18 least 2007. I think there -- some detailed changes were 19 made. 20 Q. Did you ever get the condemnation and general censure 21 out of the PCC in your view? 22 A. Not in the terms I was hoping. I wanted loud, strident 23 condemnation. It goes back to the point which the 24 chairman asked me about: are they regulators or what are 25 they? And I certainly expected -- from my experience, 8 1 a regulator is someone who tries to put a stop to bad 2 practice, to unacceptable practice, and I had hoped that 3 at the very least, they would be very loud and noisy in 4 saying, "This is absolutely unacceptable." 5 What we got was a speech from his Christopher Meyer, 6 and that is exhibited. He did mention it in his speech, 7 and I think there's some indication from the 8 correspondence -- there were some exchanges on it, but 9 it was nothing like the -- and I said this to him on 10 several occasions directly and it's recorded -- there 11 was not the sort of loud condemnation that I had 12 originally expected. 13 Q. Yes. 14 A. Having said that, something did have an effect upon the 15 media, as far as I can see. 16 Q. The email says at RJT6, 00364, in the main paragraph: 17 "This might lead to some sort of general 18 condemnation, although there are some difficulties in 19 amendment to the code." 20 So your expectations weren't that high, were they? 21 A. Well, you're reading into every email a sort of precise 22 legal interpretation and this was, you know, done at 23 5 o'clock that evening from my home, I expect. 24 I was fairly optimistic because the meeting -- the 25 atmosphere had changed in the second half and he had 9 1 said, "Come back and see me again in a couple of weeks' 2 time." 3 Q. Yes. 4 A. So he wasn't giving commitments, no, and I think that 5 language, you know, might lead to it, what I was looking 6 for, but I couldn't say to anybody that we had secured 7 a firm commitment on those lines. 8 Q. The second meeting was on 2 December, I think; is that 9 correct? 10 A. Yes, and there I don't think anyone's been able to find 11 any notes of that meeting at all, I'm afraid. 12 Q. No. 13 A. I don't have the same vivid memory of the first meeting, 14 but certainly the very general terms was that, you know: 15 "Yes, you've raised an issue. We need to look at this. 16 You know, we need to look at it." I'm not saying they 17 were committing themselves to any particular course of 18 action. 19 Q. No, nothing much happens then for a whole year. If we 20 go to RJT7 -- 21 A. No, I think quite a lot -- wait a minute. Yes -- 22 Q. PCC -- 23 A. In the first half of 2004, Phil Jones, who I mentioned, 24 and his team were exchanging emails with the PCC and 25 were trying to draft this guidance note and we had high 10 1 hopes that, you know, that would produce something 2 worthwhile, and that seemed to sort of grind to a halt 3 in April of 2004 and I only have the documentary 4 material on that. I can't speak personally to that. 5 But I came back on the scene vis-a-vis the PCC 6 in December. I'd had lunch with Christopher Meyer. At 7 that lunch, I discovered that the guidance note had not 8 progressed and that his language, I think, was "run into 9 the sand", and we revived it -- 10 Q. Just look at the document. There is reference to the -- 11 A. Yes. It's RJT7. 12 Q. Yes. 00365. 13 A. Yes. 14 Q. 8 December 2004: 15 "I was, however, extremely concerned to hear that 16 the advice note that Tim had drafted on Data Protection 17 Act, journalism and the PCC code had run into the sand. 18 You explained that media lawyers had thought the advice 19 had oversimplified the position. I'm very disappointed 20 to hear this." 21 Then the next paragraph: 22 "My concern is that unless the attention of 23 journalists and editors is drawn to the real possibility 24 of committing criminal offences under the Act, there's 25 a real risk that the all too widespread practice of 11 1 paying to obtain confidential information about people 2 in the public eye will continue unabated." 3 So we'd reached the position where one practical 4 proposal had run into the sand and the PCC had done 5 nothing. That's true, isn't it? 6 A. Well, that's putting it very sharply. Clearly both 7 sides, my team and their team, were trying to put 8 together a guidance note, but it hadn't materialised by 9 the end of 2004. 10 Q. But a whole year had elapsed. These were potentially 11 very serious matters. The PCC hadn't given the general 12 censure or condemnation which you indicated was at least 13 a possibility and -- well, looking to the other side of 14 the coin, it was pretty clear to you that they weren't 15 going to help you much. Isn't that true? 16 A. Again, that's putting it too strongly. I didn't lose 17 all faith. The evidence shows that I went back a number 18 of times to the PCC throughout 2005, 2006 and 2007, and 19 tried to keep -- engage their interest with it. But it 20 is true to say that I thought their response was less 21 strident and I think I used the word "disappointing" 22 more than once in this context. I thought they could 23 and should have done more. 24 Q. Thank you. Sir Christopher -- 25 A. Although he kept saying to me: "What more should we do?" 12 1 Q. Sir Christopher writes to you on 5 December, under tab 2 13, RJT8. 3 LORD JUSTICE LEVESON: Hang on, that's before this letter, 4 is it? 5 MR JAY: The following week. 6 LORD JUSTICE LEVESON: No, this is 8 December. 7 MR JAY: Yes, and then tab 13 is -- did I say the 5th? 8 I meant the 15th. 9 LORD JUSTICE LEVESON: Yes, because before we leave 10 8 December, you again repeat the fact that you've 11 perceive the PCC as a regulator: 12 "As you know, I am strongly of the view that the PCC 13 and the principles of self-regulation will be shown in 14 a poor light." 15 A. Yes, absolutely. 16 LORD JUSTICE LEVESON: Yes. 17 A. And I see from the correspondence they've tabled that 18 they took it quite seriously and said to the various 19 media organisations: "Look, he's getting aggressive 20 here", if I can paraphrase. 21 LORD JUSTICE LEVESON: 15 December you wanted, Mr Jay? 22 MR JAY: Yes. 23 LORD JUSTICE LEVESON: 367? 24 MR JAY: 367. Says: 25 "I've asked Tim to resurrect the guidance note and 13 1 to consult Phil Jones and to take final comments from 2 the industry before putting the draft to the commission 3 for approval in February. If goes without saying the 4 Commission cannot condone criminal behaviour and if the 5 note raises awarenesses about what journalists must do 6 to comply with the Act, then that will be most welcome." 7 Did anything further happen? There are no documents 8 which indicate whether they did or not. 9 A. I think that particular guidance note did surface, 10 I think -- I have to go back and check the records, but 11 I believe that the note was made public by the PCC 12 probably in the spring of 2005 and I think it was 13 substantially in the shape that we had agreed to. 14 It was a useful guidance note but I suppose I was 15 a little concerned that it buried the Section 55 16 warnings into a wider context of talking about the Data 17 Protection Act and its application of the media more 18 generally, and I think even now I would say that it was 19 a shame it didn't just focus on Section 55 in the way 20 that our own note, which we produced, I think, in 2006 21 or 2007, what we call a good practice note, that was 22 a very, very clear one and a half pager as to how the 23 press should take seriously Section 55. 24 And I had hoped, because I thought it would have 25 greater authority, that something like that would have 14 1 come from the PCC at some stage. 2 Q. What we do see happening at RJT9, if I can take this 3 reasonably economically -- 4 A. Yes. 5 Q. -- is you send Sir Christopher, quite rightly, a copy of 6 your report on 10 May 2006, and you explain to him -- 7 A. He was one of about a hundred people at that stage. 8 Q. Of course. 9 A. It was more a standard letter. 10 Q. His reply, though, under our tab 17, RJT 12 -- 11 A. Yes. 12 Q. We can draw our own inferences from this: 13 "Thank you for sending me a copy of your report." 14 This is page 00378. 15 "It was an interesting read. I'm sending you a copy 16 of our annual report which we've just published, along 17 with the text of a speech I gave last night in which 18 I refer to your remarks about the PCC. I think that as 19 a next step it would be helpful if we organised 20 a meeting so that we can explore what more it is that 21 you think the PCC can do. You will appreciate that your 22 call for us to act came rather out of the blue. We have 23 no material to work with other than what you put into 24 the public domain in your report." 25 What did you think of that at the time, Mr Thomas? 15 1 Speaking frankly, as I'm sure you will? 2 A. I can't tell you what I thought at the time. I can tell 3 you what I think now, which is probably the same as 4 I thought at the time. 5 Q. What's that? 6 A. I thought "interesting read" was a fairly strong 7 understatement. I thought we put a lot of work in 8 getting that report put together. I had shared material 9 with him beforehand. The report was not directed just 10 at the press, but nevertheless it was fairly emphatic in 11 its content and its style. We were proud of that 12 report. It was a very special report, the first time 13 ever we'd gone to Parliament, and I felt that to 14 describe it merely as "an interesting read" was 15 a considerable understatement. I'm probably guilty of 16 the same offence myself now. 17 And I think to say it "came out of the blue" was 18 surprising because we had had the two meetings with him 19 and we had collaborated at official level to try and get 20 a guidance note together, and I think also that is 21 perhaps also an indication of the line coming back all 22 the time: "What do you want us to do? Tell us exactly 23 what to do." 24 My line was: "Well, you are the self-regulators. 25 You're the ones who are supposed to be working out what 16 1 is needed to stop the press getting into unacceptable 2 territory. It's not my job to tell you what your job 3 it." 4 I had some ideas and I had some thoughts and I was 5 not slow to share some of those, but I was a little 6 surprised by the letter. But my style was always to try 7 and keep on the right side of people and to carry on 8 that constructive dialogue, so I didn't write back and 9 say, "What a dreadful letter." 10 Q. You were doing the best with someone who really was 11 making it clear he wasn't going to help much. 12 A. Well, he gave me his speech and at the end of his 13 speech, there's two paragraphs. The speech was on 14 25 May, only about two weeks after our report had come 15 out, and he mentioned it and I can't quarrel with the 16 wording that's in the speech. Who was there for the 17 speech? I mean, how many people? Was it publicised? 18 Was it really got out to far more people? 19 For all I know, behind the scenes Christopher Meyer 20 was ringing up every editor, every proprietor and 21 saying, "Come on, guys, you really have to change all 22 this together", and maybe he was, but there wasn't much 23 visibility in terms of the PCC condemning the activity. 24 Q. Of course -- 25 A. Having said that again, things did get better from that 17 1 point onwards. 2 Q. By this stage, the issue was stale to this extent: that 3 the underlying material in Mr Whittamore's books went 4 back to 2003, much earlier, so the tempo had really been 5 lost, to some extent, hadn't it? 6 A. Sorry, what had been lost? 7 Q. The tempo. We were three years after -- 8 A. I don't think so, no, because we were bringing -- or the 9 CPS were bringing the main prosecution. We were waiting 10 for the outcome of that. That wasn't until 2005. Then 11 we got the very clear advice from our counsel that it 12 would not be in the public interest for us to pursue the 13 matter any further. 14 We're now into the autumn of 2005 and my timeline, 15 which is attached to my first witness statement, 16 indicates I attended at least two, maybe three meetings 17 and that led to the first steps being taken to produce 18 the report. 19 Q. Yes, okay. 20 A. And the report was drafted primarily in-house. It then 21 went outhouse for a skilled writer to improve this 22 presentation of the report, and we published that in 23 May. 24 Q. Okay. 25 A. So I don't say -- I don't accept at all the tempo slowed 18 1 down. There wasn't that much direct contact with the 2 PCC, but we were frankly outraged and very disappointed 3 at the result of the case and I was very clearly focused 4 on: "We can't let people get away with this." 5 LORD JUSTICE LEVESON: It's interesting, if one looks at the 6 speech that Sir Christopher gave -- and in case we don't 7 come back to this particular speech, it's page 379. At 8 page 380: 9 "Here I return to a familiar theme of the PCC. We 10 make an enormous effort to preach the gospel of 11 self-regulation around the UK." 12 Then at 381: 13 "It's in the industry's own best interests to 14 bolster self-regulation in this way." 15 And then finally, 388: 16 "As I look forward --" 17 This is discussing with you and your concerns about 18 the practice of offering money for confidential 19 information. 20 "I look forward to discussions with Mr Thomas about 21 what more he thinks the PCC can do about this within the 22 self-regulatory framework." 23 So if you believed they were regulators, at least 24 you had some support for that view. 25 A. Yes, indeed, and if I could just, chairman, point out 19 1 the last sentence of that paragraph: 2 "But clearly it would not be viable simply to 3 duplicate the criminal law in the code of practice." 4 That was the line I was getting all the time: "We 5 can't deal with this because it's part of the criminal 6 law." And I have to repeat, I just did not if buy that 7 because not only -- 8 Q. We understand, Mr Thomas -- 9 A. It's actually an important point because I dealt a lot 10 with the Advertising Standards Authority. A lot of 11 their code covered matters which would be illegal under 12 the Trade Descriptions Act. 13 Q. We've got that point and you're 100 per cent right -- 14 A. Thank you, but I just need to put that into this wider 15 context. Thank you. 16 Q. I just want to move this on a little bit, aware as I am 17 of what the agenda is for the rest of the afternoon. 18 RJT13, Mr Thomas. There was a meeting on 13 July 2006. 19 It's under our tab 18, 00389. 20 A. Yes, this followed the publication of our first report. 21 Q. You see, under "Key issues", a third of the way down: 22 "PCC's response." 23 And then: 24 "Respective roles and responsibilities of the PCC 25 and the Code of Practice Committee of Editors." 20 1 Specifics. You set out the background of the 2 report, in particular the intention to target the 3 middlemen involved in the illegal trade in confidential 4 information, while at the same time reducing the demand 5 by raising awareness of the illegal nature of the trade 6 amongst customers, including the press. So that's 7 a neat summary of your overall strategy, isn't it? 8 A. Yes. 9 Q. You express some disappointment that the PCC had not 10 been more forthright in its condemnation of the 11 activity. Am I right in saying that there had been no 12 forthright condemnation of the activity by the PCC at 13 all, from what we've seen in that speech, arguably? 14 A. That speech -- I don't personally have any knowledge, 15 but perhaps that's a question for the PCC. 16 Q. What Sir Christopher says: 17 "... explained the PCC stance has consistently been 18 that reporters must stay within the law and that he 19 makes this point regularly on public platforms but the 20 PCC is not able to act as a general regulator [see 21 that?]. He believes that what is needed is a strong 22 stance from the ICO, including prosecutions. He queried 23 what more the PCC could do." 24 So he's telling you yet again he's not going to do 25 anything. Isn't that true? 21 1 A. It comes close to the truth, but I don't know what was 2 in his mind. 3 Q. At the bottom of the page he explained: 4 "The PCC website is focused at individuals, not at 5 journalists, which is consistent with their role, which 6 is not that of general regulator." 7 Then you refer in the next bullet point to some 8 guidance on Section 55 offences. At the bottom of the 9 page: 10 "... if the Code of Practice Committee of Editors is 11 to be engaged by the ICO and the PCC to discuss the 12 possibility of changes to the code and production of 13 guidance." 14 So the upshot of -- 15 A. Can I just interject there? 16 Q. Yes, please do. 17 A. Because my annotation for this Inquiry has got on the 18 side here "fobbed off to committee", and frankly, that's 19 how it felt, that we'd been told we'd come to the wrong 20 place. If you want the code changed, you have to go to 21 the committee of editors. 22 I understand the distinction between the committee 23 and the PCC, that the PCC is the public face of these 24 arrangements, but basically he was telling me we'd come 25 to the wrong place. "If you want the code changed, go 22 1 and see the committee of editors", and that's why my 2 subsequent letter of 19 July, RJT14, to Ian Beales -- 3 who I had never heard of before, but he was the 4 secretary of the committee, tucked away in 5 Gloucestershire. I had to write to him there, and as 6 I say, it did feel somewhat that they weren't willing to 7 take this matter on within the PCC, so we had to go and 8 deal with the Code Committee directly, which we did. 9 Q. An important part of the general policy considerations 10 which you refer to, in, I think, counsel's advice of 11 22 December 2003, "Let the PCC get its house in 12 order" -- you may or may not have known ex-ante what 13 might have happened, but looking back on it, nothing 14 much did happen with the PCC, did it? 15 A. Two points. Yet again, I need to come back to this word 16 "policy". It was not an ideological strategic policy; 17 it was a matter of practicality. This was where the 18 office was going to go at that time. 19 We thought and had some hopes that the PCC would be 20 a better way of addressing the problem than anything to 21 do with suing the prosecutions, which we were, at that 22 time, recognising was going to be very expensive and 23 demanding for the office. Now, with hindsight, I 24 think I would have been more aggressive and more 25 assertive with the PCC and with the Code at the outset, 23 1 and they did disappoint me, as I said, in terms of their 2 response. But nevertheless, I do recognise that, 3 through whatever means, it appears to be the case that 4 the message was getting out, and certainly the 5 correspondence I've seen more recently from the PCC does 6 have some indication that they were exchanging messages 7 with the various players in the media industry, the 8 various associations and societies, saying, "Basically, 9 Thomas isn't going away. He's making a noise on this 10 thing. We have to do something." And they quoted the 11 sentence from my letter which you haven't quoted, which 12 was along the lines that if you don't take this more 13 seriously, it's going to put self-regulation in a very 14 poor light. 15 Q. We've covered one limb of strategy, if I can describe it 16 in that way, which you pursued. The other limb, of 17 course, is the deployment of Section 52(2), which I'm 18 going to come to in a moment. 19 A. Mm-hm. 20 Q. Can I ask you about your mainstream powers which 21 I touched on at the outset: powers under Section 40 to 22 issue enforcement notices, Section 43, I think, 23 assessment notices, and then your general duty under 24 Section 51. Why didn't you consider the use of all or 25 any of those mainstream powers against either the 24 1 journalists or the data controllers, which of course 2 were the companies who owned the media groups? 3 A. Well, I think we were using our powers to promote good 4 practice. That was a far more general power, and you 5 know, that was the justification, the rationale -- the 6 statutory foundation for much of what we did was 7 promoting good practice. I would describe pretty well 8 everything we did in this area as promoting good 9 practice. 10 On your question why didn't we use our formal 11 Section 40 enforcement powers, I can't recall any active 12 discussion or any active consideration of that, but 13 I would now say first of all we didn't serve that many 14 Section 40 notices, probably only two or three in 15 a year, and they were normally preceded by -- we're 16 under the constraints of the better regulation agenda. 17 We had to serve a draft of a notice before we entered 18 the actual notice as a matter of good regulation. 19 Secondly, I suppose I would say now -- but I can't 20 say if any of this surfaced at the time -- everybody 21 knew that to a very large extent the powers of the 22 office were very constrained indeed when it came to 23 dealing with the media. 24 Thirdly, I would say that obviously some 25 consideration was given to this because in the notes 25 1 that came out last week, there was a meeting in May -- 2 26 May 2005 -- Francis Aldhouse, Phil Taylor and Janet 3 Watowsky(?), who were the two lawyers -- and I think 4 that was a meeting where there was something about 5 possibility taking enforcement proceedings. 6 It says here: 7 "FGBA mooted enforcement proceedings." 8 So clearly some sort of passing thought was given to 9 it but nothing materialised. 10 Q. In terms of your general duty under Section 51 to 11 promote the following of good practice by data 12 controllers, you didn't issue any guidance of any sort 13 until after 2006; isn't that right? 14 A. Well, we're producing guidance all the time but -- 15 Q. Relevant to this? 16 A. On this, I think our good practice note -- I think it 17 might even have been 2007, but it was certainly after 18 the two reports had been published, so yes, it would 19 have been 2007. 20 Q. So in terms of your core general duty, nothing specific 21 is done until 2007 -- 22 A. No, no, no, not at all. I totally resist that. 23 Q. In relation to journalists -- 24 A. Well, because we were publishing these two reports, and 25 that is absolutely -- not only is it specifically 26 1 discharging the power, the possibility of presenting 2 a report to Parliament, but also I very much saw it in 3 terms of promoting good practice. 4 I mean, we didn't sit down there every day and say, 5 "How exactly are we going to interpret this section of 6 the Act?" but I would say very strongly indeed that by 7 publishing a report which set out in pretty well full 8 chapter and verse what a wide range of people are 9 doing -- not just the press but all the other players 10 plus this illegal market of private investigators and 11 tracing agents, drawing attention to that, condemning it 12 in the loudest possible terms and getting as much 13 publicity as we could -- and that wasn't easy. We got 14 a fair amount in the end. I would say that was 15 promoting good practice, and sending it to a hundred 16 organisations with specific personalised letters saying, 17 "This is not acceptable." 18 So I'm sorry to -- 19 Q. No, no, fair point. 20 A. -- challenge you so strongly on that, but I would say 21 this is very much promoting good practice. 22 Q. So part of the reason for exercising the specific, 23 perhaps exceptional power under Section 52(2) is in 24 discharge, you say, of your general powers and duties 25 under Section 51(1); is that right? 27 1 A. I'm saying that you take -- they're both part of the 2 same section. They're both part of this general 3 responsibility of the Commissioner to promote good 4 practice and to make sure everyone understands their 5 responsibilities. 6 Q. I'm right in saying, though, in answer to my question 7 about Section 40, is this right, that only passing 8 consideration was given to that mainstream enforcement 9 power? 10 A. That does appear to be the case, yes. 11 Q. Can I ask you about your purpose in publishing these two 12 reports? You've explained one of the purposes and 13 that's fully understood. Was it also part of your 14 purpose to try and initiate a political debate as to 15 whether the penalties under Section 60 for 16 contraventions of Section 55 should be increased? 17 A. I think I had quite a long list of objectives by the end 18 of the day, by the time we got to publishing this 19 report. 20 The first objective was to tell the world what was 21 going on. The primary stated objective was to get the 22 recommendations taken seriously, particularly to get the 23 government to increase the penalty, because we felt the 24 penalty was the main problem. 25 But I also felt -- and I'm not sure this was 28 1 articulated, but in my own mind -- the more noise we 2 could make about this, even if not successful in getting 3 the law changed, the more that was likely to have 4 a beneficial result. I wanted to get people on the back 5 foot. And in terms of all the other organisations, all 6 the other sectors where this activity was going on, as 7 our second report documented, it was taken seriously. 8 I mean, a lot of people were going around -- I almost 9 say in a blind panic, saying, "We have to clean up our 10 act on this." And we had some very, very encouraging 11 letters back from the Law Society, from the Office of 12 Fair Trading, from the Financial Services Authority. 13 We wrote to a lot of people. We took this very 14 seriously indeed. I wanted as much noise, as much 15 action taken as a response to this report, and to that 16 extent I think it was quite successful. But then there 17 was what you call a political campaign -- I'm not sure 18 "campaign" is the right word, but a political objective 19 to get the law changed because it wasn't just Motorman; 20 it was all the other cases that had gone on for years 21 before. They were documented in our report in annex A 22 of the report. We set out there a large number of cases 23 where we had prosecuted and we had only very low levels 24 of fine and clearly this sort of low potential to impose 25 significant sanctions was not having the deterrent 29 1 effect which I thought good criminal law should have. 2 Q. The steps that you took to raise awareness at least in 3 the first instance are covered in paragraph 23 of your 4 first statement, are they not, in 00265? 5 A. Um ... 6 Q. Where you capture the steps that you took. 7 A. That's a summary there, yes. It's not everything but 8 that highlights the overall strategy and gives some 9 examples, some of which are documented, as to the sort 10 of things I and the office as a whole were doing. 11 Q. Yes. 12 A. And, you know, just the fact that we got four select 13 committees I think is actually without precedent. 14 Culture, media, sport, March. Health, March. 15 Justice, December. Home affairs, December. To get four 16 select committees taking evidence from you about this 17 problem, I felt that was a significant and welcome 18 success. And all supported us. All condemned this sort 19 of activity. 20 Q. And were supporting your plea for raising the 21 criminal -- 22 A. Oh, very much so. You'll see from that paragraph I had 23 also gone -- I'd, you know, raised this at my regular 24 meetings with Lord Falconer. He was very supportive. 25 He said, "We're right behind you. Disgraceful." Again, 30 1 that comes from my handwritten notes of that meeting. 2 We discussed it regularly with the civil servants at 3 the DCA. I met the Director of Public Prosecutions in 4 person before the report came out and I wanted to get 5 his support for the line I was pursuing. 6 I'd met the chief executive of the NHS electronic 7 records project in the news this week, but that was the 8 largest civil IT project in the world. I got his 9 support. He saw the risks. 10 I went to the Sargasso -- no, it might have been his 11 predecessor but the meeting of all the Permanent 12 Secretaries from across Whitehall -- I went to their 13 meeting in February and I covered it in many speeches 14 and I've given some examples in my evidence of some of 15 the speeches where I, if you like, rammed home this 16 message. 17 But just to go back to your point, it was partly 18 promoting good practice and it was partly to try and get 19 the law changed. 20 Q. In terms of getting the law changed, you pick this up at 21 paragraph 24 of your first statement, 00266. You point 22 out that a DCA consultation paper was issued as early as 23 24 July 2006, which I think is RJT15 under our tab 24. 24 A. I regarded this as a major break through. It's -- the 25 department was not always known for its speediness, but 31 1 to get a consultation paper published three months after 2 our report came out was extremely welcome, and the 3 government at that time declared a very clear measure of 4 support for the line we were taking and recognised that 5 the remedy did lie in increasing the sanctions. 6 Q. Largely for reasons of deterrence, I think. 7 A. Absolutely. I've made no secret to this Inquiry and 8 elsewhere that I was primarily concerned with preventing 9 bad behaviour and the law plays its part in having 10 suitable deterrence. 11 I've said many times -- and I repeat it now -- it 12 was never my wish and not my wish to send any journalist 13 to prison. That's not in any way the agenda. I wanted 14 right across the market and the courts to take this 15 seriously in order to deter this sort of activity. 16 Q. What happened thereafter we can pick up at paragraph 25 17 of your statement, and in annex B to it, that the bill 18 initially moved very swiftly and smoothly through the 19 House of Commons without any controversy but then, by 20 early 2008, the press were mobilised against it. Is 21 that a fair way of putting it? 22 A. Well, you've jumped ahead a year. 23 Q. I have, yes. 24 A. The consultation paper was July 2006. The bill was 25 introduced into Parliament in the autumn of 2007 and got 32 1 a second reading -- this is the criminal justice and 2 immigration bill. 3 Q. Yes. 4 A. And it went pretty plain sailing to start with. 5 Q. Yes. 6 A. It went through the House of Commons. There was a brief 7 exchange at the committee stage of the House of Commons 8 but no vote. It went to the House of Lords and at that 9 point, and -- 10 Q. I'm just trying trying to take this quickly, Mr Thomas. 11 I'm making a point that it all moves swiftly and 12 smoothly until the press mobilise against it in the 13 early part of 2008. Is that, broadly speaking, correct? 14 A. Yes, I say -- you know, I was aware from January 2008 15 onwards that a powerful campaign was being generated 16 against this particular clause, and I was invited to 17 a number of meetings and the nature and the extent of 18 that campaign over the next three or four months became 19 very, very clear to me. 20 Q. Yes, and it's even clearer from annex B, isn't it, in 21 your statement -- 22 A. Yes. 23 Q. -- under our tab 00279, where you give a clear and 24 helpful timeline to the events of the winter, really, of 25 2008. 33 1 A. I worked this up during the preparation of my statement, 2 going back to my diaries, because I had electronic 3 diaries at this stage and the notes I had and the 4 materials I was able to look at at the office in August 5 to help this Inquiry, and I've pieced together this 6 timeline and I'm not sure if you're looking at it now 7 but I mean, I recorded there how there was a meeting -- 8 and I think some people in this room were at that same 9 meeting -- when I, you know, sat down with the junior 10 minister, Maria Eagle, and both sides put their case and 11 then, if I just take the story up in the February -- 12 Q. Just summarise it until we get to March 4. Just take us 13 through it as quick as you can. 14 A. I had a telephone call from Jack Straw, saying that he 15 might have to pull the clause out of the bill 16 altogether, and the reason given was that he needed to 17 make space for a provision because of the impending 18 prison officers' strike, and I recall registering strong 19 dismay at such a prospect and either saying or implying 20 that the real reason was media pressure. 21 I then had a meeting with Jack Straw in the House of 22 Commons on 21 February and we discussed this matter and 23 I came away believing that the clause was still hanging 24 in the balance but likely to remain. 25 I had a further call, March 3, telling me it was 34 1 going to be withdrawn altogether. I'd been in Hong Kong 2 the previous week. I'd come back and on March 3, the 3 this call came through saying, "We're going to have is 4 to withdraw the clause, but we will reintroduce it at 5 some later stage", and I recall making a very forceful 6 protest and I wrote to him on 4 March. 7 Q. You did, and that's RJT39 under our tab 45, 00539. You 8 very strongly register your protest, don't you? 9 A. Well, I've said many times I -- a Commissioner has to be 10 independent and seen to be independent, and one doesn't 11 write that sort of letter lightly. But I did feel that 12 it was my duty to put on the record my strong feelings 13 about the matter and my letter of 4 March started by 14 expressing my deep disappointment. And the letter's on 15 the record. 16 Q. Yes. Then there was a meeting with the Prime Minister 17 at RJT40, under our tab 46, 00542. 18 A. Yes. The following day I was in London and I got a call 19 that morning saying could I meet the Prime Minister, 20 Gordon Brown, that afternoon. I was able to do so, went 21 to Downing Street and met the Prime Minister, and again 22 you'll see -- I think RJT40 is the email which I sent 23 back to the office immediately afterwards recording the 24 main thrust of that conversation. 25 Q. Five lines down, the print is quite small: 35 1 "The PM started by saying that I had the most 2 difficult job in the country. I said that mine was 3 a long way behind his." 4 Exactly. 5 "He observed that he had long supported freedom of 6 information, referring ..." 7 And I paraphrase, "to what he said a long time ago". 8 The next paragraph: 9 "He was very concerned about data losses but thought 10 the matter needed to be kept in perspective. Risk 11 averse ministers and officials should not let the 12 pendulum swing too far the other way. But he fully 13 accepted that a culture of data protection had not been 14 taken sufficiently seriously and welcomed ICO support 15 for Gus O'Donnell's data handling review." 16 A. Can I interject there that this was about three, four 17 months after the great government data losses. HMRC had 18 lost 25 million child benefit records. The MoD, 19 Department of Transport, many departments had suffered 20 some really serious data losses, and that had been 21 a total preoccupation for the media, for government, for 22 me. In that period before Christmas, everyone was 23 extremely concerned the government had been careless 24 with large amounts of data which had got into the wrong 25 hands, and -- 36 1 Q. Well, he makes that clear in the last sentence. 2 A. Indeed, and the Gus O'Donnell review -- I mean, this 3 was -- he asked the cabinet secretary to review what 4 needed to be done, and we -- and I -- the office and 5 myself played quite a large part in feeding into that 6 review to try and improve governmental data handling. 7 Q. Can we move to the middle of the page: 8 "On the Section 55 and the criminal justice and 9 immigration bill, he understood entirely the need for 10 stronger sanctions. He considered that the trade in 11 personal information is entirely unacceptable and 12 suggested he had himself been a victim in the past. 13 I draw attention to some of the highlights in "What 14 price privacy?", demonstrating the diverse nature and 15 extent of the market. I may have invoked the point that 16 many others beside tabloid journalists were involved and 17 the media cases were largely of the tittle-tattle 18 variety. The Prime Minister accepted that a strong 19 sentence is needed to deter all those involved. This is 20 especially important after recent data losses. I made 21 it clear that this is a to be priority for ICO. I'm not 22 prepared to give up. At the same time, he is concerned 23 to strike the right balance with protecting freedom of 24 expression, especially in relation to legitimate 25 investigative journalism. Now that some time has been 37 1 brought, he wants a compromise position to be achieved 2 to minimise media concerns." 3 The compromise was that -- we see at the bottom of 4 the page -- an enlarged reasonable belief public 5 interest defence and the publication of a prosecution 6 policy from you; is that right? 7 A. No, I think you're jumping ahead a bit there. 8 Q. Okay. 9 A. What he basically said was unless we can get 10 a compromise here, the clause is going to be dropped. 11 He said to me: "I want you to go away and work with 12 everybody else to see whether a compromise could be 13 established." 14 Q. Yes. 15 A. And those two points at the bottom of the page were 16 simply that conversation with him -- and Gus O'Donnell 17 was in the room at the same time -- beginning to 18 speculate what a compromise might look like. 19 I was offering up -- by this time, the enlarged 20 defence was on the table that had been discussed and 21 I think -- we'll come back to it, I'm sure, but I saw 22 that as part of the compromise and I had raised that and 23 mentioned that to the Prime Minister. And secondly, 24 I said that I was perfectly happy to produce a statement 25 of prosecution policy and that would, I hoped, alleviate 38 1 any concern on the part of the press and maybe other 2 people. 3 So this was not the deal. That took the next four, 4 five weeks or so to put together. This was me 5 speculating with him the sorts of areas which 6 a compromise might cover. 7 Q. But he was making it clear to you that you were not 8 going to get what you wanted in full-blown form, namely 9 without any further amendment, the increase in the 10 penalty to two years' imprisonment, but unless you came 11 to some sort of deal you weren't going to get anything? 12 A. Yes, and -- I'm sure you'll come onto this. The letter 13 I wrote a day or so later to the Prime Minister recorded 14 that, but essentially the message was: unless 15 a compromise can be found, then this clause is coming 16 out of the bill. 17 Indeed, if you look at the parliamentary debates for 18 that day in the evening in the House of Lords, the 19 government minister gave exactly the same message to the 20 House of Lords. This is in suspense at the moment, but 21 unless the interested parties can find a deal, can reach 22 a compromise, then this clause is going to have to be 23 dropped. 24 I was very -- well, I'd expressed my concern the 25 previous couple of days to the Lord Chancellor, the so 39 1 Secretary of State, and I repeated it to the 2 Prime Minister, and I felt very strongly indeed that it 3 would be very damaging to all concerned if this clause 4 were to be withdrawn altogether. 5 I think in my statement -- perhaps we'll come on to 6 talk about the detail, the compromise, but to roll 7 forward a bit, at the end of the day there was 8 a compromise -- 9 Q. Yes, before we get to the compromise, your letter to the 10 Prime Minister was 7 March 2008. It's RJT41, 00544 11 under our tab 47. 12 A. Yes. Well, that, I think, you know, in more formal 13 language, repeats what I've been saying just now. And 14 the conclusion -- the penultimate paragraph, if I can 15 read that: 16 "I must conclude, however, by repeating this is 17 a pernicious and largely hidden illegal market. It is 18 highly damaging to individuals, to organisations and to 19 society. Although I recognise the need for balance, 20 withdrawal of the clause now would have very negative 21 sequences. Although you assured me the clause would be 22 reintroduced, I do not believe there will ever be 23 a better legislative opportunity." 24 And that was my letter to him on the record to just 25 capture points we had been discussing. 40 1 Q. Aside from the Whittamore haul, which dates back to 2 2003, as you know, have there been any other similar 3 hauls or smaller hauls your office knew about? 4 A. Oh, absolutely. If you look at "What price privacy 5 now?", the second report, there are, I think, three or 6 four examples of prosecutions which we were bringing 7 forward, which we said -- you know, things had moved on 8 a bit. 9 Page 7, page 8, case 1, case 2, private investigator 10 case 1, accepted a caution. Case 2, the case of Anthony 11 Clifford and that was a case that Joshua Rozenberg 12 covered for the Telegraph, which we saw a record of. 13 And case 3, the Andersons. This was a couple who 14 were -- they eventually pleaded guilty to 14 cases of 15 blagging techniques. So there were cases going on and 16 indeed, you mentioned earlier the Select Committee which 17 I attended in 2007 and there were some good examples, if 18 you like, of this sort of activity still going on. 19 Q. Can we be clear, Mr Thomas. This sort of activity, does 20 it relate to media organisations or journalists? 21 A. No, I'm talking about the illegal market. I have to 22 keep saying this. Our concern was wider, much wider 23 than just journalists. 24 And the cases which I was going to read out -- 25 I don't have them to hand straight away, but one -- 41 1 there in the evidence to the Select Committee. One, as 2 our investigators visited some premises, the fax machine 3 burst into life and said, "Please find out if this 4 lady's got cancer." 5 Another case at the same sort of time, a message 6 sent to the receptionist of a -- sorry, a message sent 7 to an investigator to go look at an abortion clinic to 8 find out whether a named person had been in for an 9 abortion. 10 Now, I don't know who the customer was for that. 11 I'm not saying it was the press. It could have been 12 anybody, but somebody had instructed a private 13 investigator to find out about a named individual, 14 whether they had actually received an abortion at that 15 particular clinic. 16 So this sort of activity was still going on right 17 through -- that was 2007, and perhaps we'll come later 18 to what my successor told the justice committee just two 19 months ago. 20 LORD JUSTICE LEVESON: Just remind me of the dates in 21 relation to Mr Mulcaire, could you? 22 MR JAY: He was arrested 8 August 2006, pleaded guilty, 23 I think, November 2006 and then sentenced whenever it 24 was in January 2007. 25 A. Yes. 42 1 Q. So we understand the context, because we have to see the 2 bigger picture, your campaign, if that's the right way 3 of describing it, in relation to increasing the penalty 4 for Section 55, was not targeted specifically at 5 journalists; it was looking widely to all the customers 6 who were the procurers, as it were, of this confidential 7 information. Is that correct? 8 A. That's a point I've been wishing to get across to this 9 Inquiry very clearly. 10 Q. Absolutely. 11 A. Yes. 12 Q. But the campaign against you, if that's the right way of 13 putting it, was largely led by media organisations -- 14 A. I'd go further -- 15 Q. Just let me finish the question -- enlisting, where 16 appropriate or otherwise, the support of politicians and 17 government -- 18 A. As far as I'm aware, the media organisations were the 19 only ones organising the efforts against the clause. 20 I didn't have any indication at all that the legal 21 profession or the financial services industry or the 22 investigators themselves or anybody else was standing up 23 and campaigning against the clause in the bill. 24 So it was -- and I think I had some direct evidence 25 of that when I was at meetings but certainly indirect 43 1 when I was told about what was going on. The compromise 2 being hammered out was -- involved me in three meetings 3 in quick succession -- 4 Q. Can we just look at that, please, Mr Thomas. In your 5 witness statement, annex B, the second bullet point on 6 the second page, 00280. You tell us that between 7 11 March and 2 April, you attended three meetings with 8 Sir Suma Chakrabarti to explore the scope for 9 a compromise: 10 "I understood that Paul Dacre, chairman of the 11 Editors' Code Committee, was attending alternate 12 meetings but we did not meet face to face at the time. 13 At the last meeting, I was told that it had been decided 14 to keep the clause but make two changes ... [first] the 15 custodial sentence would require consultation and 16 a ministerial order before being activated, and 17 secondly, the public interest defence will be modified 18 into a subjective or reasonable belief test." 19 LORD JUSTICE LEVESON: But that's purely subjective, is it? 20 It's objective as well. 21 A. Yes, I think that's a fair comment, chairman. It is 22 more subjective but there is obviously clearly still an 23 important element of objectivity. 24 LORD JUSTICE LEVESON: It's got to be reasonable. 25 A. Yes. 44 1 MR JAY: You sent an email, for example, RJT 42 under our 2 tab 48, 546, dated 24 March 2008. 3 A. Yes. This followed the second of the meetings. 4 Q. Yes. You make the point in the first paragraph -- and 5 I'm going to paraphrase it -- that the issue had become 6 very political and you set out how all the politicians 7 were, as it were, lined up. 8 The second paragraph: 9 "The officials' position is currently to favour 10 retention but with the new clause to widen the defence." 11 So this is the reasonable belief test? 12 A. Mm-hm, yes. 13 Q. But otherwise -- when you say "favour retention", you 14 mean keep the original proposal in the new bill? That's 15 right, isn't it? 16 A. That was what I think the civil servants were favouring. 17 Q. Yes. 18 A. Keep it as it is, but build into it a wider defence and 19 I was perfectly happy with that. 20 Q. Yes: 21 "There had been several meetings with media 22 representatives, including Paul Dacre, Guy Black, Murdo 23 McClellan and Rebekah Wade. The media side welcome the 24 new clause as far as it goes but are still holding out 25 for removal. One of their fears -- though remote -- is 45 1 that the penalty will be increased but the wider defence 2 which gets taken later as a new clause will not succeed. 3 They have countered this by arguing that the prison 4 sentence should be dropped and the defence widened. 5 I fell off my seat at this point and said my reaction to 6 such an outcome would be nuclear." 7 A. Yes. 8 Q. We can see that. So it's quite clear that powerful 9 media representatives were arguing the position as 10 eloquently as they were able in support of their own 11 self-interests, really? 12 A. Yes. 13 Q. Fair enough, that part? Thank you. The upshot, 14 though -- 15 A. You didn't read the next sentence, which I -- 16 Q. Yes, please do. 17 A. If I just read it to you: 18 "I was asked how we would react to removal. I said 19 it would be very noisy and very messy. We will publicly 20 denounce any such report. If we lost, we would publish 21 a third report to Parliament, documenting how this state 22 of affairs had come about." 23 So I was playing hard ball, if you like, but I had 24 to safeguard the position we had reached by making it 25 clear to the permanent secretary that, you know, if 46 1 there had to be a deal, we wanted a best possible deal. 2 Q. The upshot was that the deal which was attained was that 3 the increased criminal sanction, sentence of 4 imprisonment, would require secondary legislation -- 5 that's the ministerial order you refer to -- but paired 6 with that would be the introduction of the reasonable 7 belief test defence. All of this is now in Section 77 8 and I think Section 78 of the Criminal Justice and 9 Immigration Act 2008, which received the royal assent on 10 8 May 2008. 11 A. I would at some stage, maybe now, like a chance to say 12 something about that. 13 Q. Please do. 14 A. Because that is still the position. That's on the face 15 of the statute and I cannot for the life of me 16 understand why the government has now not activated that 17 provision. 18 There was a consultation in 2009, just before the 19 general election. My successor has been to Parliament 20 very recently. This -- he has documented how this trade 21 is still carrying on to this day. He's given many 22 examples, and I am very disappointed as an individual 23 now that still, despite all the material that has 24 surfaced in recent months, the order has not been 25 activated. It would be a very simple matter to bring 47 1 that into force now, and my broad understanding back in 2 2008 was that it would only be a delay of six months or 3 so, but that has not yet materialised and I'm afraid, 4 sir, that your Inquiry has now given us the reason why 5 it can't be activated. 6 LORD JUSTICE LEVESON: What? 7 A. Yes, my successor has been told that the government is 8 not willing to activate it because it has to wait and 9 see what your Inquiry leads to. I understand the Lord 10 Chancellor wrote to my successor quite recently. 11 So we're in a situation now of having to wait until 12 your Inquiry is concluded before, apparently, that can 13 be activated and I say very clearly -- this is my 14 personal view -- I can see no reason whatsoever to once 15 and for all address this very, very serious matter of 16 this illegal market, why this section should not now be 17 activated to send a very clear signal indeed at 18 a deterrent level that this is to be taken very 19 seriously, because even now there are people engaging in 20 this sort of activity which need that sort of lesson. 21 They need not only the deterrent effect of a prison 22 sentence but also unlocking all the other sentences 23 which become available once a prison sentence is there, 24 and that was part of the campaign. It's not yet 25 concluded. 48 1 MR JAY: All of this evidence merges into module three of 2 this Inquiry. One can draw certain inferences from what 3 you said, perhaps. 4 A. The chairman expressed surprise. This is all in the 5 public record because the justice committee in October 6 of this year made exactly the same point. They made 7 a very clear recommendation as a select committee that 8 the government should introduce this section straight 9 away and not await the outcome of the Leveson Inquiry. 10 Q. This is all a nice segue to -- 11 A. I'm sorry, I said I wanted a chance to say this. This 12 seemed to be the point to -- 13 Q. Mr Thomas, the next section, press knowledge and 14 influence. That may or may not throw some light on what 15 you've just been saying. Paragraph 29 of your first 16 statement, 267. 17 A. Yes. 18 Q. Can we try and summarise this, given where we are at 19 3 o'clock on a Friday afternoon, having covered quite 20 a lot of evidence already. You make the point fairly in 21 paragraph 30 that although media coverage was limited -- 22 this is the reference to the publication of your 23 reports -- the reference to 305 journalists certainly 24 did not go unnoticed. You refer to the table which 25 we've looked at. You refer to the response to that. 49 1 Paragraph 32, if I could deal with one sentence there, 2 two lines down: 3 "Certainly the table suggested heavy involvement 4 across the tabloid press at least. I have always 5 recognised that the material seized in Operation 6 Motorman came only from one group of investigators and 7 may have been entirely isolated." 8 What is your considered view about that, Mr Thomas? 9 Or is there no evidence either way? 10 A. There's no hard evidence, but we made the point in our 11 second report that the Goodman-Mulcaire case appeared to 12 be a completely separate group. They were not engaging 13 in the same activity, but I think we said there were 14 parallels. The hacking of voicemails had parallels to 15 the Section 55 activity. 16 I also refer to -- I said this morning, we 17 documented in our first report how the office had 18 prosecuted an investigator for this sort of activity in 19 the mid-1990s and how the press coverage in the 2002, 20 early 2003, late 2002, early 2003 -- they had reported 21 three or four examples of this. So all that, shall we 22 say, points towards this not being a completely isolated 23 network, but I can't go further than that. By its 24 nature, this is an underground market and I knew from 25 conversations with my investigators how difficult it is 50 1 to get the hard evidence. 2 Q. In paragraphs 33 and 34 of your statement -- you've 3 covered much of this already, Mr Thomas -- you say that 4 you had exchanges with press representatives on the 5 substance of your reports. The general line was to 6 accept that some journalists "did these things". 7 Through numerous meetings, no attempt was ever made to 8 deny the activities that you'd exposed. 9 Then you say in paragraph 34, towards the end: 10 "I have no doubt that by late 2006, most -- it not 11 all -- proprietors and editors at national level knew 12 all about the material we had published." 13 So that's your evidence in relation to that? 14 A. A very clear impression that our report was being talked 15 about was people were aware of it and were increasingly 16 taking it seriously. 17 Q. Then you had a meeting with Mr Les Hinton at the offices 18 of News International in Wapping, 27 October 2006 -- 19 this is paragraph 35 -- you say in his capacity as 20 chairman of the Editors' Code of practice committee. 21 RJT22, which is our tab 27, page 00440. 22 Does this tie in chronologically with 23 Sir Christopher Meyer telling you you're speaking to the 24 wrong person, speak to the Editors' Code of Practice 25 Committee chair, you finding out who that person was, 51 1 arranging the meeting and this is the meeting; is that 2 right? 3 A. This is not -- yes, you're right in chronology, but 4 I had previously met the secretary, Ian Beales. I'd met 5 him about a month or so previously to explore issues and 6 in my evidence there's a note of the meeting with him 7 and we had a very frank exchange on both sides, and then 8 a month or so later, I had the meeting with Les Hinton, 9 who I knew was a powerful figure at News International, 10 but also was chairman of the code -- the Editors' 11 Committee at that time, and that was the reason for the 12 meeting. I gave this as an example both of the level of 13 awareness but also from the event that followed it. 14 Q. You can see your objectives under paragraph 1: tougher 15 penalties, louder condemnation, plain English Section 55 16 guidance, changes to code within weeks. 17 A. Yes, that was -- I think I had an awareness somewhere 18 the -- one of the virtues of self-regulation. It 19 doesn't take years to go through Parliament. We can 20 change it within weeks. I'm not sure whether the PCC 21 claim that, but that was part of the general culture of 22 self-regulation. I'd come across a lot of this at the 23 Office of Fair Trading and the line was: "Let us 24 self-regulate. We can latch onto things and change them 25 very fast." 52 1 Q. Then in the second part, ICO offers, first -- this is 2 public interest guidance? 3 A. Yes. 4 Q. In other words, displaying what would amount to a public 5 interest defence -- 6 A. Yes. 7 Q. -- wider than the code and then you set out possibly 8 categories: crime, inpropriety, health and safety, 9 misleading statements and activities. 10 A. Just to interrupt, one of the points I was making was 11 that we, by this time, were fully engaged with the 12 Freedom of Information Act and virtually every difficult 13 case we had to handle involved a balancing of public 14 interest considerations so -- and we had published 15 a great deal of guidance on what is the public interest 16 when it comes to disclosure in the freedom of 17 information context, and this was not an exhaustive list 18 but these were the sorts of matters which were covered 19 in our guidance as to what the public interest means in 20 the FOI context. 21 Q. Then you use the term "last-chance saloon" -- was it you 22 who used it? 23 A. I think it was, but I think I was aware that that phrase 24 had been used on a number of occasions in this context, 25 going back perhaps 20 years. 53 1 Q. Yes. Mr Hinton says on the next page "accepts equals 2 problems", so he's accepting that there is a problem. 3 A. I've highlighted that in my evidence because that is my 4 note made that day, and that, I think, is consistent 5 with what I'm saying elsewhere, that everyone I talked 6 to recognised there was a problem and there was he, 7 saying to me -- this is my note: "I accept there's 8 a problem. Something radical will happen." That was 9 his very clear message to me. 10 Q. Although he was hostile to the prison sentence? 11 A. Absolutely. 12 Q. Then you say that within two days of that meeting 13 there's a leader in the Sunday Times under the next tab, 14 RJT23, 29 October 2006. 15 A. Could you remind me of the tab number? 16 LORD JUSTICE LEVESON: 28. 17 MR JAY: Tab 28. 18 LORD JUSTICE LEVESON: 442. 19 A. Thank you, sorry. 20 Yes. This was the leader on the Sunday Times. I'd 21 met Les Hinton on the Friday at about 4 o'clock and over 22 the weekend, picked up the newspaper and there was this 23 very strong leader. 24 I felt that there may have been some connection and 25 I made that point in my witness statement. I have now 54 1 seen the witness statements from News International and 2 they are saying there was no connection. I do no more 3 than what I said in my witness statement. It raised 4 questions in my mind. It seemed to be a coincidence, 5 but I had no inside knowledge at all as to how the 6 editorial came to be written and I've seen the witness 7 statements. It's not for me to make any hard 8 allegations there, but it did seem to me there might 9 have been a connection. 10 Q. That point may be taken further by Mr Rhodri Davies. 11 I'm going to leave it there, Mr Thomas. 12 LORD JUSTICE LEVESON: One comment on it. In the left-hand 13 column, it's said: 14 "He [that's you] did not talk in the interview about 15 the role of the press in protecting the public by 16 exposing the abuses of the powerful. Newspapers had 17 already been doing this for centuries when he took up 18 his post four years ago. This duty of the media is 19 vital in the struggle to maintain an open society, yet 20 Mr Thomas would send reporters to prison for fulfilling 21 it." 22 Is that a fair reflection of what you were proposing 23 in the legislation? 24 A. No, it's not, because I was absolutely clear -- first of 25 all, this had been criminal since 1994. Nothing new. 55 1 And secondly, there was a number of defences, of which 2 the public interest defence is by far the most 3 important, and although almost everything which the 4 press were doing in this area was justified in terms of 5 what I might call genuine investigative journalism, 6 virtually all the stuff I was aware of certainly coming 7 out of Motorman was not something which would have been 8 at all easy to justify in public interest terms. 9 I think I said to the Select Committee it was, you 10 know, celebrity tittle-tattle, and I think it would be 11 very difficult indeed to justify the vast majority of 12 that in public interest terms. I hope I gave that 13 message to you this morning. 14 MR JAY: Yes. 15 A. So I don't think this was a fair comment. This was -- 16 you know, I understand what they were doing. 17 I understand the need for them to articulate their 18 various arguments, but their constant line was what we 19 were trying to do would threaten genuine investigative 20 journalism, and I was -- my response was: for a start, 21 this is not genuine investigative journalism, and 22 secondly, you have a very powerful defence there, and 23 later I came on to say the defence itself could be 24 widened to meet your concerns. 25 Q. Thank you. Then in paragraph -- 56 1 A. I'm not sure I made the point that this editorial, 2 sir -- it was not prompted by anything in the public 3 domain at that time. I had done an interview with the 4 Times which I think appeared on the Saturday. I accept 5 that. That didn't mention this matter at all. It 6 mentioned many other matters. In fact, the editorial 7 itself talks about a "little-noticed report". So my 8 concerns about the article were reinforced by this 9 appeared out of the blue. It wasn't sort of following 10 something in the news over the previous couple of weeks. 11 But equally, I totally accept that the evidence from the 12 editor and others concerned was that there was no 13 connection with my meeting with Les Hinton. I'm just 14 reporting how it appeared to me at the time. 15 Q. Yes. In paragraph 27 you say of your first statement: 16 "Whatever was precisely known about the nature and 17 extent of press misconduct across the industry as 18 a whole, it became increasingly clear that the press 19 were able to assert very substantial influence on public 20 policy and the political processes." 21 And really, you learned that from your experiences 22 derived through watching what happened to the criminal 23 justice and immigration bill, culminating in the 24 compromise which you told us about; is that right? 25 A. Well -- yes. That was when I was directly on the 57 1 receiving end with first-hand evidence, but I mean 2 clearly right from 2006 onwards, there had been 3 a kickback from the press, and they were setting out 4 their counter-arguments. 5 Q. You refer by way of example to Mr Paul Dacre's speech at 6 the Society of Editors conference, given on 9 November 7 2008, RJT46 under our tab 52 at 558. 8 A. Yes. This was him six months after the battle had 9 concluded. 10 Q. Yes. 11 A. I'd had a meeting with him which was actually a very 12 friendly and constructive meeting in the intervening 13 months, and then at Bristol, he set out in his speech 14 his version of events. I can do no more than just refer 15 the Inquiry to what he said. He described me as a 16 "tenacious and principled fighter who I've come to 17 admire". 18 He may not agree after this morning when I got his 19 title wrong, but I was teased, shall we say, at the 20 conference for being described in those terms by 21 Mr Dacre. 22 Q. You didn't have the benefit of a dinner with the 23 Prime Minister, Mr Hinton and Mr McClellan, which was 24 18 months prior to that, which Mr Dacre refers to in the 25 speech. This is three lines down RJT46: 58 1 "The agenda was their deep concern that the 2 newspaper industry with facing a number of very serious 3 threats to its freedoms." 4 The Data Protection Act and the amendment to the 5 criminal sanction was then mentioned, and then in the 6 next short paragraph: 7 "The Prime Minister -- I don't think it's breaking 8 confidences to reveal -- was hugely sympathetic to the 9 industry's case and promised to do what he could to 10 help. Over the coming months and battles ahead, 11 Mr Brown was totally true to his word." 12 It might be said though that Mr Brown simply 13 followed where his principles were taking him and he 14 wasn't listening at all to blandishments or otherwise 15 given by Mr Dacre and Mr Hinton. Is that not a possible 16 fair explanation of this? 17 A. I don't think it's for me to say one way or the other. 18 I mean, I've set out my involvement. Mr Dacre's speech 19 sets out his. I don't know what happened between these 20 various stages. I can speculate but I don't think it's 21 for me to speculate. 22 Q. Mr Dacre certainly had the ear of Mr Brown over dinner. 23 That's -- 24 A. I think there was a general feeling that people at the 25 head of newspapers were very influential with the 59 1 politicians and this perhaps was an example of that. 2 And although they rested their case, as I said just 3 now, on the threats to investigative journalism, I was 4 surprised by how hard they were fighting, and it really 5 left me with a message that we were challenging 6 something which went to the heart of much of the -- 7 certainly the tabloid press activity. 8 Someone once said to me: "You do realise that you 9 are actually challenging their whole business model?" 10 Maybe that's one reason they were fighting so hard, 11 because on the one hand, they were not publicly 12 accepting this sort of thing went on. On the other 13 hand, they were fighting very hard to avoid the 14 consequences of the law as we saw it. 15 MR JAY: Mr Thomas, I am very much nearing the end but we 16 need to deal with section G and H of your first 17 statement. I think as we've been going for an hour and 18 twenty minutes -- 19 LORD JUSTICE LEVESON: Yes, let's have a break. Thank you. 20 (3.21 pm) 21 (A short break) 22 (3.28 pm) 23 MR JAY: Mr Thomas, the current situation, please, G. 24 Mr Graham will be giving evidence to the Inquiry 25 in January to bring us up to date, as it were, but you 60 1 rightly say in paragraph 44: 2 "My impression -- and this was reinforced 3 anecdotally by what my team were telling me between 2006 4 and 2009 -- is that press misconduct of this type set 5 out in the two ICO reports and in this statement largely 6 ceased after 2006." 7 And then you refer to a quote from the Independent 8 on 10 August 2006. We can go to the very bottom of it, 9 in the first box on the next page: 10 "What was a flood of stories stood up in this way is 11 now a trickle." 12 Then you refer to Mr Dacre's speech at RJT46, which 13 is really a very strong warning shot across the bows of 14 the press, isn't it? 15 A. Well, that's from Paul Dacre. 16 Q. Yes. 17 A. Yes. 18 Q. RJT46 is under -- well, in fact we've seen it, haven't 19 we? At paragraph 45: 20 "What Paul Dacre said then was consistent with what 21 he told me when he asked to see me on 4 June 2008 in his 22 letter to me of 25 July 2008." 23 That's our tab 50. RJT44, page 00555, where he 24 thanks you for coming to see him: 25 "It was good to see you and subsequently to watch in 61 1 admiration the way your body is changing the landscape 2 of freedom and secrecy in this country. As promised, 3 I am now writing to you about the progress we're making 4 over DPA. You already know about the various 5 undertakings at Associated Newspapers to ensure that our 6 journalists understand and comply with the DPA, 7 especially in regard to Section 55, and at our very 8 useful meeting, I promised you an update on the various 9 other industry initiatives at or on the DPA." 10 At the bottom of the page: 11 "Work is under way on an industry-wide education and 12 information notice which will be made available to all 13 journalists." 14 The notice will be distributed digitally, et cetera. 15 Third paragraph: 16 "We are planning during the autumn to carry out 17 a cross industry survey on data protection issues to 18 gauge levels of awareness, information and education." 19 That is all positive news, isn't it? 20 A. Yes. I had met him previously before then when he had 21 been asked by the Prime Minister to undertake a review 22 of the 30-year rule, which had an impact on the freedom 23 of information legislation. He asked to see me then. 24 Then my only other contact was this meeting I had 25 with him in whenever it was, June, and it was a charming 62 1 meeting. We both recognised there had been a battle. 2 We both recognised that we'd had our respective 3 positions and he went out of his way to tell me that 4 within the Mail group newspapers and, I think, more 5 generally across the industry generally, that what we 6 had done had sent shockwaves and obviously the 7 imprisonment of the two people under the RIPA matter had 8 also had a big influence and that they were determined 9 to clean up their act and were cleaning it up. 10 Q. Yes. In terms of regulatory reform, Mr Thomas, you're 11 not suggesting -- in any event, it would be outside the 12 remit of this Inquiry -- wholesale changes to the UK 13 data protection regulatory framework. You are arguing 14 for -- and you've already made this plea to us -- an 15 immediate ministerial order to activate Section 77. 16 Towards the end of paragraph 49, you say: 17 "There remains a case for the ICO to publish 18 a statement of prosecution policy along the lines of the 19 draft in early 2008." 20 We should identify that. It's tab 42, RJT36, 21 starting at page 527. 22 If you look forward to page 529, what you're 23 furnishing there is some general guidance on public 24 interest, either for the purposes of bringing 25 prosecutions or also for the purpose of providing 63 1 a gloss on what that means in Section 55; is that 2 correct? 3 A. That is correct, Mr Jay. This was drafted at fairly 4 short notice towards the end of January, when we first 5 got wind of the concerns being expressed by the media, 6 and one of the concerns was yes, there is a public 7 interest defence, but it's very uncertain and no one 8 knows where they stand. 9 So my reaction was: well, let's draw upon our 10 freedom of information experience and put together 11 a note on this. I'm not -- I don't think this was 12 published during my time or indeed subsequently. I'm 13 not quite sure what's happened since I left the office, 14 but although it was done in quick order, I look at it 15 now and I think actually it is still quite helpful, and 16 I wouldn't want to do very much changing to it. I think 17 it might be polished a little bit, but I think it does 18 set out very clearly that it is not that difficult to 19 identify the major public interest considerations in 20 this area. 21 Q. Yes. 22 A. And of course, if the defence were to be widened, as the 23 prospective change in the law anticipates, there would 24 be some modification to this note, but the substance of 25 what is public interest I don't think would change very 64 1 much. 2 Q. Thank you. I'm not going to read it out, given the 3 time, but we'll certainly take this into -- 4 A. But I would just say, Mr Jay, that all the stuff that 5 I saw from the Motorman evidence didn't come near this 6 sort of category. It was what I think I said to the 7 Select Committee. I haven't seen a whiff of public 8 interest. It was tittle-tattle. It was fishing. There 9 may be one or two examples, but they would be 10 exceptional. 11 Q. Finally, Mr Thomas, I need to pick up on a number of 12 points others have given to me. 13 The first is a general point. Did you invite the 14 editor of the Sunday Times to attend an interview under 15 caution in 2003 in respect of possible breaches of 16 Section 55 in relation to Lord Levy's tax affairs? 17 A. I have no memory of that whatsoever. I suspect it was 18 actually 2002, not 2003, or perhaps News International 19 might check their dates on that. 20 When I got to the office, there was sort of a casual 21 comment there had been a problem with Lord Levy some 22 time earlier. I did telephone Francis Aldhouse on 23 Wednesday this week saying, "What's your knowledge of 24 this, because it's been raised by News International?" 25 He said to me that it rang a faint bell, but he had 65 1 nothing more to contribute than that. 2 I'm sure something happened. I personally don't 3 know what it was, and nor does Francis Aldhouse have any 4 ability to help us. 5 If that had been the case -- and can I speculate? 6 If the Office had invited the editor and had been 7 rebuffed, that might perhaps have influenced people at 8 the investigatory level as to the problems of 9 interviewing people from the press. I don't know. 10 That's before my time and I'm afraid I don't know if the 11 office has searched its records for anything on that 12 because it's only surfaced in the last few days, but 13 I have no personal knowledge of that at all. 14 Q. When you were Commissioner, were journalists or editors 15 on any occasion, to your knowledge, invited to attend an 16 interview under caution in respect of possible breaches 17 of Section 55? 18 A. No. 19 Q. The argument against the introduction of a prison 20 sentence runs along these lines: that it does have 21 a chilling effect on genuine investigative journalism 22 because of uncertainties regarding the scope and content 23 of the public interest defence, so that even unwittingly 24 it will have a serious chilling effect, which you 25 haven't properly taken into account as an argument. 66 1 Given the importance of Article 10 and the importance of 2 a free press in a democratic society, the pendulum 3 should really swing the other way. 4 Can I invite you, please, to consider that argument? 5 A. I totally and completely understand and support the 6 freedom of the press, not least in holding governments 7 and those in power to account. My evidence contains 8 words to that effect. I totally recognise the need for 9 balance in this area. 10 But what I said at the time -- and I perhaps repeat 11 now -- first of all this has been a criminal offence 12 since 1994. We're not seeking -- never have been 13 seeking to change the substance of the law. The debate 14 was only about the penalty, and I would assume that no 15 journalist or editor wants to have a criminal 16 conviction, whatever the sanction. 17 Secondly, to the extent it had a chilling effect on 18 unacceptable press behaviour, then I would welcome that. 19 I felt -- and I said at the time -- that the whole point 20 of a deterrent is to stop illegal activity from being 21 carried out. 22 And I address the point more explicitly, first of 23 all with the draft prosecution statement that we looked 24 at ten minutes ago, but I also said -- and I said this 25 to members of the various associations, the Code 67 1 Committee and in Select Committees -- I said that any 2 journalist seriously justifying what they're doing in 3 public interest terms at the very least should make 4 a note of what they're doing, and if they were to wave 5 that in the face of a Commissioner later, that would be 6 a very serious inhibition on a prosecution later. They 7 should also seek legal advice in those situations and 8 they should seek the authority or the say-so of their 9 editor or somebody with suitable authority. 10 But the sort of scale of the activity that we saw -- 11 I'd almost describe it as industrial -- engaging or 12 buying information from private investigators which at 13 least must be a risk of coming near to criminality, 14 unless they could document very clearly what they were 15 doing in public interest terms, then they were going to 16 be at risk. 17 I said that if they did that, I did not think that 18 it would have any sort of chilling impact on the -- 19 genuine investigatory journalism. If you look at the 20 second of our reports, we included a quotation from the 21 Observer newspaper in August 2006: 22 "Occasionally all newspapers that turn over stones 23 will need to do exceptional things and need that freedom 24 if they are to be effective watchdogs, but such 25 investigations can't be generalised trawls for titbits, 68 1 a covert sweep for something or other, even if only a 2 Palace gossip paragraph. Condone that, and the kind of 3 seamy wheezes alleged here will poison the well for all 4 journalism." 5 And there was a similar article at the time of the 6 Glade case at Blackfriars by Roy Greenslade, I think in 7 the Evening Standard or perhaps the Guardian, making 8 some very similar points and actually saying that the 9 media ought to welcome what we were doing on this front. 10 Q. Thank you. 11 In relation to ex-directory numbers, do you accept 12 that the demands of what is known as the Reynolds 13 qualified privileged defence in libel, which encourages 14 responsible journalists to contact a potential target in 15 advance of publication to put the allegation to him or 16 her, means that getting in touch with the subject of 17 stories is both important and entirely legitimate? 18 A. It's important and it's legitimate. What is not 19 acceptable is to either engage in or to be the customer 20 of illegal activity. There are ways and means of 21 getting hold of people other than using stolen data from 22 inside, for example, telephone companies. 23 From time to time, the media need to get in touch 24 with me. It's not that difficult to approach the 25 organisation with which someone is associated and to 69 1 say, "We need to get in touch with Mr Thomas very 2 quickly. Can you please pass on this message?" I get 3 those on a regular basis and that is the correct way to 4 behave. It is not correct to rely upon information 5 which was obtained by deceit or deception or corruption. 6 Q. Do you accept that in many cases there may have been 7 a public interest defence in stories which journalists 8 were writing? This, of course, is in relation to the 9 Whittamore material. 10 A. I said just now that I saw nothing at all which struck 11 me as being justifiable in public interest terms. 12 I also said earlier that I'm not condemning every single 13 transaction. I gave the example of the minister who had 14 resigned from the government. Perhaps that might have 15 raised public interest concerns. 16 I'll also share with you, in our report we 17 documented some examples of ordinary people being caught 18 up in this, which I felt particularly strongly about. 19 At the time -- how can I put it? No one cared that much 20 about the celebrities and we understood that and we were 21 concerned with the protection of the private individual. 22 We gave examples, if I can just turn up internal 23 page -- 24 Q. Is this the first report or the second? 25 A. The first of our reports. 70 1 Q. RJT1? 2 A. Yes. If you look at paragraph 5.10 on page 17, the 3 internal page -- I don't have your page number -- 4 Q. 00298, yes. 5 A. You see where I'm going on this. We gave some examples 6 of private individuals. The first was a painter and 7 decorator, and I remember being told that he couldn't 8 understand why he was on the list of Whittamore's 9 targets. And then apparently -- I pick this up -- he 10 worked it out for himself. He had been painting and 11 decorating the house of a lottery winner and his van had 12 been parked outside, so somebody had tracked him down 13 from the registration number of his white van outside 14 the house of a lottery winner. No public interest there 15 that I can think of. 16 The second case, third case: a green grocer, hearing 17 aid technician. 18 The last case I mentioned there -- I've been 19 thinking about this and I'll share it with you. It's 20 a medical practitioner who was doorstepped by a Sunday 21 newspaper in the mistaken belief that he had inherited 22 a large sum of money from a former patient. 23 Now, if there was hard evidence that a GP had killed 24 a patient or contributed to his or her death, then 25 conceivably -- and I use that word advisedly -- there 71 1 might be some sort of public interest justification. 2 But even then, I would say it's a matter of 3 proportionality. If you only have a rumour going around 4 the village and they hadn't investigated themselves and 5 hadn't taken proper steps to involve the police or even 6 do their own investigations, just simply getting hold of 7 that doctor's personal information in order to doorstep 8 him on that particular matter, which indeed proved to 9 have no foundation whatsoever -- I think very hard 10 proportionate terms to justify as being in the public 11 interest. But I do recognise there may be some 12 examples, and that's one which I'm happy to share with 13 you. 14 Q. Final question, Mr Thomas: do you accept that in many 15 cases journalists were asking Mr Whittamore to supply 16 information that was already in the public domain? 17 A. It depends what you mean by "public domain". An address 18 or a telephone number would not normally be in the wider 19 public domain, in the sense of being in the press or 20 being very readily available, but I do recognise that in 21 some situations an address or a telephone number is not 22 a matter of great secrecy or, you know, beyond anyone's 23 sight. 24 On some occasions, I have no doubt that people were 25 using Whittamore or similar investigators to 72 1 shortcircuit -- and we've touched on this this 2 morning -- to get there faster. But I do not believe 3 that justifies the sort of blagging, the sort of 4 deception, the sort of corruption that we came across, 5 just because that number might otherwise have been 6 available by more laborious means. And people only go 7 ex-directory for good reason. 8 MR JAY: Mr Thomas, those are all my questions. 9 I understand that there may be applications by others 10 for short questioning. 11 LORD JUSTICE LEVESON: Yes. 12 Just can I pick up one thing you said just a moment 13 ago, Mr Thomas. You were talking about examples of 14 which you felt particularly strongly and you said: 15 "At the time -- how can I put it? No one cared that 16 much about the celebrities and we understand that." 17 Now, I'd just like to ask you what view you, as the 18 Information Commissioner, had in relation to those who 19 are celebrities? 20 A. Well, I hope I didn't give any sort of misleading 21 impression, sir. Any celebrity has the same entitlement 22 to the protection of the law and indeed self-regulation 23 as much as anybody else. But I'm trying to reflect back 24 to where we were eight, nine, ten years ago, and the 25 fact that in general discourse there was a sort of view 73 1 that celebrities put themselves into the public arena 2 and have to accept some intrusion into their lives as 3 a result of that. 4 What I was trying to say was: therefore, any formal 5 action, particularly a prosecution, was likely to be, if 6 you like, that much more difficult because there will be 7 less sympathy for the celebrity. That was perhaps one 8 of the factors in our mind at the time. That's why, 9 particularly in the reports, I wanted to highlight the 10 situation of people who were not celebrities. 11 I gave the three examples just now coming out of 12 Whittamore, but most of the other examples, where 13 insurance companies, finance companies, law firms had 14 been involved, these were not celebrities at all. These 15 are people who are caught up in insurance claims, in 16 matrimonial disputes, a wide range of activities where 17 this industry was targeting them. 18 I'm in no way suggesting that just because they were 19 celebrities they should not be taken seriously by us. 20 Indeed, I mentioned to Mr Jay that we'd gone to 20 or 30 21 people for witness statements and quite a few of those 22 were people who were celebrities. 23 LORD JUSTICE LEVESON: Yes. 24 A. I don't need to mention all the names now but some of 25 them have already appeared here and others have come 74 1 forward as being -- recognising they were victims. 2 LORD JUSTICE LEVESON: Well, we've seen some of the data, 3 yes. Thank you. 4 Mr Davies? 5 MR DAVIES: Yes. If I may, sir. 6 LORD JUSTICE LEVESON: Shortly, Mr Davies. 7 MR DAVIES: I said about half an hour. I'll stick to that. 8 Questions from MR DAVIES 9 MR DAVIES: Mr Thomas, my name is Davies and I appear for 10 News International. 11 Can I just say for the record -- I'm not going to go 12 into it -- that we do not agree with you on the 13 interpretation of Section 32 of the Data Protection -- 14 A. I'm sorry? 15 Q. We do not agree with you on the interpretation of 16 Section 32 of the Data Protection Act, because we take 17 the view that it does cover steps leading up to 18 publication including, for example, contacting someone 19 to ask them about a story. 20 A. I don't think I was giving any sort of definitive rule 21 in the interpretation of Section 32. I was talking in 22 very general terms. 23 MR DAVIES: It's perfectly -- 24 A. I was not in any way attempting to interpret Section 32 25 today. 75 1 Q. Thank you. 2 Now, you became Information Commissioner in November 3 2002. It was, in fact, on 11 December 2002 that your 4 office wrote to the editor of the Sunday Times, 5 Mr Witherow, asking him to attend an interview under 6 caution under Section 55. 7 A. Well, I -- thank you, you've corrected me. I have no 8 knowledge or memory of that. Can you tell me who wrote 9 the letter? 10 Q. It was a Mr Farrington. 11 A. Well, he was one of the investigators who was a more 12 junior rank than Alec Owens. 13 Q. Yes. When he say he wrote it, he signed it. I don't 14 know who had input into it. 15 A. Well, yes. 16 Q. So presumably you don't recall that the cases that 17 Mr Witherow was asked to attend an interview about 18 concerned Lord Levy and Lord Ashcroft and one other that 19 I needn't mention. 20 A. Lord Ashcroft wrote to me -- well, as you know he made 21 the FOI request in 2006. 22 Q. Yes. 23 A. And either before or after -- I can't recall now -- he 24 had expressed quite strong frustration that my office 25 had not been much use at sorting out his complaints. It 76 1 wasn't the first time. I mean, before I even started, 2 Stella Rimington, who was head of MI5, in her memoirs 3 had written that her personal information had been 4 obtained by somebody and she had recorded she'd gone to 5 my office and hadn't got much joy out of the office. So 6 that was part of the generally background and context. 7 As for Lord Levy, apart from what I said earlier, 8 which is, I have to say, a very, very faint memory -- 9 and as I understood it, before my time. You're now 10 telling me it was two weeks into my time, but I'm afraid 11 I have no personal recollection or knowledge at all. 12 Q. You've said quite a lot about investigative journalism 13 and how that's not to be threatened, but it's quite 14 obvious, isn't it, that if you have a conjunction of the 15 Sunday Times, Lord Levy, Lord Ashcroft, tax and 16 financial affairs, then we're going to be talking about 17 investigative journalism and the public interest, aren't 18 we? 19 A. Well, I don't want to be drawn on matters I don't know 20 much about, but from what I've read in the last few 21 weeks about, you know, the tax affairs of somebody in 22 the public eye, then certainly in that sort of 23 situation, we are approaching the public interest 24 territory, yes. 25 Q. Yes, and nonetheless, your office thought it right to 77 1 ask Mr Witherow to attend an interview under caution. 2 Presumably, you would not be surprised that they got 3 a lawyer's letter back saying this was perfectly proper 4 and Mr Witherow doesn't intend to attend for an 5 interview under caution? 6 A. As you tell me now, I'm not surprised. 7 Q. No. 8 A. And indeed, the paperwork you shared with me on Tuesday 9 principles that point out and I think the matter didn't 10 go any further. 11 Q. No. And you would expect, wouldn't you, that 12 Mr Witherow would have taken advice on Section 55 and on 13 the penalties available under it? 14 A. I imagine so, yes. 15 Q. And what he would have been told then was that they 16 included a fine but not imprisonment? 17 A. Yes. 18 Q. You've confirmed today that in your time as the 19 Information Commissioner, that seems to have been the 20 only occasion upon which a journalist was invited to an 21 interview under caution for a possible breach of 22 Section 55? 23 A. I can only share my knowledge. I mean, you brought to 24 the surface an example which I didn't know about. That 25 was in my first two weeks. But even if it happened six 78 1 months in, I wouldn't necessarily have known about it. 2 I probably would have expected to, but all I can say now 3 is I'm not aware of any example, apart from the one you 4 just mentioned, where we directly approached 5 a journalist or an editor. 6 Q. That example is actually mentioned in the Times article 7 that you complained about, following your meeting with 8 Mr Hinton. Did you notice that? 9 A. Um ... 10 Q. We'll come to it later so -- if you haven't picked it 11 up -- 12 A. I can remember the reference to Lord Levy, yes, and 13 indeed he was on the front page of the Sunday Times that 14 particular day, so obviously there's a connection to be 15 made there. On a separate matter, this was the cash for 16 honours issue. For all that -- what you're saying is: 17 is that public interest? It's certainly getting very 18 much into that territory, yes. 19 Q. Yes. 20 A. But this was not in any way typical of the material 21 coming out of the Motorman inquiry. 22 Q. No, Mr Thomas, and what's certainly troubling about it 23 is this is the only occasion upon which the big stick of 24 an interview under caution was wielded. So one is bound 25 to ask: is it a fair surmise that the reason that 79 1 happened was that your office was under pressure from 2 two powerful and well-connected people to do something? 3 A. I don't see it that way. I mean, powerful, 4 well-connected people would normally write to the 5 Commissioner and say, "I want to bend your ear", and 6 occasionally you had things of that nature happening. 7 I mentioned Lord Ashcroft wrote to me, and I think it 8 was a dead issue by that time, but I don't -- I have no 9 knowledge. I just simply can't help you on that. 10 Q. I see. 11 A. If you're suggesting that we wrote -- what was the date? 12 The second week of December? 13 Q. Yes. 14 A. Well, that would suggest that whatever complaint or 15 issue that Lord Levy had raised had come in some time 16 before I'd started, so it didn't come across my desk is 17 all I'm saying. 18 Q. It was an old complaint as it related to something which 19 happened in 2000, which makes it perhaps all the more 20 remarkable that it was taken up three years later. 21 A. Well, I mean, I made the point this morning. The 22 investigations unit in those days was -- I think I used 23 the phrase "self-contained", and to a certain extent 24 self-governing. I wasn't happy with that, so I changed 25 things there. They were, perhaps, more detached from 80 1 the rest of the office than I was happy with. I can 2 only speculate that the letter would have come in and 3 they would have done something about it. They weren't 4 the most sophisticated of people. They would have -- 5 I mean you mentioned one person's name. He was not 6 a person who I think I ever had a meeting with myself. 7 I recall the name, but no more than that. 8 Q. I don't want to spend a lot of time on this, but it is 9 rather odd, isn't it, that you had this avalanche of 10 information which we've heard of on Operation Motorman, 11 and that didn't lead to any such letter, and this did? 12 A. I just don't know what their methodology was. I didn't 13 know, certainly in those days -- even now, I don't have 14 detailed knowledge of how that team undertook its 15 activities, so I don't draw any particular inference in 16 the way you're suggesting. 17 Q. All right, let's move on to your meeting with Mr Hinton 18 on 27 October 2006. You raise this at paragraphs 35 and 19 36 of your first witness statement. Your meeting with 20 Mr Hinton was, as we've heard, in his capacity as 21 chairman of the Editors' Code Committee. He wasn't 22 wearing a News International hat? 23 A. It was at his office, but you're quite right. 24 Q. What you suggest in those two paragraphs is effectively 25 that immediately after the meeting, Mr Hinton lent on 81 1 the editor of the Sunday Times and a journalist at the 2 Times to write hostile pieces about you? 3 A. I wasn't suggesting anything at all apart from what's in 4 my witness statement. 5 Q. Well, you're -- 6 A. I said the episode raised questions in my mind -- 7 Q. Yes. 8 A. -- about proprietorial influences on editorial 9 independence and freedom. 10 Q. Yes. 11 A. That is absolutely how I saw it at the time. I thought: 12 "Gosh, this is very surprising and strange. Just 48 13 hours or less than that after I'd met the most senior 14 person at News International, here suddenly I'm 15 appearing in a leading article, the lead editorial in 16 the Sunday Times, on something which is not part of the 17 public debate at the moment." 18 I've now seen the witness statements from the editor 19 at the time and also from Mr Linklater, and they say 20 categorically they were not directed by Mr Hinton. 21 I have absolutely no reason to challenge or disagree 22 with that. All I've said was at the time to me, and to 23 others around me, it looked strange. 24 Q. So am I understanding this right: that you are not 25 making any allegation that there was any interference by 82 1 Mr Hinton which led to those two -- 2 A. I'm saying no more than appears in my witness statement. 3 Q. Can I just take a moment to deal with the context at the 4 time, Mr Thomas? You'd published your "What price 5 privacy?" report in May, about five months earlier. On 6 24 July, the government had had opened a consultation 7 period on the proposals for imprisonment for breach of 8 Section 55 and that was a proposal which you had 9 yourself initiated. 10 Since publication of that report, you say in the 11 follow-up report that there had been a growing and 12 substantial level of positive press coverage. So that 13 was presumably going on in October? 14 A. Yes, growing, not exactly an avalanche. But there was 15 more media interest, particularly after Goodman and 16 Mulcaire had been arrest, and I think that began to 17 really lift off the -- 18 Q. Which they had been at that point? 19 A. Yes, indeed. That was August, yes. 20 Q. And you'd given a lengthy interview to the Times, which 21 was published the day after your meeting with Mr Hinton. 22 A. I think the interview had been about two weeks 23 previously, but you're quite right, if was published in 24 the intervening Saturday. 25 Q. And it may be that was not unconnected with the fact 83 1 that there was an international data protection 2 conference in London the following week? 3 A. Um ... I can't recall the timing. I know that that 4 was -- 5 Q. It's mentioned in the interview. 6 A. I was organising and chairing that conference. That was 7 a major preoccupation for me at the time, to have the 8 world's commissioners all coming to London, so I was -- 9 the interview was largely sort of flagging up the issues 10 to be discussed at the conference. 11 Q. Exactly. So you were actually trying and succeeding to 12 get a bit of press coverage for your conference which 13 was coming up. 14 A. We spent a lot of time trying to get press coverage on 15 all sort of things, yes, and this was one of them. It 16 wasn't -- 17 Q. Then the consultation period for the government's 18 consultation paper on imprisonment was actually closing 19 on 30 October, wasn't it? 20 A. Um ... 21 Q. On the Monday? 22 A. I forget the exact date but that sounds about right, 23 about three or four months after it started. 24 Q. So when the Sunday Times wrote a leader on the Sunday 25 upon the desirability or undesirability of imprisonment 84 1 for breaches of the Data Protection Act, it was actually 2 writing it the day before the end of the consultation 3 period on exactly that subject? 4 A. Yes. 5 Q. That seems quite an opportune moment to write such an 6 editorial, hadn't it? 7 A. Except there hadn't been much about our report in the 8 previous three or four weeks. I'm not going any further 9 than I set out in my witness statement. It appears I'm 10 even wrong to raise questions but I did, in my mind at 11 the time, and until I saw the witness statement on 12 Tuesday of this week, when they deny any sort of 13 direction from Mr Hinton, I thought there was 14 a connection. And virtually everybody I've talked to 15 says, "Gosh, that does look rather strange, doesn't it?" 16 But we've now seen what your witnesses have said and 17 I in no way wish to challenge that. 18 Q. Thank you. 19 The other point which would have had a resonance for 20 Mr Witherow, who was the editor of the Sunday Times, was 21 that Lord Levy was back in the news on the front page 22 that Sunday, and it was Lord Levy about whose affairs 23 he'd been invited to an interview by your office three 24 years earlier. So it's not -- there were very, very 25 good reasons why he might have chosen to publish that 85 1 editorial on that Sunday, quite apart from your meeting 2 with Mr Hinton? 3 A. Yes. 4 Q. The other point you make about this meeting at 5 paragraph 35 of your first statement is that you refer 6 to your manuscript note and you say that "that confirms 7 knowledge of misconduct at the highest level". Now, 8 "the highest level" is a reference to Mr Hinton, 9 presumably? 10 A. Yes. 11 Q. I'm not quite sure what you mean by "knowledge of 12 misconduct". 13 A. Well, what I meant was the sort of activity which had 14 been documented in our first report, which had been 15 published some five months previously, and what I had 16 meant was that this produced the prima facie hard 17 evidence at the very least that tabloid journalists were 18 significant customers of private investigators who were 19 breaking the law to obtain information. 20 Q. So essentially -- 21 A. And that's the sort of material which I -- which was 22 documented in our report of 2006. It's the sort of 23 material which I was engaged in many meetings throughout 24 this period with many people, and I wasn't going through 25 chapter and verse, but the -- when I talk about the 86 1 misconduct, that's what I had in mind and that's what 2 I shared with him. 3 Q. I just wanted to be clear about this. The knowledge you 4 were attributing to Mr Hinton is what was to be found in 5 your first report, which had been published five months 6 earlier, and what you had been saying at other meetings 7 and were repeating again at that meeting with him? 8 A. Yes, and I use this example because I think my witness 9 statement said that throughout many meetings and 10 discussions, nobody seriously challenged the thrust of 11 what we were saying, and indeed some went further. If 12 you look at paragraph 33 of my statement, I say the 13 general lines surfacing in many conversations was to 14 accept that some journalists did these things and to 15 indicate thats we had uncovered details of what everyone 16 knew was going on, and then going on to talk about 17 cleaning up our act, et cetera. 18 So this was generally what I was talking about by 19 "misconduct", and from my recollection of that meeting 20 and from the notes that I've made and shared with you, 21 that was the sort of matter which Mr Hinton appeared to 22 accept, and that's my contemporaneous note: 23 "Accept what you say. Something radical will 24 happen." 25 Presumably something radical because he recognised 87 1 that things weren't right. 2 Q. I'm not going so go into the full note of the meeting, 3 but we see again in that note and in fact in your 4 manuscript note that the industry was opposed to prison 5 sentences for breach of section 55? 6 A. Yes. 7 Q. That was not a view which was confined to 8 News International or indeed Associated Newspapers, 9 was it? It was universal? 10 A. Certainly across media organisations. I only had 11 dealings directly with News International and 12 Associated Newspapers, and that was only later, as I've 13 explained. Otherwise, most of my contacts were with the 14 various representative organisations. 15 I refer in my evidence to a bill ordering range, and 16 that was one of the problems we had. We didn't quite 17 know who to talk to. I have a list of the various 18 bodies apart from the Press Complaints Commission: the 19 Editors' Committee, the Society of Editors, the 20 Newspaper Society, the Newspaper Proprietors 21 Association. And we didn't quite know -- I didn't quite 22 know who we should be talking to. 23 Q. I'm not going to venture into that, but the point is 24 that the press, including the Guardian, to take one 25 extreme end of the press, was united on that? 88 1 A. No. I think you'll find the Guardian was a great deal 2 more broadly sympathetic. I'm not sure "supportive" 3 would be the word to use, but I think they recognised -- 4 perhaps I'm wrong in that -- 5 Q. We have their response. If go to tab 29, I think it's 6 towards the back. Yes, page 475. 7 A. Oh yes. 8 Q. "Guardian News and Media takes a different view on some 9 of the issues. Nevertheless, it unreservedly supports 10 the Newspaper Publishers Association's opposition to 11 custodial sentences for journalists who are found by 12 a court to have breached Section 55." 13 A. Thank you. I was simply reflecting that I was aware the 14 Guardian were taking a somewhat different line from 15 everybody else. I couldn't recall the exact detail of 16 all that. I was also aware that the editor of the 17 Guardian, Alan Rusbridger, was voicing a dissenting line 18 when the code changes were made at some later stage and 19 he wanted more prominence to be given to third parties, 20 investigators and so on. But what you're doing here is 21 saying that the Guardian was on a different take but 22 I was wrong to say that they were supportive of 23 a stronger sanction. 24 Q. And that argument that imprisonment was an inappropriate 25 sanction for breach of Section 55 coming from the press 89 1 was an entirely cogent and respectable argument to make, 2 was it not? 3 A. Oh, I've never disputed it. I can see the force of 4 their argument. If I was in their shoes, I would make 5 the same argument. I disagreed with it, but it was 6 a respectable argument. I thought they took it too far. 7 I thought they addressed far too much in terms of 8 investigative journalism, but obviously nobody wants to 9 be regulated more than they have to be, and I'm not 10 surprised therefore that the Guardian, which probably 11 does carry out more genuine investigative journalism in 12 the public interest than perhaps some of the other 13 papers, wanted to have as much freedom as possible. 14 Q. There was also, as I think you know, a legal argument 15 that it would in fact amount to a breach of Article 10 16 to introduce a prison sentence which might apply to 17 journalists. 18 A. Is this the opinion from -- 19 Q. It's Mr White. 20 A. Yes, and that was the one which surfaced at the -- 21 I think the first meeting I had with the minister. 22 I think Mr White actually was at the same meeting and 23 tabled and left that opinion with -- so I recognised the 24 argument. I thought, with the greatest respect, that it 25 was a good argument taken a bit too far, but 90 1 I understood where it was coming from. 2 Q. So essentially what was going on in this campaign was 3 that as you acknowledge, both sides had an argument to 4 make and they both made it very vigorously? 5 A. Yes, yes, yes. 6 Q. The press were, of course, quite entitled to oppose the 7 proposals which you were putting forward? 8 A. Yes, but -- I don't want to keep on saying this, but my 9 response all the time was: this has been the criminal 10 law since 1994, we're not changing anything in the 11 substance of the law, and if you believe you're acting 12 in the public interest, you have nothing to worry about. 13 Q. Well, yes. Of course, the difficulty about that is that 14 opinions about the public interest can vary -- 15 A. Which is why I was quite ready to go along with the idea 16 of widening the defence. 17 Q. We've seen some of that today, haven't we, because you 18 have said that to obtain the telephone number of 19 a minister who has just resigned in order to get 20 a comment from him as to the circumstances of his 21 resignation might -- but you're not sure, I think -- be 22 in the public interest? 23 A. No, I was speculating if I use the word "might", because 24 I was taking a -- not a hypothetical case, but taking 25 a case where I didn't know the full facts, and in that 91 1 situation, I can see the argument, as I could see the 2 argument with the GP I mentioned, but when you are 3 a regulator you look at all the evidence and decide 4 whether to go forward or not. Likewise, if you're 5 a journalist and if you're in doubt, you seek advice 6 before using or receiving information which may or must 7 have come without the consent of the data controller. 8 Q. I want to go on to the publication of "What price 9 privacy now?" You have mentioned that the numbers in 10 the famous league table, as it originally appeared, were 11 wrong in relation to the Sunday Times and indeed 12 consequentially the News of the World, I think. 13 Mr Caseby, who was the managing director of the 14 Sunday Times, wrote to you about that. His letter is at 15 tab 32, I think. 16 A. Yes. 17 Q. Just let me catch up. He starts that letter off by 18 saying that he spoke yesterday with your colleague -- 19 that was the day of publication -- and you may not know 20 this, but of course the first question he asked was: 21 "Where did you get your figures from? Can I see them?" 22 He makes that point over the page at paragraph 3, 23 because he says, "I don't know, because you haven't 24 provided the information necessary to allow the 25 Sunday Times to defend itself." 92 1 And so on. So he's complaining vociferously, 2 I think one could reasonably say, that you have made 3 allegations against the Sunday Times and not provided 4 the information so they can examine them. 5 A. He also knew, by the way -- and that's in that letter on 6 the second page -- he knew the names of the four people 7 who had been prosecuted in Blackfriars, although the 8 case had not achieved any significant publicity at all 9 and he knew the names of the celebrity victims who were 10 mentioned in court. So to my mind, that said straight 11 away that people at the top of the newspaper industry 12 knew a great deal about what had been going on. So the 13 names are mentioned in paragraph 2 of this letter. 14 Q. Yes, indeed. 15 A. I just mention that in passing. So that again shows 16 that we were having an impact. People were aware of 17 what was going on. 18 Q. Well -- 19 A. You're quite right to say that we did not consult him in 20 advance of the league table -- publication of the league 21 table. 22 Q. Then your reply is at tab 34. 23 A. Yes. 24 Q. On the second page of that, in paragraph 3, you make it 25 quite clear that you're not going to provide the 93 1 identities of individual journalists or details of the 2 transactions. 3 A. And the reason for that was section -- we haven't talked 4 about this today, I'm afraid, but section 59 of the Data 5 Protection Act. 6 Q. If that -- 7 A. If I just say straight away, because this is important, 8 when we published the report -- the second report, we 9 had a lot of debate inside the office as to whether we 10 could even name the newspapers, and in the end the 11 advice I received was that given it's a statutory 12 function to lay a report before Parliament, given the 13 wording of section 59, it would be safe -- not cut and 14 dry, but they thought it would be safe to identify the 15 newspapers concerned but categorically not safe to 16 identify the journalists, and even today in this 17 Inquiry, I'm told that the names are the journalists are 18 not being bandied around. 19 For that reason, in my exchange with Mr Caseby and 20 my exchanges with the Select Committee, with my 21 exchanges with other people, the Press Complaints 22 Commission and so on -- throughout this, I would say, 23 "I'm very sorry, I'm not permitted to share the details 24 of what we obtained under search warrant powers." 25 I regretted that. I felt it was uncomfortable and 94 1 difficult, but Section 59 was taken incredibly seriously 2 inside my office. We had cabinet papers. We had some 3 highly sensitive stuff. We were absolutely focused all 4 the time that nothing should leave the office which 5 should not leave the office. 6 It's a criminal offence for the Commissioner or 7 a member of the Commissioner's staff to break 8 Section 59, so we took it incredibly seriously, and 9 that's the reason why we felt unable to share the 10 details with Mr Caseby of exactly who the journalists 11 were. 12 Q. And that remained your position throughout your tenure 13 as Commissioner? 14 A. Indeed. 15 Q. I know that my successor has now given, I think, your 16 clients and Associated Newspapers access to the papers 17 and he also gave the chairman of the Select Committee 18 some access, and I can understand how he reached that 19 conclusion, because the Section 59 does allow that in -- 20 again, back to our public interest terms. But the 21 advice I was receiving throughout was that that had to 22 be kept sacrosanct. 23 Q. So that -- 24 A. There's no disagreement. Time moves on and that's his 25 judgment now. 95 1 Q. Then you go on in that letter to apologise for the error 2 in the figures. 3 A. Yes. There was one -- I mean, let me say straight away 4 that we spent nearly a month going back on the figures. 5 We had an investigator who was a scrupulous person who 6 looked at it very closely indeed, and he discovered 7 there had been one error. It appeared to have arisen 8 from the original inputting, which Mr Owens had 9 contracted out to the company which inputted the data 10 into the database. And we put our hands up straight 11 away and said, "That's the only mistake we've found. We 12 apologise." Unqualified apology, and we put out the 13 correction to everybody who received the report. 14 I was very distressed at that. It was unfortunate, 15 to put it at its lowest. The investigator concerned, 16 his boss came to me and said that he'd been mortified 17 that it got through. But there it was; it was a mistake 18 and we apologised to your client. 19 Q. You will appreciate from the Sunday Times' point of view 20 it's not a terribly happy situation about the basis of 21 the numbers and, secondly, the numbers had turned out to 22 be badly wrong. 23 A. Well, we corrected them and we wrote to Mr Caseby, 24 I wrote to him personally, and I didn't receive any 25 further correspondence from him. 96 1 Q. I'm not going to spend any time on figures, Mr Thomas, 2 but can I just ask you this question: the total number 3 of transactions in the league table in "What price 4 privacy now?" we all know was 3,757, and in the draft 5 letter we have to Mr Ashcroft under the -- sorry, Lord 6 Ashcroft under the Freedom of Information Act, the total 7 number of definitely illicit, I think is the tag, 8 transactions is over 5,000. Are you able to explain any 9 connection or relation between those? 10 A. No, I can't. I wasn't involved in the direct 11 compilation of this table. I know the figures don't 12 completely match together. I've done my best to explain 13 in my witness statements what I think was happening 14 there, but I think I've said several times, you know, if 15 this is important to the Inquiry to narrow down 16 precisely the numbers, then I would invite the Inquiry 17 to ask the current Commissioner to share all the 18 material with you. 19 I am aware that this Inquiry has had the database 20 from Mr Owens, and I have to say that I am 21 extraordinarily surprised that he held that database. 22 I don't know the circumstances, I've read his statement, 23 but I understand the current Commissioner is ready and 24 willing to share the data with this Inquiry, and it 25 would seem to me that is the correct course. 97 1 Q. It's with that in mind, partly, that I'm not going to 2 ask you anything else about the figures. 3 A point that is picked up in the press articles 4 we've referred to, but in the interests of time we've 5 not gone to, is the issue of addresses and telephone 6 numbers, and as has been pointed out a number of times, 7 much of a journalist's job consists of talking to people 8 in person or by telephone; you accept that? 9 A. Yes. 10 Q. And you can't do that if you can't find out where the 11 person lives or what their phone number is. 12 A. But you can't steal their number. 13 Q. Well, unless there's -- 14 A. Or have it stolen. 15 Q. The question is whether the line is in the right place, 16 and I just wanted to ask you about that. In the case of 17 the state, the police force and various other 18 manifestations of the state, they have a huge panoply of 19 powers to obtain information. 20 A. Mm. 21 Q. The journalist, as Mr Leigh pointed out the other day, 22 doesn't have any powers to obtain information; all he 23 can do is ask. Do you think that in potentially 24 criminalising the obtaining of basic information as to 25 where somebody lives and what their phone number is, the 98 1 law might perhaps be going too far? 2 A. Well, first of all I would say it has been the law since 3 1994. It is not my job as was the regulator to question 4 whether that's right or not, but I have to say 5 instinctively it seems entirely right to me. If 6 somebody bribes somebody inside a telephone company to 7 get information out, that seems to me deplorable, and 8 that's the lower end of the scale. We're talking also 9 about health records, criminal records, tax records and 10 so on. 11 Q. I -- 12 A. You're talking purely -- 13 Q. (overspeaking) strictly to address telephone numbers? 14 A. I say at the very least, just to put it at its lowest, 15 this Inquiry's looking at ethical practices. At the 16 very lowest, it seems to me that a journalist who is 17 regularly using a private investigator, paying quite 18 large sums of money for information which, at its 19 lowest, prima facie was not obtained through legitimate 20 means, that raises a serious ethical question. 21 Q. But you consider, do you, that it should be possible for 22 somebody to make it almost impossible to find out where 23 they live and what their telephone -- 24 A. No, I think there's a non sequitur in the point you're 25 making. There are various ways in which people can be 99 1 talked to, but people are entitled to a private life. 2 That's what data protection is all about. If I choose 3 to make my number ex-directory, it's not, as has been 4 suggested, to prevent marketing calls. You put your 5 name, your phone number on the telephone preference 6 service and that excludes marketing calls. It's because 7 you don't want the world at large to know your telephone 8 number. That's why mobile phone numbers by and large 9 are not in directories and so on. People are entitled 10 to their privacy. And to have an organisation like 11 British Telecom being penetrated, and they were the 12 victims as much as anybody else, seems to me entirely 13 wrong. 14 Q. I'm not aware of the facts of that, Mr Thomas, so we 15 can't go into -- 16 A. Well, it was in our report. 17 Q. But there is a tension, isn't there, between people 18 wanting to keep their numbers private and other people, 19 journalists, who want to talk to them? 20 A. I wouldn't put it as high as a tension. Clearly some 21 people want things which intrude into private life, and 22 if I choose to keep my telephone number private, if 23 I choose to keep my tax records private and bank records 24 private, if I choose to give them to you or share them 25 with you, fair enough. But the whole point of privacy, 100 1 article 8 in human rights terms, data protection, is 2 that people are entitled to have their personal data 3 kept confidential by the organisation which holds it, 4 and they have the right to choose who has the 5 information. So I am resisting, I'm afraid, what you're 6 saying. If you're saying just because a journalist 7 wants to talk to somebody they should be entitled to 8 breach that level of privacy, I don't agree. 9 Q. You've touched on earlier today the question raised by 10 the News International evidence of databases of 11 ex-directory numbers. There was mention of a number of 12 48 million. Can I just ask you to look at the paperwork 13 on that. I think you have the statement of PS 14 Armour(?), who is the editorial legal director at Times 15 Newspapers. I don't know how you have it, but if you 16 can go to exhibit 5 to that statement -- 17 A. Is that PS5? 18 Q. Yes. 19 A. Yes. 20 Q. There is there some material from an organisation called 21 GB Group, and if you go three pages into the exhibit, 22 there is what's really an article heading, "Blow to UK 23 liquidity as ex-directory figure hits 58 per cent"? 24 A. Can I say, I only had these papers on Tuesday. I've had 25 a very busy week before now. I've not looked at these 101 1 in detail at all. 2 Q. No. 3 A. But I generally got the impression that here's a company 4 claiming to have lots of ex-directory numbers and that 5 surprised me. 6 Q. That is exactly what they're doing. They make the point 7 that ex-directory numbers are now as high as 58 per cent 8 and, because they're running a commercial service, they 9 make the point that this makes it terribly difficult for 10 creditors to track down their debtors. 11 Three paragraphs from the bottom of that page, you 12 see the wonderfully named: 13 "GP Accelerator e-Trace V4 delves into the largest 14 pool of landline and mobile telephone numbers available, 15 sourced from a range of previously unavailable 16 datasources and following close consultation with the 17 Information Commissioners Office." 18 A. Well, I saw somewhere else a reference to 19 "consultation". I mean, this means nothing to me. Lots 20 of organisations make this sort of claim. If I was 21 Commissioner right now, I'd be wanting to look into this 22 in a great deal more detail. 23 Q. Yes. 24 A. Frankly, this quite shocked me. I only glanced through 25 this, but when they're claiming to have a virtual 102 1 database of every ex-directory number and mobile phone 2 directories, I was really quite shocked by this. Your 3 clients have done a great service to bring this to the 4 surface, and I'm sure my successor will want to look at 5 this very closely. 6 Q. It's not difficult to find, I can sure you, Mr Thomas. 7 A. Well -- 8 LORD JUSTICE LEVESON: But if it's right, Mr Rhodri Davies, 9 presumably there is no need even to think about unlawful 10 mechanisms to get telephone numbers in the future,. 11 A. Nor to pay 65, 70 to do it. 12 LORD JUSTICE LEVESON: We're not both arguing with him! 13 A. Sorry. 14 MR DAVIES: If I put the figures straight first, I think 15 what this is saying is that they -- well, it is saying 16 they have a database of about 50 million numbers and 17 I think if one translates the paragraph underneath that, 18 what you come out to is that about 10 million of them 19 are ex-directory. So we're not actually talking about 20 48 million ex-directory numbers. They have a competitor 21 which has much the same. 22 The source of these numbers, fairly clearly, 23 Mr Thomas, is I think something you referred to this 24 morning. They are numbered which people have given out 25 to websites, questionnaires, organisations they had 103 1 dealings with or contract with in which they have not 2 stipulated that the number must be kept private. 3 A. You're drawing me and I was drawn this morning to 4 speculate. I don't know about this. I think these are 5 questions, frankly, for the current Commissioner. If 6 he's going to be called later, I am sure he can brief 7 himself before he comes here and give you some answers, 8 but I don't think it's for me now to comment on this. 9 Q. I'm sorry, this is on numbers. Mr Jay touched on the 10 point this morning that in the whole database, and 11 I haven't done this exercise, there are only about 12 300 -- I think he said 300 or a few hundred -- what one 13 might call hard cases: criminal records checks, DVLA, 14 friends and family, that sort of extreme end of the 15 spectrum of what ought to be secure information. The 16 rest of it therefore is almost entirely names and 17 addresss and the yet more innocuous stuff. 18 A. No, I'm sorry, you keep saying innocuous, but I have to 19 strongly disagree with that. If information has been 20 obtained in the sorts of ways that Mr Whittamore was 21 using from a data controller without the consent, that 22 is a criminal matter. 23 I'd also say it's an ethical issue, and to simply 24 say because addresses and phone numbers are innocuous, 25 that doesn't stand up. We gave examples in our report 104 1 of battered women who were escaping their husbands and 2 took enormous lengths to suppress their current address. 3 Many people do not want their telephone number or mobile 4 phone number bandied around. So just to say an address 5 is innocuous or a mobile phone number is innocous 6 I don't think stands up. If that had only been obtained 7 by bribery or by blagging or by deception, then I do not 8 think that's acceptable. 9 Q. I actually said "yet more innocuous" -- 10 A. You can put these on a scale, of course you can. I can 11 understand that. 12 Q. Yes. 13 A. And you could say that criminal records and tax records 14 are at one end of the scale and addresses at 15 ex-directory phone numbers are at the other end of the 16 scale. 17 The point I want to press very firmly indeed is if 18 they have been obtained illegally from inside British 19 Telecom or any other phone company or likewise, then 20 that does not stop it being a criminal matter, nor 21 should it, in my mind. 22 Q. In that respect -- 23 A. Don't forget, the British Telecoms were amongst the 24 strongest organisations saying to us, "We want to work 25 with you to stop this sort of activity." They knew they 105 1 were exposed. 2 Section 55 is cast in terms of a data controller is 3 the victim of the crime. The individual is obviously 4 also a victim, but they were the ones, and also DWP, 5 HMRC, the tax people, we had protocols with them. 6 They're saying, "We are vulnerable. We want this to be 7 stopped."So you cannot say it's just an address, it's 8 just a phone number, therefore it's innocuous. 9 Q. The point -- and I'm not going to take time on it -- but 10 it is a good deal easier, isn't it, to find 11 a justification which could reach a public interest 12 justification for getting the basic information to get 13 hold of someone, things such as an address and 14 a telephone number; justifying getting someone's medical 15 records is an altogether different -- 16 A. I said earlier in one of Mr Jay's questions that when 17 you start to look at the public interest test, you look 18 at public interest justification, but it's also 19 a balancing proportionality aspect there. 20 Q. Absolutely. 21 A. And that's why I speculated that the case of the 22 minister resigning over a weekend and just getting his 23 number, although prima facie that may have fallen within 24 the section, that might well have been a case we'd say 25 we wouldn't take any further because probably a good 106 1 defence could be mounted. 2 Q. Yes. 3 A. But I have to say yet again, that was not typical, 4 nothing like typical of the cases that we were seeing. 5 And although you made the point that the majority of the 6 cases were, in your language, only addresses or phone 7 numbers, I would also say the vast majority were nothing 8 to do with public interest considerations along the 9 lines I've just mentioned. 10 Q. Just so we agree on the analysis, I think this is right, 11 it is as you say a balancing act, and you're looking at 12 the one side the strength of the privacy interest, which 13 varies between addresses and medical records, and on the 14 other side the strength of the public interest in 15 obtaining the information. 16 A. I wouldn't want to finalise that as analysis, but it's 17 along those lines, yes. 18 Q. Finally you tell us at paragraph 42 of your first 19 statement, and you've said this again today, that your 20 goal was to stamp out press misconduct for the future 21 and that was a goal which you had set upon in 2006 or 22 thereabouts? 23 A. Sorry, could you -- 24 Q. It's paragraph -- 25 A. My goal was to stamp out the market. I don't know that 107 1 I -- that was talking to the Press Complaints 2 Commission. My wider goal was focused on the market as 3 a whole. 4 Q. Yes, sorry. 5 A. But my goal with the PCC, yes. 6 Q. I'm afraid I am focused on the press. So far as the 7 press was concerned, you wanted the press to clean up 8 its act? 9 A. Yes. 10 Q. For the future? 11 A. Yes. 12 Q. And that is in fact what you got? 13 A. Apparently. I may have stuck my neck out by saying that 14 anecdotally it appears to have been cleaned up, but just 15 let me quote from the current Commissioner going to the 16 Justice Committee in October. He said: 17 "My great concern about Section 55 is not very much 18 to do with the press, but there's lots and lots of 19 evidence of Section 55 being breached on a quite routine 20 basis and it's now mainly about financial service, debt 21 collection, claims management companies and also some 22 quite worrying interference with the course of justice, 23 perhaps attempted jury nobbling or witness tampering, 24 that's the real issue." 25 So he is saying, and he's in the driving seat now, 108 1 that it appears that the press are not heavily engaged 2 in this activity, and I am -- that was certainly my 3 impression also in the last couple of years of my 4 tenure. 5 MR DAVIES: Thank you very much, Mr Thomas. I have no more 6 questions. 7 LORD JUSTICE LEVESON: Thank you. 8 MR CAPLAN: Sir, I hope just five minutes, or I'll be very 9 unpopular. 10 LORD JUSTICE LEVESON: Certainly. Well, don't worry about 11 your popularity. Too much. 12 Just a moment, Mr Caplan. We're going to have a 13 minutes before we do it. 14 (4.35 pm) 15 (A short break) 16 (4.37 pm) 17 LORD JUSTICE LEVESON: Yes, Mr Caplan. 18 Questions from MR CAPLAN 19 MR CAPLAN: This morning you were asked a good deal about 20 what you had not done. I want to ask about what you did 21 do and what the result was. 22 Firstly, please, you told us that your concerns were 23 not just about improper access to personal data by 24 journalists but by others in society as well; is that 25 right? 109 1 A. Indeed. 2 Q. Would they include solicitors' firms? 3 A. There were some examples of law firms, particularly in 4 the matrimonial area. Indeed, I had a letter from 5 a Court of Appeal judge saying that he was starting to 6 ask questions where evidence was coming in to cases 7 where prima facie it had come, for example, from a bank 8 account, which shouldn't have come, and saying unless 9 the parties could demonstrate they received the 10 information lawfully, he wasn't prepared to allow it to 11 be admitted into evidence. 12 Q. Banks? 13 A. Mainly finance houses, but they were often subsidiaries 14 of banks. 15 Q. Insurance companies? 16 A. Yes. There's an example of an insurance company in our 17 report, which I needn't go into detail now, but a quite 18 shocking example of where somebody's mother -- 19 85-year-old mother was telephoned by a blagger and was 20 impersonating a tax official saying that her son was 21 entitled to a tax refund. That was taped and the BBC 22 broadcast that example. 23 Q. One other example: local authorities? 24 A. Yes, we came across some examples of local authorities 25 who were using this sort of activity to chase up council 110 1 tax and all that was stopped as soon as our report was 2 published. 3 Q. You were keen, were you not, obviously as Commissioner, 4 to promote a better understanding about data protection 5 and to change working methods and attitudes. That was 6 your principle goal? 7 A. Yes. There's quite a big question there. When 8 I started, data protection had quite a poor reputation. 9 It was seen as a bit nerdy, not taken very seriously 10 across many organisations. I think my office probably 11 had some responsibility. I used to say that, you know, 12 we were seen outside as the temple of data protection 13 and being the high priests of data protection, and 14 I wanted to destroy that sort of approach, and therefore 15 I was trying to make us much less esoteric, much more 16 avoiding the technical language. I mean, a data subject 17 is a man, a woman, a child, not a data subject. 18 So I took a much more practical down to earth 19 approach. Our slogan was that we are here to help 20 organisations who want to get it right, but we'll be 21 tough on those organisations which don't want to get it 22 right, and I think I started, quite soon after I became 23 Commissioner, in our speeches, our strategies, annual 24 reports and so on, to say: this is going to be the new 25 approach to data protection. 111 1 Q. But again, taking things fairly shortly after the length 2 of time you've been giving evidence and at this time of 3 the day, summarising, you must have been fairly pleased, 4 were you not, with the response of the press to your 5 attempts to promote a change in working methods and 6 attitudes? 7 A. Well, we're not going to go over all the same ground 8 today clearly. 9 Q. No, I don't want to. 10 A. But it seemed a tough fight at the time and it didn't 11 seem we were making very much progress. But I suppose 12 my meeting with Mr Dacre, which I mentioned earlier -- 13 Q. Yes. 14 A. He was very, very forthright on that occasion. I give 15 him credit to that and he said, "You've really told us 16 things we didn't know about before. We're now really 17 cleaning up our act." 18 Q. Yes, and in 2006, you published two reports and you 19 yourself have told this Inquiry in your statement that 20 since 2006, until you left the office in 2009, you 21 really had few or no complaints, I think, regarding the 22 press; is that right? 23 A. I think that's broadly right. There may be one or two, 24 but not many. 25 Although I have to say if I can say now, your 112 1 clients' witness statement said they were still using 2 Mr Whittamore in 2007. That really surprised me. It 3 may have been a mistake but I hope it was a mistake. 4 Q. Deal with the evidence in a minute. I'm going to come 5 to what happened with Associated. 6 But as far as you understand it -- and we'll hear 7 from Mr Graham, you've mentioned the evidence he gave to 8 one committee -- there's relatively little cause for 9 complaint about the press since he's taken office in 10 2009? 11 A. That's right, and that's why I would love the press to 12 say now: "Let's bring the stronger sanction into effect 13 right now." If the Daily Mail were to write an 14 editorial next week saying, "All this outrageous 15 activity going on, we need a tougher approach", 16 I suspect the government would move within about three 17 weeks. And it would be wonderful to have the press -- 18 if we hadn't mentioned the press in our reports, we 19 might have achieved our objective rather sooner. 20 Q. Yes, but -- 21 A. That may have been a big mistake on our part, to have 22 included the press. If we had just focused on all the 23 other activity and said that people are being damaged by 24 this activity, I suspect we would have had our law 25 passed in 2008 without any difficulty and it would be 113 1 wonderful if your clients would support such a campaign 2 right now. 3 Q. Well, I'm sure they hear what you say. The fact of the 4 matter is you've already, I think, agreed that there can 5 be a principled approach on both sides of the 6 argument -- 7 A. Yes. 8 Q. -- in relation to imprisoning journalists for preaches 9 of data protection. 10 The fact of the matter I want to focus on, please, 11 is this: what actually happened after the publication of 12 reports. I represent, as you know, 13 Associated Newspapers. You do know, don't you, that 14 from 2007 Mr Dacre banned the use of private 15 investigators by anybody working for 16 Associated Newspapers? 17 A. I don't know the exact dates, but when I met him in 18 2008, he told me he had taken quite a few steps in his 19 own group and he understood elsewhere and that sort of 20 training, changing contracts for editors and journalist 21 he is, and so he was giving me the aggression then that 22 quite serious steps had been taken to stop this. 23 I can't recall being told specifically a ban on 24 investigators, but I think that's come up in the 25 documentation. 114 1 Q. One other thing which you might hope to see, I suppose, 2 in an organisation, is to introduce into new contracts 3 of employment a provision that the employee cannot 4 breach or must not breach the Data Protection Act, as 5 one way of enforcing it? 6 A. Yeah. 7 Q. And to send letters to existing staff notifying them of 8 the importance of adhering to the Data Protection Act 9 and requiring them to sign it to confirm their 10 understanding of the letter. Those are the kind of 11 steps you'd expect to see; is that right? 12 A. Yes. I mean that's all very welcome news. 13 Q. Did you know that those were steps that were taken by 14 Associated Newspapers? 15 A. Well, I mentioned the meeting I had with him after the 16 battle had finished, as it were, in June 2008, and he 17 shared that sort of approach with me, and his speech at 18 the end of 2008 at Bristol said the same sort of thing 19 and I really did genuinely think there they are cleaning 20 up their act. 21 Q. Yes, he said to the Society of Editors that the industry 22 had been warned. 23 A. Yes. It had taken quite a long time, it had been a bit 24 begrudging and a battle, but I did feel at the end of 25 the day we had been vindicated in our approach. 115 1 Q. Now, I heard what you said obviously in relation to the 2 Press Complaints Commission, but the fact of the matter 3 is that in 2007, it changed its code of practice to 4 include a provision requiring, as a rule of professional 5 conduct, compliance with personal data protection? 6 A. Well, I think the amendment was more that digital 7 information was included in the definition of stuff 8 which should not be accessed by subterfuge, and 9 I welcome that and there is a letter on record welcoming 10 that. 11 I still felt it was rather buried away. It wasn't 12 quite highlighted in the way I would like it to have 13 been, but I do accept that the code did finally include 14 something explicitly addressing this issue. 15 Q. Of course, Operation Motorman and Mr Whittamore's 16 activities and the information he was gathering between 17 the years 2000 and 2003 are almost ten years ago. But 18 would you agree with this: that the fact of the matter 19 is that since the publication of your report in 2006, 20 this is a story of the press generally responding very 21 well to your approaches for them to change attitudes and 22 practices? 23 A. Well, I don't want to put out a hostage to fortune 24 there. I'm not not engaged in these matters directly 25 now but I've noted and shared with you what the current 116 1 Commissioner has said. I hope that is the case. I hope 2 it lasts and becomes permanent. But we've had 3 last-chance saloons before and I can't be totally 4 confident it's going to prevail indefinitely. 5 Q. I'm not asking you to look forward. I am asking you to 6 look back. 7 A. But -- 8 Q. Whilst you were Commissioner from 2006 onwards after the 9 publication of your reports, what I said would be true, 10 wouldn't it? 11 A. Certainly by the time I retired in 2009, my impression 12 was that this was being taken a great deal more 13 seriously across all the press, and I welcome that and 14 the sort of steps you've mentioned I was being told were 15 put in place. I haven't checked, nor has my office, but 16 that is the encouraging signal. Whether that's 17 sufficient to eliminate the practice forever, I can't 18 tell you. 19 MR CAPLAN: Thank you very much. 20 A. Could I just raise this question, if I may, because 21 I was very concerned to see Mr Whittamore being used in 22 2007, two years after the trial. 23 LORD JUSTICE LEVESON: Well, that's a matter which we may 24 look at. 25 A. I raised it my statement. That's why -- 117 1 LORD JUSTICE LEVESON: You raised it. Mr Caplan will deal 2 with it to such extent as he feels is right. 3 A. Sorry. 4 LORD JUSTICE LEVESON: But I'm looking at a much broader 5 picture, as I'm sure you appreciate. 6 Thank you very much. Thank you, Mr Thomas, that's 7 a very long ordeal -- 8 A. Sir, there was one matter I was told I would have a 9 chance to -- I understood I had a chance to share with 10 you? 11 LORD JUSTICE LEVESON: What's that? 12 A. I was very, very concerned indeed at the reporting of 13 Monday's hearing in the Independent newspaper on Tuesday 14 of this week. It came very close indeed to accusing me 15 of misleading Parliament. It quoted the legal advice 16 which was revealed here on Monday, which was the 2003 17 advice, which said there may have been a case against 18 journalists, and the article in the Independent on 19 Tuesday said that this contradicted what I had told 20 Parliament. 21 When I went to Parliament, I was relying upon the 22 2005 advice, which has come out today, and I did want to 23 place on record my very strong concern indeed at the 24 misreporting of my position. I may have to pursue this 25 further, but I did alert the journalist yesterday that 118 1 I would be addressing this matter today, and I cannot 2 tell you how important it is to me that out of this 3 Inquiry, I have been accused of misleading Parliament, 4 a very serious and grave matter. I deny that entirely. 5 LORD JUSTICE LEVESON: Yes. You will appreciate, I think, 6 that I'm not entitled to enquire -- 7 A. I'm not asking any more at all. 8 LORD JUSTICE LEVESON: Thank you very much. Thank you. 9 Right, I don't think we'll be very long. Mr Jay, 10 Monday? 11 MR JAY: Monday, yes, two matters. The first witness is 12 Mr Mazher Mahmood. The proposal which we have made and 13 which we think is appropriate in relation to his 14 evidence is that there should be no filming of it. It 15 follows that there will be no transmission onto the 16 simultaneous web feed or to the marquee. But there's no 17 reason we see why his evidence cannot be audio streamed. 18 However, the public and press should be excluded from 19 the Inquiry room whilst he gives his evidence. 20 We think Mr Mahmood may be asking for somewhat more, 21 but the protections which we have just proposed we 22 believe are entirely sufficient. 23 LORD JUSTICE LEVESON: Yes. Do you know about this, Mr 24 Rhod -- 25 SPEAKER: I know about this. 119 1 LORD JUSTICE LEVESON: Yes? 2 SPEAKER: And the arrangements have been agreed between the 3 Inquiry team and ourselves. 4 LORD JUSTICE LEVESON: So you are content with what Mr Jay 5 just said? 6 SPEAKER: Yes, we don't want any filming and we don't want 7 any members of the public or press. We are content for 8 the core participants and lawyers to be here, as in 9 HJK's case. 10 LORD JUSTICE LEVESON: Yes, but it will also be audio. 11 SPEAKER: Yes, we're content. 12 LORD JUSTICE LEVESON: Thank you very much indeed. 13 MR JAY: Sir, there's one other point. Would you be 14 prepared to sit at 9.30 to deal with possible issues 15 which will pertain to the following day's evidence? 16 I will be prepared to sit at 9.30. It's just as well 17 it's not tomorrow, having sat a fair day today. 18 Thank you very much. I hope -- 19 MR GARNHAM: Can I delay you 30 seconds? 20 LORD JUSTICE LEVESON: That's all right. 21 MR GARNHAM: I want to draw your attention to the fact and 22 to ensure you have had sight of some written submissions 23 we have put in in relation to the evidence next week. I 24 also want to refer to them so that they're on the 25 record, so the fact that the submissions have been put 120 1 to you by the MPS and the CPS is recorded on the 2 transcript. I don't want to develop them. They're 3 there to be read. 4 LORD JUSTICE LEVESON: Thank you very much indeed. 5 Right. Monday. Thank you. 6 (4.50 pm) 7 (The hearing adjourned until 9.30 am 8 on Monday, 12 December 2011) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 121 http://www.levesoninquiry.org.uk/evidence/?day=2011-12-09
http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of-Morning-Hearing-8-December-2011.txt 1 8 December 2011 2 (10.00 am) 3 MR BARR: Good morning, sir. We're going to be calling 4 evidence today from seven learned academic witnesses. 5 We're going to be adopting a different format today from 6 that which we've followed thus far. I believe the term 7 is called hot-tubbing. 8 LORD JUSTICE LEVESON: That's in Australia. It doesn't have 9 to be called that here. 10 MR BARR: We may have to think of an English term for the 11 process, but what is going to happen in practice is four 12 of our academic witnesses are going to be called this 13 morning and three this afternoon. Both Ms Patry Hoskins 14 and myself are going to be questioning, and the idea is 15 better to extract the wisdom and learning of these 16 witnesses and to debate some of the issues which it is 17 hoped will assist you, sir, in your task. 18 LORD JUSTICE LEVESON: Yes. I've been provided with 19 a formidable body of material. I can't pretend I've 20 read every word. A lot of it deals with the courses 21 that are being run in educational establishments that 22 deal with ethics, which is interesting but not of course 23 at the centre of the issues that I'd like to discuss. 24 I'm pleased for the background, but I'm sure you'll 25 appreciate that having got what's happening on the 1 1 ground, for the next generation of journalists what 2 I need to know is how it then works out and what I can 3 do about the problems that I'm required to address. 4 MR BARR: Indeed, sir. There's no doubting the industry 5 that's been put into the statements and exhibits which 6 have been produced by the witnesses. The statements 7 are, of course, going to be taken as read. There may be 8 a few questions at the start to paint the landscape of 9 the courses, but we intend to spend most of the sessions 10 dealing with the nub of the issues that confront the 11 Inquiry. 12 LORD JUSTICE LEVESON: Thank you very much indeed. 13 MR BARR: Thank you, sir. Might I now introduce the 14 witnesses that we are going to be hearing from this 15 morning. They're sitting in alphabetical order, to 16 assist those who do not know them well. 17 LORD JUSTICE LEVESON: I think I do, because I've certainly 18 heard from at least three of them before, but do so. 19 MR BARR: It's Professor Steven Barnett on the left, from 20 the University of Westminster, Professor George Brock 21 from City University, Professor Brian Cathcart from 22 Kingston University and Angela Phillips from Goldsmiths 23 University of London, sir. 24 LORD JUSTICE LEVESON: Thank you. 25 MR BARR: If I could start by asking Professor Barnett, 2 1 could you give the Inquiry your full name, please? 2 PROFESSOR BARNETT: My full name is Steven Julius Barnett. 3 MR BARR: Could you confirm your place of work? 4 A. University of Westminster, 309 Regent Street, London. 5 LORD JUSTICE LEVESON: Just before we go on, I'm open to 6 suggestion on this, but I'm reminded that none of the 7 witnesses have taken the oath. It may be that it's not 8 appropriate, but I just want to make sure that we 9 clarify the basis upon which we're proceeding. 10 MR BARR: Sir, I'm in your hands. I think it might be 11 better for formality that the evidence is given on oath. 12 I was certainly proposing to adduce the witness 13 statements so that they can be confirmed and posted on 14 the Internet for all to read. 15 LORD JUSTICE LEVESON: Yes. Do any of you have any 16 objection to that? No? Right, let's do that. 17 PROFESSOR STEVEN BARNETT (affirmed) 18 PROFESSOR GEORGE BROCK (sworn) 19 PROFESSOR BRIAN CATHCART (affirmed) 20 PROFESSOR ANGELA PHILLIPS (affirmed) 21 Questions from MR BARR 22 MR BARR: If we could resume, Professor Barnett, is it right 23 that you are the Professor of Communications at the 24 University of Westminster? 25 PROFESSOR BARNETT: That's right. 3 1 MR BARR: And you've been teaching in the University's 2 School of Media, Art and Design for 18 years? 3 PROFESSOR BARNETT: That's right. 4 MR BARR: And you've had a personal chair since 2000? 5 PROFESSOR BARNETT: That's correct. 6 MR BARR: You tell us that the university's media department 7 is the oldest in the country? 8 PROFESSOR BARNETT: That's right. 9 MR BARR: And you're also an external examiner for the 10 journalism course at the University of Kent? 11 PROFESSOR BARNETT: That's right. 12 MR BARR: Over the last 25 years you've directed over 30 13 research projects? 14 PROFESSOR BARNETT: Yes. 15 MR BARR: And you are currently acting as specialist adviser 16 to the House of Lords Select Committee on Communications 17 for its inquiry into investigative journalism? 18 PROFESSOR BARNETT: That's right. 19 MR BARR: You've been a member of the National Union of 20 Journalists for nearly 30 years? You were a columnist 21 on the Observer? 22 PROFESSOR BARNETT: That's right. 23 MR BARR: And you have been an editorial board member of the 24 British Journalism Review since its inception in 1990? 25 PROFESSOR BARNETT: That's right. 4 1 MR BARR: And you have published a number of books and 2 articles on journalism? 3 PROFESSOR BARNETT: That's right. 4 MR BARR: And media policy. 5 Professor Brock, if I could ask you -- 6 LORD JUSTICE LEVESON: Just before we go on, you've not yet 7 introduced his statement, so we'll do it when his 8 statement comes to be considered, because of course 9 Professor Barnett spoke at one of the seminars. Yes. 10 MR BARR: Professor Brock, could you confirm your full name, 11 please? 12 PROFESSOR BROCK: George Laurence Brock. 13 MR BARR: And you are Professor and Head of Journalism at 14 City University London? 15 PROFESSOR BROCK: That's correct. 16 MR BARR: You joined the university in 2009? 17 PROFESSOR BROCK: Yes. 18 MR BARR: Before that, you had worked since 1981 at the 19 Times in various posts including Comment Editor, Foreign 20 Editor, Brussels Bureau Chief, Managing Editor and 21 Saturday Editor? 22 PROFESSOR BROCK: That's correct. 23 MR BARR: Before that, you were a reporter on the Yorkshire 24 Evening Press in York? 25 PROFESSOR BROCK: Yes. 5 1 MR BARR: And subsequently you spent five years as 2 a reporter for the Observer? 3 PROFESSOR BROCK: That's right. 4 MR BARR: You are an ex-president and current board member 5 of the World Editors Forum? 6 PROFESSOR BROCK: Yes. 7 MR BARR: And you're on the board of the International Press 8 Institute and chair its British Committee? 9 PROFESSOR BROCK: That's right. 10 MR BARR: You also write a blog on journalism, the link for 11 which is set out in your witness statement, and you 12 write in the Times, the British Journalism Review and 13 the Times Literary Supplement? 14 PROFESSOR BROCK: Yes. 15 MR BARR: I turn now to Professor Cathcart. Could you give 16 us your full name, please? 17 PROFESSOR CATHCART: Brian John Cathcart. 18 MR BARR: And you were Professor of Journalism at Kingston 19 University, is that right? 20 PROFESSOR CATHCART: I still am. 21 MR BARR: You still are, and have been since 2005? 22 PROFESSOR CATHCART: Yes. 23 MR BARR: Before that, you were a senior lecturer for two 24 years? 25 PROFESSOR CATHCART: Yes. 6 1 MR BARR: Your career in journalism began with a graduate 2 traineeship at Reuters? 3 PROFESSOR CATHCART: Correct. 4 MR BARR: You remained at Reuters as a correspondent between 5 1978 and 1986? 6 PROFESSOR CATHCART: That's correct. 7 MR BARR: You then joined the launch team of the Independent 8 newspaper as a foreign news sub-editor? 9 PROFESSOR CATHCART: I did. 10 MR BARR: And then you were the launch foreign editor of the 11 Independent on Sunday in 1990 and you later became the 12 paper's deputy editor? 13 PROFESSOR CATHCART: That's right. 14 MR BARR: You left in 1997 to work as a freelance and to 15 write books? 16 PROFESSOR CATHCART: Correct. 17 MR BARR: They include "Were You Still Up for Portillo?" in 18 1997, "The Case of Stephen Lawrence, "Jill Dando: Her 19 Life and Death" and "The Fly in the Cathedral". 20 From 2003 to 2007, you were the assistant editor and 21 also media columnist of the New Statesman? 22 PROFESSOR CATHCART: Correct. 23 MR BARR: And in 2010, you were the specialist adviser to 24 the House of Commons Select Committee on Culture, Media 25 and Sport in the inquiry which produced the report 7 1 "Press standards, libel and privacy". 2 PROFESSOR CATHCART: That's correct. 3 MR BARR: At Kingston you are Director of Research in the 4 department and you've led two research projects in 5 association with the Natural History Museum? 6 PROFESSOR CATHCART: Correct. 7 MR BARR: Ms Phillips, if I could ask you, please, to 8 confirm your full name to the Inquiry? 9 MS PHILLIPS: My name is Angela Phillips. 10 MR BARR: And you currently work at Goldsmiths College at 11 London? 12 MS PHILLIPS: That's right. 13 MR BARR: You run all the print journalism programmes? 14 MS PHILLIPS: Yes. 15 MR BARR: The journalism MA and you co-founded the 16 innovative MA in digital journalism with the college's 17 department of computing? 18 MS PHILLIPS: That's right. 19 MR BARR: You've been a journalist for over 30 years, 20 starting in the alternative press in the 1970s and 21 moving on to work for national newspapers, magazines, 22 television and radio, both the BBC and independents? 23 MS PHILLIPS: That's right. 24 MR BARR: You trained initially as a photographer and worked 25 for several years as a photo journalist before moving 8 1 mainly into print. You were awarded an MA in media and 2 cultural studies in 2003 and you currently freelance for 3 the Guardian and you contribute to Comment is Free on 4 the Guardian blog site? 5 MS PHILLIPS: Yes. 6 MR BARR: And you're a participant in Goldsmiths' Leverhulme 7 Media Research Centre? 8 MS PHILLIPS: That's right. 9 MR BARR: Thank you. Can I now turn to ask you formally 10 about your witness statements? Could I ask you first of 11 all, Professor Barnett, are the contents of your witness 12 statement true to the best of your knowledge and belief? 13 PROFESSOR BARNETT: Yes, they are. 14 MR BARR: And did you attend the seminar earlier this year? 15 PROFESSOR BARNETT: Yes, I spoke at the third seminar. 16 MR BARR: Those comments at the time were made on the basis 17 that they would not form formal evidence. Would you 18 like them to be treated as formal evidence for 19 Lord Justice Leveson's purposes? 20 PROFESSOR BARNETT: Yes, please, I'm happy -- 21 LORD JUSTICE LEVESON: Is there anything in them that you've 22 now -- we'll doubtless come this, but I'd be very keen 23 to know if there is anything in it that you've now 24 changed your mind about or want to expand upon during 25 the course of the day? 9 1 PROFESSOR BARNETT: I'm very happy for that to be included 2 as spoken at the time. 3 LORD JUSTICE LEVESON: Thank you very much. 4 MR BARR: Professor Brock, the same questions. Is your 5 witness statement true and correct to the best of your 6 knowledge and belief? 7 PROFESSOR BROCK: Yes, it is. 8 MR BARR: And did you speak at the seminar? 9 PROFESSOR BROCK: Yes, I spoke at the third seminar. 10 MR BARR: Are you content for those contributions to the 11 seminar to be received formally in evidence? 12 PROFESSOR BROCK: Yes, I think that's fine. There's a good 13 deal more to say on the subject but -- 14 LORD JUSTICE LEVESON: I'm sure there is -- 15 PROFESSOR BROCK: -- it stands fine as it is. 16 LORD JUSTICE LEVESON: -- and I'm very keen for you all to 17 have the opportunity of saying what is to be said on the 18 subject. Let me make it abundantly clear, this has been 19 your -- not to say your life's work, but within your DNA 20 for a very long time and it isn't part of my DNA as yet, 21 but it is becoming so, and therefore I'm very keen for 22 your help, and although we'll formally discuss various 23 of the issues this morning and during the course of the 24 day, I wouldn't want you to think that your contribution 25 should then be considered at an end. I'd be very keen 10 1 to hear your reflected views as we get more into the 2 evidence and hear more so that I am better informed 3 about what can be done for the future. 4 It's critical, and I've said this publicly before 5 and I don't mind repeating it -- I know 6 Professor Brock's getting this, but it's really a common 7 comment -- to ensure that whatever system, if there is 8 to be a change, is understandable, is acceptable to all 9 and will work. You may have observed that I said during 10 the course of the evidence that I was absolutely opposed 11 to producing something that was only of interest to you 12 as professors of journalism in years to come as an 13 interesting sideline which produced a document that 14 simply sat on a shelf. Not that I'm trying to deprive 15 you of work to do in the future, but I am very keen that 16 this enormous expense produces something that is 17 sensible, worthwhile and workable. 18 Right, sorry to interrupt you, Mr Barr. 19 MR BARR: Not at all. 20 Professor Cathcart, are the contents of your witness 21 statement true and correct to the best of your knowledge 22 and belief? 23 PROFESSOR CATHCART: Yes. 24 MR BARR: And are you content for your contributions to the 25 seminar to be received formally in evidence? 11 1 PROFESSOR CATHCART: Yes. 2 MR BARR: Ms Phillips, I understand that you were one of 3 a number of contributors to the Goldsmiths witness 4 statement, but is it true to the best of your knowledge 5 and belief? 6 MS PHILLIPS: Yes, it is, and I just wanted to say that 7 Professor Curren had originally been asked to give 8 evidence but we worked together in the Leverhulme 9 research group and it was felt that as I teach practical 10 journalism, that I might be of more use to you today, so 11 that's why Professor Curren isn't here. 12 MR BARR: We're delighted to get the collective benefit of 13 Goldsmiths experience today. Are you able to confirm 14 that the Goldsmiths contribution, if I put it that way, 15 to the seminar can be received formally in evidence? 16 MS PHILLIPS: Absolutely. 17 MR BARR: Before we leap into the meaty issues, can I start 18 with a little bit of background about the role of 19 university training for journalists? We sense from the 20 witness statements that there has been a trend, perhaps 21 over the last two decades, where university training has 22 grown considerably for journalists such that it is now 23 the most frequently delivered training for journalists 24 and has replaced in-house training as the mainstream 25 entry into the profession. Is that right? 12 1 MS PHILLIPS: It's slightly more conflicted than that 2 because quite a lot of it's postgraduate, quite unlike, 3 for example, in America. Although there are 4 undergraduate journalism programmes, we also have, 5 certainly City and Goldsmiths, all of us, I think, have 6 important postgraduate journalism programmes, so that 7 quite a large number -- the last research I saw said 8 that something like 50 per cent of people going into 9 journalism in I think it was 2002 already had 10 a postgraduate qualification of some kind, so I think 11 it's quite important to recognise that there are two 12 different levels. There is undergraduate journalism and 13 there's quite a lot of postgraduate journalism and those 14 journalists will have had a different kind of first 15 degree. 16 PROFESSOR BROCK: But nevertheless, if I can just add, it is 17 broadly absolutely right to say that because there is 18 less in-house training going on, more of it has happened 19 in universities. The traditional way in which, for 20 example, national papers were staffed was by people who 21 graduated in the informal sense of the word out of 22 regional papers, while somewhere around the 1990s that 23 flow just dwindled to a trickle, and they weren't being 24 trained and they weren't emerging in such numbers and 25 they weren't being so well trained, and that boosted 13 1 applications for university courses, and indeed the 2 creation of university courses too. 3 MR BARR: And if -- 4 LORD JUSTICE LEVESON: Hang on. You have to speak. If you 5 want to speak, just crack on. 6 PROFESSOR BARNETT: I just wanted to add, to add to what 7 George was saying, I think the broad trend is 8 undoubtedly away from training on the job, on the 9 ground, towards university courses, but the point that 10 I would like to emphasise, as far as I can tell this is 11 happening on an essentially piecemeal basis. There is 12 no coordination of the way in which this is happening. 13 It is a process where on the one hand you have in 14 particular local newspapers closing down their schemes 15 because they can't afford to run them, or even the 16 national schemes being reduced in size, and at the same 17 time, as George said, universities picking up the slack, 18 but not in any kind of coherent or organised way. It's 19 simply responding to that kind of demand, that there are 20 people, students, who want to study the media and go 21 into journalism, but are not finding the routes in that 22 were traditionally there. 23 MR BARR: If no one else want to contribute on that opening 24 question, could I move on to pick up from that and ask: 25 is there any difficulty with the supply of budding 14 1 journalists of sufficient calibre or not? 2 PROFESSOR BARNETT: My answer would be no. I think there is 3 actually almost an abundance of people, which is very 4 gratifying, who are keen, eager, quite idealistic about 5 their view of what journalism can do, what they can 6 achieve as journalists, the role of journalism in 7 a democratic society. So I don't know if my colleagues 8 would agree or not, but my sense of it is that we 9 certainly have no shortage of good applicants who are 10 keen to study media and become journalists. 11 PROFESSOR BROCK: We certainly have no shortage of 12 applicants. In terms of quantity and quality, I don't 13 think there's a problem if you're talking about the 14 national press and what -- in the broad terms, the BBC, 15 Sky, employers like that who tend to broadcast across. 16 If you're talking about the regional newspapers, I think 17 it's much harder for them to find trainees. The 18 relative pay has gone down very much more sharply. They 19 don't train people. There isn't a career progression to 20 higher up in the business, if I can put it that way, and 21 therefore the quantity and quality of people going into 22 the regional press has changed a lot, and not for the 23 better, broadly speaking. 24 PROFESSOR CATHCART: I would think there's something to add 25 about the regional press there which is they're actually 15 1 shrinking their staff numbers, not increasing them. 2 They're not big recruiters these days. 3 In response to your central question, there is no 4 shortage of very, very bright young people wanting to be 5 journalists. 6 MS PHILLIPS: I would absolutely agree with that. We get 7 amazing students at Goldsmiths and we don't tend to -- 8 they haven't ever tended to go to the local newspapers, 9 or to local or regionals, they've tended to go to 10 nationals and magazines, which is probably fortunate 11 given what's happening at the local level at the moment. 12 LORD JUSTICE LEVESON: Before you go on, can I go back to 13 the question you answered a moment ago. Is there a call 14 for a requirement for a common standard across the 15 universities? Or is the diversity of the courses you 16 offer and therefore perhaps the varying standards -- and 17 I'm not going to go into the debate -- of the training 18 that your undergraduates or your graduates receive of 19 value or not a good idea? Is my question sufficiently 20 clear? 21 PROFESSOR CATHCART: I would say that one of the virtues, as 22 we would see it, of the system is that it's quite 23 competitive. You want students to come to your 24 university and like the look of your course. You make 25 it as -- in our case, as practice-oriented as in a sense 16 1 you can, within the confines of a university. You want 2 to give them a really good preparation, and you promote 3 that and we compete. That's the university model, as it 4 were. 5 MS PHILLIPS: And good students do a lot of research before 6 they decide which courses they're going to apply for, 7 and they're very sussed. They do know the differences 8 between them. And when they come to interview -- and 9 I don't know about the others, but we interview every 10 single student coming into our postgraduate courses -- 11 they're pretty clear about why they're making the 12 decisions they're making about which courses they want 13 to go to. 14 LORD JUSTICE LEVESON: So the diversity is positive and 15 a good thing? 16 MS PHILLIPS: I think absolutely, yes. 17 PROFESSOR BARNETT: Just to add to that, we're very 18 old-fashioned in that we interview every student coming 19 onto the undergraduate course -- there aren't very many 20 universities left that still do that -- and have exactly 21 the same experience, that they've done their research, 22 which is much easier now on the Internet, they 23 understand the variety of courses available. In our 24 case, it's 50 per cent practice, 50 per cent theory, 25 which I think is the same as Goldsmiths. 17 1 MS PHILLIPS: Yes. 2 PROFESSOR BARNETT: And they appreciate that they're going 3 to have a slightly more theoretical approach to the 4 subject at Westminster or at Goldsmiths than perhaps at 5 other universities which are more vocational. That's 6 part of the mix. 7 LORD JUSTICE LEVESON: And that's good? 8 PROFESSOR BARNETT: Absolutely. 9 PROFESSOR BROCK: There is a very large variety, or rather 10 I think it would be better to say there is a spectrum 11 across which courses run, with theoretical at one end 12 and practical at the other, and different schools teach 13 in slightly different ways. Their mixture of the two 14 will be different. I certainly haven't ever heard 15 a call for consistency of -- 16 LORD JUSTICE LEVESON: No, I'm just asking the question. 17 PROFESSOR BROCK: But it was your first question and 18 I haven't heard it. 19 There is a separate issue, which I think we're 20 likely to get asked about, about the accrediting 21 organisations, but I won't get into that right now. 22 LORD JUSTICE LEVESON: That's what it leads up to. 23 MS PHILLIPS: The industry is so different. There are some 24 courses that are far more populist in their approach, 25 they are both more vocational and more populist. And 18 1 our postgraduate and undergraduate students are quite 2 different in the kind of people they are and what they 3 are interested in. So at postgraduate level we tend to 4 get students who are either hoping to get into the 5 nationals or into business magazines or the sort of 6 higher end of the magazine sector and they know that's 7 the kind of students who come to Goldsmiths, so they are 8 selecting a course that's going to be a bit more -- 9 going to have a bit more of an academic -- be more 10 critical than maybe another kind of course. 11 LORD JUSTICE LEVESON: As Professor Brock has identified, my 12 question leads on to the whole question of 13 accreditation, which we'll come onto at some stage. 14 Just while we are talking about the subject. Right, 15 sorry. 16 MR BARR: Indeed, accreditation was the next issue I was 17 going to introduce. We've read in the statements that 18 there are a number of accreditation bodies and some of 19 you have courses accredited to more than one body, other 20 courses accredited to one body and the observation is 21 made that there is no over-arching organisation to the 22 delivery of content of academic training. 23 So could I ask, and I'll start with you, 24 Professor Barnett, simply because you're on the left and 25 perhaps we can move across, is there any difficulty with 19 1 accreditation? Would it be better to have something 2 more standardised or is the system working now? 3 PROFESSOR BARNETT: Is the system working? I suppose it 4 depends on what you want as your ultimate objective. 5 I suppose we'll come -- I made it clear in my evidence 6 that I actually think it's what happens once you get 7 into the newsroom that is the issue, rather than the 8 training, but -- and I think that's a separate problem. 9 MR BARR: We'll come to that. 10 PROFESSOR BARNETT: In terms of the training itself, because 11 I teach on the theory side, I asked my practice 12 colleagues about this, they are fairly clear that the 13 NCTJ, the National Council for the Training of 14 Journalists, is regarded as slightly inflexible and is 15 not necessarily an appropriate accreditation to have. 16 It doesn't actually help. It produces a sort of 17 a narrowness in course delivery which we didn't want. 18 Whereas the broadcast equivalent, the BCTJ, is rather 19 more flexible and we are accredited to the BCTJ. 20 So I think it depends essentially at a local level 21 for each of us what we want to achieve and to what 22 extent it fits our own kind of course aims and 23 diversity. It comes back to the point, I think, about 24 diversity and for some universities it fits, for some 25 courses it fits, for others it doesn't. 20 1 MR BARR: Before I throw that question open to our other 2 witnesses, perhaps I could invite you to focus on 3 ethical training and whether there ought to be any 4 over-arching accreditation of ethical training or 5 whether it's best split as it is at the moment. Any 6 thoughts on that? 7 PROFESSOR BROCK: It might in theory be better to have an 8 over-arching body. I think in practice journalism in so 9 many of its aspects is changing so rapidly that that 10 would really be quite difficult to do. The situation 11 that Steve was describing just now, we're in the same 12 position at City. We are not accredited to the NCTJ and 13 for broadly the same reasons as Steve's colleagues 14 decided, so I won't labour the point, it's too rigid, 15 it's too difficult for us to operate, and we did not 16 think that it would improve our courses by doing it. 17 And that continues to be the case and we keep that under 18 review but we are in the broadcasting one and we're also 19 in the Periodicals Training Council. 20 I think that however journalism is changing so 21 rapidly that an over-arching or standard on 22 organisation, even if you were just thinking about 23 ethical training, would be extremely difficult to do. 24 And given the state of training as I see it, I think 25 that competitive plurality, if I can put it that way, 21 1 seems to be working effectively. And therefore I don't 2 think that -- it would be a disproportionate effort to 3 try and produce an over-arching organisation. 4 PROFESSOR CATHCART: Yes, I agree with George about the 5 over-arching quality. I think we at Kingston have an MA 6 that is accredited to the NCTJ and we did that because 7 we were setting up a -- our focus is on print or on 8 written journalism, and we don't teach broadcast at all 9 and I think our feeling was that this was the 10 appropriate way to teach journalists, teach young 11 journalists to get them jobs in the local and regional 12 press particularly, which tend to require NCTJ 13 qualification. So we married the two, the degree and 14 the NCTJ, now the diploma. 15 It is a difficult -- it's a difficult MA, it's a 16 very demanding MA. When we recruit, we interview them 17 all, we warn them that piling the NCTJ qualification 18 work on top of the university -- the demands of a 19 university MA degree is very, very demanding. So, you 20 know, these are students who can't, for example, or find 21 it extremely difficult to hold down, you know, part-time 22 jobs outside their degree as students often have to 23 these days. It's tricky. 24 But I have -- I mean, I have been critical, I was 25 critical at the seminar of the NCTJ in the field of 22 1 ethics because it is effectively a corner of the 2 teaching, of the requirement of the NCTJ diploma, 3 a small corner of it that addresses ethical questions. 4 I'm sure that every teacher who delivers an NCTJ course 5 everywhere in the country teaches it in an ethical 6 manner, but the council itself does not place the stress 7 on ethics that I certainly would like to see and I think 8 that's a pity, but it's also a reflection of the NCTJ 9 being the servant of the industry. 10 MS PHILLIPS: Absolutely. 11 PROFESSOR CATHCART: And the industry's priorities not being 12 highly ethical, shall we say. They have not passed down 13 from on high a demand to the NCTJ to deliver high 14 standards of ethics teaching. 15 MS PHILLIPS: I looked at the NCTJ when I started the 16 Goldsmiths MA in the mid-1990s and I decided not to 17 apply for NCTJ accreditation for much of the reasons 18 that we've heard so far. I felt it was far too narrow 19 and it positively prevented a postgraduate course from 20 looking at the industry or in any way interrogating the 21 job of a journalist. The idea is because basically the 22 NCTJ is run by the industry, it seeks simply to imprint 23 industry ideas on teaching. 24 It seems to me that at postgraduate level, young 25 people should be asked to think about what journalism is 23 1 and what their role as a journalist would be and very 2 particularly to think about the power that journalists 3 have once they are actually working, so that we at 4 Goldsmiths, we really think that theory and practice 5 need to work together and that ethics needs to be part 6 of what you do from the moment students come in the door 7 because they need to be constantly challenged with 8 ethical questions. 9 If you put the straitjacket of an NCTJ, very kind of 10 nuts and bolts, it's very tick boxy. If you put that 11 straitjacket on top of a postgraduate course, I felt you 12 would actually be stopping students from thinking about 13 what they were doing and we like to think that what we 14 do at Goldsmiths is encourage people to think. It's 15 very importantly part of what we do. 16 LORD JUSTICE LEVESON: Is a fair summary of that that you're 17 not focusing on what was done yesterday as necessarily 18 correct; you're actually requiring people to think about 19 behind that question and ask: what should we be doing 20 tomorrow? 21 MS PHILLIPS: You couldn't have put it better. That's what 22 I say -- as my students leave to go into the world, 23 I basically say at the moment everything's really 24 difficult and really hard and jobs are scarce, but you 25 are going to be the journalists of tomorrow, and what 24 1 we've taught you will stand you in good stead for the 2 future, not the past. 3 That was the other problem I always had with the 4 NCTJ, that they were teaching too old regulations. We 5 started with a multi-platform postgraduate course in the 6 mid-1990s. The NCTJ didn't have a course that would 7 have fitted that. We would have had to drop most of it. 8 But we are Periodicals Training Council accredited 9 because they have a completely different approach. They 10 come along and say, "Let's see what you're doing and 11 whether it's good enough for us", and that's a much 12 better way of accrediting courses because it allows many 13 flowers to bloom. It means that we can all be 14 different. The fact that we do have somebody coming 15 along and saying, "You're different and we like it", 16 rather than, "You're different and you're not doing what 17 we tell you to do". 18 PROFESSOR BARNETT: In fact, accreditation on that basis 19 would be quite easy. 20 MS PHILLIPS: And much cheaper. 21 PROFESSOR BARNETT: All accrediting bodies would need to do 22 would be to ask for the course content details and see 23 to what extent ethics form an important component of the 24 various modules that are being taught. 25 In our first year course, the first three lectures 25 1 that first year students have are all about ethics and 2 regulation. It is an integral part of the introduction 3 to journalism. But there is no ethics module. It is 4 like a stick of rock, it goes through virtually every 5 one of the modules that is being taught at the 6 discretion of the individual lecturer. But it would be 7 quite easy to actually accredit on that basis by seeing 8 to what extent those components are contained within 9 existing courses. 10 PROFESSOR BROCK: Can I just stress that we are adapting 11 courses all the time for the changes in the business. 12 We've just introduced a virtually compulsory module in 13 our teaching which we've called entrepreneurial 14 journalism. This is not about ethics but what it does 15 is teach young journalists what it's going to be like if 16 they find themselves, say, in a small Internet start-up. 17 If they go and work in a small Internet start-up, that 18 may not be regulated by anyone, or it may be regulated 19 by someone. It will vary. And therefore you have to 20 have a basis of the ethics teaching which is independent 21 of the machinery that they may encounter, or the 22 circumstances they may encounter because they are -- 23 this is the point I'd really like to try and get 24 across -- changing very rapidly. 25 MS PHILLIPS: I would absolutely agree with that. 26 1 PROFESSOR CATHCART: I would think -- all of us, I'm sure, 2 would agree that what we're trying to produce is not 3 just journalists but reflective journalists, who think 4 about what they're doing, who ask the question: why do 5 I do this job? Is this really journalism? Is this the 6 right sort of journalism to be doing? Am I doing it in 7 appropriate ways? 8 MR BARR: If everybody has said what they'd like to say 9 about that topic, I'll move on. I'm going in a moment 10 to move to the question of how at an academic strange 11 you can possibly prepare a student for the realities on 12 the ground, but before we go to that theme, given your 13 somewhat lukewarm reaction to the accreditation schemes 14 that exist, could I ask you this practical question: do 15 any of you feel that there is insufficient emphasis on 16 ethical training at the academic stage? 17 PROFESSOR BARNETT: No. My short answer is no. Certainly 18 those courses that I'm involved with, those on which 19 I have been an external examiner, what I know of the 20 courses of my colleagues, I think it could be -- even if 21 we're being as self-critical as we possibly can, I would 22 find it quite difficult to identify courses where there 23 is insufficient emphasis on ethical training. That for 24 me is not the issue, I'm afraid. 25 PROFESSOR BROCK: I'd broadly endorse that. I haven't 27 1 inspected every single course that comes under these 2 headings, but the good ones that I know about, the 3 quantity of ethical teaching is not the issue. 4 MS PHILLIPS: I teach one of the ethics lectures, or 5 a couple of ethics lectures, and one of the thing 6 I think we're up against all the time is that we are 7 teaching students to be ethical and knowing that they're 8 going into an industry where they're going to be under 9 constant pressure, and we have to make them aware of 10 that as well. 11 So we do show, or I do show examples of newspapers 12 that have either sailed very close to the wind in terms 13 of the PCC regulations or indeed have completely ridden 14 right over the top, and we talk about why this happens 15 and we talk about it in the context of the kind of 16 extraordinary competitive pressures that the newspapers 17 are under and what happens to young journalists when 18 they go into the system. 19 I feel you can't really teach ethics without 20 teaching people about the commercial realities of 21 journalism in this country, and I think that -- I'm sure 22 we would all agree that actually young people come into 23 journalism through training as very ethical young 24 people. I think that's how they come to us and I think 25 that's -- certainly as far as I'm concerned, that's how 28 1 they leave us. 2 PROFESSOR CATHCART: If I could just add one thing. I think 3 it's worth drawing the contrast with the ancient time 4 when I entered journalism, when certainly I received no 5 explicit ethical training whatsoever. I went into -- as 6 it happened, I worked in Reuters, in a highly ethical 7 environment, as I started. I was fortunate in that 8 sense, but the training I was given at Reuters did not 9 include a single word about ethics. We have come a long 10 way. 11 MR BARR: If the position is that now your students are 12 leaving having been fully taught about ethics, it takes 13 us to the interesting question that was being introduced 14 there: to what extent can you, in fact, prepare somebody 15 for the moral hazards that they then go on to encounter 16 in very busy, very pressurised working environments? 17 Can you instill moral courage in your students? 18 PROFESSOR BARNETT: For me, that's the problem. I've been 19 very struck over the course of the last few weeks by 20 some of the evidence from people who have clearly had to 21 be extremely courageous to stand up and talk about what 22 the reality is at the coalface. Richard Peppiatt is an 23 obvious example. 24 MS PHILLIPS: Yes. 25 PROFESSOR BARNETT: I quoted in my evidence the editor of 29 1 the Press Gazette who wrote -- Dominic Ponsford -- who 2 quoted somebody from one of the red tops last year 3 talking about when you have your editor shouting at you 4 to get a story, you lose your morality. You don't 5 really see celebrities as being real people, you see 6 them as a product, as a story. 7 We saw the same thing in the book published last 8 year by Sharon Marshall which I've quoted as well. 9 She's talking about ten years of working in the red 10 tops. The pressures that you are under. And they are 11 told in no uncertain terms that if they don't do what 12 they are asked to do, there is no shortage of young, 13 willing recruits who are waiting to take up the very 14 valued and rare job that they have. 15 So I'm talking specifically now about life, if you 16 like, on the kinds of national tabloid newspapers where 17 a lot of these problems have occurred. I think it's 18 less stark and less problematic for the majority of 19 journalists who are working on local and regional 20 newspapers. I think there are different problems, which 21 very much emanate from the economic pressures that 22 they're under, and that's more to do with reliance on 23 public relations, what Nick Davies has called 24 "churnalism", having to turn the stories round very 25 quickly, but the kind of ethical problems, which is 30 1 what's driven this Inquiry in the first place, very much 2 concentrated on the national tabloids, I don't think is 3 something that you can actually teach someone to deal 4 with. 5 That is in the end a matter of your individual moral 6 courage as to whether you feel you can afford to put 7 your head above the parapet and say no. 8 PROFESSOR CATHCART: In the context of a workplace where it 9 is extremely hard to get a job in the first place. So 10 you have students who knock around doing several unpaid 11 internships. They will eventually get -- I think this 12 is an important factor -- they will eventually get 13 probably a short-term contract or some casual 14 employment, paid employment on a paper. When you're in 15 that vulnerable position and the editor says, "I want it 16 done this way", you're not just making a moral choice, 17 you're making a financial choice. 18 MS PHILLIPS: Yes, I mean I obviously talk to my own 19 students and I've also done some research in this field 20 talking to journalists. I don't know whether that's 21 going to come up later or whether you want me to talk 22 about it now. 23 LORD JUSTICE LEVESON: Keep going. Let's see how we get on. 24 MS PHILLIPS: As far as my own students are concerned, we 25 teach using a live website called the EastLondonLines 31 1 which is like a local paper and it runs all year, so 2 they are working very much in a real newsroom 3 environment and dealing on a kind of daily basis with 4 the fact that we now have quite a big audience so they 5 get comments and they know what it feels like, they know 6 that the people out there are real. I think that's one 7 of the most important things, that they're not writing 8 about people who are cardboard cut-outs, they're real 9 human beings and they will respond. 10 So we have an absolute, no questions asked, 11 everybody has a right of reply on EastLondonLines and 12 our students know that and they learn that, but I have 13 to say that only two students to my knowledge have ever 14 gone to work on one of the red tops from my course, 15 which might be something to do with the students who 16 arrive and where they go. 17 In terms of my research, though, I have 18 interviewed -- I did two research projects, one early 19 in -- sort of 2002 and another one in 2007 and 2008. 20 They were fairly small samples and I was interviewing 21 people right across the press. I wasn't specifically 22 interviewing them about ethics. In the first wave I was 23 looking at how ethnic minority journalists operated in 24 mainstream newsrooms and I wanted to see how they dealt 25 with stories that were quite often racist and how they 32 1 were able to deal with that. The second wave of 2 research was actually looking at how people were using 3 new technologies to do research. 4 The ethical questions came up almost unasked. In 5 the first set of interviews, some of the people were 6 under most extraordinary pressure because what seemed to 7 be happening was that young ethnic minority journalists, 8 often quite naively going into red top newsrooms, were 9 actually being asked to do the stories that dealt 10 directly with black and ethnic minority people, so that 11 they were -- partly because they would be more likely to 12 get an interview, and then they were finding that the 13 work that they were writing was being twisted and 14 changed, and they found it almost intolerable. 15 The interesting thing about it is that as I look at 16 the names of people on the newspapers, an awful lot of 17 them aren't working where they used to work. I mean one 18 in particular who I interviewed, talked -- he said at 19 the end the trouble was that he'd come in from a local 20 newspaper: 21 "I was doing shifts on a daily basis. It was up to 22 them to decide whether to renew my job the next day. So 23 if I lost my job I wouldn't be able to pay the rent or 24 anything like that, which probably isn't an excuse, but 25 there was still that thought there." 33 1 He, I'm quite glad to say, I've noticed is now 2 working for the Guardian, so he no longer has to deal 3 with that any more. And you find that quite a lot of 4 these young people are coming in, working under 5 extraordinary pressure and trying to find a way to get 6 on to the more ethical newspapers because they don't 7 want to do this stuff. But then a lot of them get 8 trapped because the red tops pay much more, in a lot of 9 situations, so they get trapped by the fact that they've 10 got themselves into a situation where they have quite 11 a good salary coming in and they kind of go with it. 12 There was one particular person who said, who was at 13 that time a news editor, who kept talking about how he 14 kept meaning to leave, he was going to leave. As far as 15 I know, he's still there. But a lot of people do try to 16 leave and a lot of the kind of things that -- the kind 17 of problems are at quite a low level. 18 Somebody else said, a young woman reporter was 19 saying: 20 "They want attractive people in the paper, they want 21 blondes, they want nice looking girls, the younger the 22 better. You know that's what they want, so that's what 23 you get because otherwise you'll either be in for 24 a shouting or you'll have to do it again." 25 I must add that when I interviewed these 34 1 journalists, they were paranoid about me suggesting what 2 newspaper they worked for because they were afraid that 3 somebody might work out who they were. They could not 4 speak publicly. 5 The second wave of research that I did, which was, 6 as I said, looking at Internet research -- incidentally 7 I didn't hear any instances of phone hacking, but I was 8 at that point talking mainly on the more upmarket press 9 because I was simply interested in how people were using 10 the Internet to do research, but again, while doing that 11 research, people were talking about the extraordinary 12 pressures they were under to simply repurpose, take 13 stories from elsewhere which they might not necessarily 14 even have checked, rewrite them, and you'd find people 15 had stories that were going out under their bylines but 16 they'd only written about three lines of. It had just 17 been cobbled together through the day from a whole lot 18 of different places. 19 So to suggest that they would have any -- they don't 20 feel they have any control over what eventually winds up 21 either on the page, or certainly this was happening 22 a lot on the Internet, that the Internet editions 23 were -- you take a bit from this paper and a bit from 24 that paper and you put it together and you make a couple 25 of phone calls, and the next time you look at it a whole 35 1 lot more had been added or it had been changed a lot. 2 The other thing I found that was that at that 3 particular time there was huge, huge commercial pressure 4 to go online first, so that all the newspapers were 5 moving towards the online first way of doing things, 6 which meant working much, much faster, but they were 7 also losing staff. 8 At this stage, and I think it's reasonable to say 9 that I was interviewing people in the Telegraph at this 10 point, an awful lot of the most senior journalists, the 11 ones who would be responsible for a very different kind 12 of reporting which was much more thoughtful, which was 13 much more led by specialists, were leaving, either under 14 pressure or because they didn't like it any more, so 15 that the whole layer of more senior, more seasoned, more 16 knowledgeable journalists were quietly disappearing. 17 I just drop that in