RESEARCH TOOLS


Afternoon Hearing on Monday, November 14, 2011

No witnesses gave statements at this hearing

Hearing Transcript

Monday, 14 November 2011 (The luncheon adjournment) (2.00 pm)
LORD JUSTICE LEVESON
Yes, Mr Jay.
MR JAY
Sir, I'm now moving off the issue of phone hacking because I need to turn to an overview of the existing regulatory system. This Inquiry will no doubt reach a range of findings on culture, practices and ethics, but its most important work will be in relation to the recommendations it makes of any change. The existing regulatory system covers the criminal law, the civil law and what may be described as internal and external self-regulation. Each of these is seeking to achieve a different objective. The Inquiry has already received a detailed briefing from Mr Mark Warby, Queen's Counsel, on these matters. I will aim to identify some key areas for further consideration. First, the criminal law. Phone hacking is an offence under RIPA as it was under the 1985 Act. The unlawful interception of communications is punishable on indictment by a term of inprisonment of up to two years. The Act covers the interception of any communications, including postal communications. There is an issue as to the true construction of section 2(7) and 8 of RIP
A. These provide, under subsection 7: "For the purposes of this section, the times when the communication is being transmitted by means of a telecommunications system shall be taken to include any time when the system by means of which the communication is being or has been transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise to have access to it." Then subsection 8: "For the purposes of this section, the cases in which any contents of a communication are to be taken to be made available to a person while being transmitted shall include any case in which any of the contents of the communication, while being transmitted, are diverted or recorded so as to be available to a person subsequently." Subsection 8 is clear and covers the recording of voicemails. It does not address the issue of timing. The issue under subsection 7 is whether a voicemail can be lawfully intercepted after it has been first listened to by its intended recipient and thereafter stored in the system as a read voicemail.
LORD JUSTICE LEVESON
I notice that you don't describe subsection 7 as "clear".
MR JAY
Indeed, for the reason which I'm about to ventilate. One would have thought that the closing words of subsection 7 cater for this possibility, and I quote "or otherwise to have access to it". That would be the natural and ordinary meaning of those words, although it has been suggested in some quarters that the relevant communication is no longer being transmitted at that point, just as a letter ceases to be transmitted by the postal service once it has been delivered. This issue is touched upon but it did not really feature in the criminal proceedings before Mr Justice Gross in January 2007, largely because the evidence in those proceedings appeared to be along the lines that Mulcaire or Goodman had listened to the relevant voicemails before their intended recipients. In relation to counts 16 to 20, however, the position was less clear. At all events, Mulcaire was prepared to plead guilty and not to take unattractive technical points. Possible doubts as to the true construction of section 2, subsection 7, were ventilated before the Select Committee as a reason for the police's arguably restrictive approach to their initial investigation. If it could not be proved in all cases exactly when voicemails were intercepted, that might have been a reason for prosecutorial caution. Whether you need to consider that issue is unclear but if you were to conclude that the meaning of section 2, subsection 7 was opaque, or still worse, failed to cater for subsequent listening of already-read voicemails, you would no doubt wish to recommend legislative changes. For the avoidance of doubt, however, my submission to you is that the meaning of section 2, subsection 7 is clear and that it does cover the case of accessing read voicemails.
LORD JUSTICE LEVESON
Just a moment, Mr Jay.
MR JAY
Yes.
LORD JUSTICE LEVESON
Let me think about what that means. I can construe the legislation and it may be that what I consider it means may consider some persuasive weight. It certainly wouldn't bind anybody. The only way I make it certain is by saying to Parliament: "Well, make it certain", isn't it?
MR JAY
Yes. You are sitting, if I may say so, ex cathedra.
LORD JUSTICE LEVESON
Yes.
MR JAY
Any pronouncement you make on a point of law, although persuasive and interesting, would not even -- I can put it in these terms -- bind a first instance judge.
LORD JUSTICE LEVESON
So it may be unpersuasive and uninteresting.
MR JAY
It would always be interesting. So if one detects a possible legal or linguistic weakness in section 2, subsection 7, maybe you should point to it and make a consequent recommendation. All I am submitting is that the better view is that there is no lack of clarity in section 2, subsection 7. The offence under section 1 of RIPA is not subject to an express public interest defence. In deciding whether or not to prosecute any individual case, the CPS will always consider the strength of the evidence as well as the public interest. One could postulate an extraordinary scenario in which public interest issues might arise for the CPS, perhaps the sort of scenario described by Mr Witherow in his July 2007 article, modifying the facts slightly. I say "perhaps" and emphasise that this scenario is an Olympic distance away from any of the recent examples. I've already touched on the issues relating to the Data Protection Act of 1998. A voicemail system contains personal data for the purposes of our statute and proceedings could have been brought on the Goodman Mulcaire facts for a breach of section 55. The reason why they were not is that the offence under RIPA is clearly regarded as more serious and more closely fitting the criminal conduct in question. One possible difficulty with the public interest defence under section 55 is that it is not statutorily defined. The courts are therefore left with the obligation to interpret it, although on my understanding have not done so in this context. Doubtless if the issue were ever to arise, the courts would be considering other materials, such as the opinion of Lord Nicholls of Birkenhead in Reynolds and the Editors' Code, as well as the mass of cases on articles 8 and 10 of the Convention. The other area of the criminal law which is highly salient to this Inquiry is the anti-corruption legislation bearing on module two in particular. Under the Prevention of Corruption Act of 1906, which replaced a late Victorian statute, it was an offence to bribe a public official. The 1906 Act has been repealed by the Bribery Act in 2011. It contains a range of quite complex provisions, including the corporate offence, under section 7, of failing to have systems in place to prevent bribery. It also contains provisions under section 1 which prevent a journalist from paying a source "to induce him to perform a relevant function or activity" or "to reward him for the improper performance of such a function or activity". But if the source is a public official, it could well be argued that it is not the proper performance of his functional duty to supply information to a newspaper. That said, one can quite see that there will be issues around the margins in relation to whistle-blowing activities. It is also to be noted that prosecutions cannot be instituted under the Bribery Act, save with the consent of the DPP or the serious fraud office or the director of Revenue & Customs prosecutions, as the case may be. These individuals would doubtless have to consider the public interest.
LORD JUSTICE LEVESON
The criminal chunk of that activity is the payment.
MR JAY
Yes. A number of press institutions have expressed concern to your Inquiry about the reach and penetration of the new Bribery Act. This may well be an issue which you are invited to consider. The Inquiry does not have the time or the resources to consider wide-ranging reform to the criminal law, nor, frankly, would this be a remotely worthwhile exercise. I have focused on just three potential areas and I doubt whether we will need to go any further. The relationship between the criminal law and what I have called internal and external self-representation, will need to be considered. Plainly, one of the objectives of criminal law is to deter crime, but it is a fact of life that its measure of success in this regard is patchy. This is not to criticise the criminal law in any way. It is the harsh reality. In relation to white collar crime, which is what we're talking about, deterrents often involve a crude cost/benefit analysis in the mind of the criminal. If he can see that people are not being prosecuted for similar offences, he may well plough on in the belief that, for whatever reason, the police will not come after him. This may be one of the reasons why a culture within News International may have grown up in the first place. Even if the criminal law were as effective as it could be, it would not follow that there is no need for better internal or external regulation.
LORD JUSTICE LEVESON
To be fair, when you're talking about culture there, you're really talking about News of the World rather than other organs of News International?
MR JAY
Yes. I turn now to the civil law, which is a potentially vast area. Inevitably, I will only be skating the surface. The Inquiry will not be directly concerning itself with the law relating to defamation, which is already the subject of much parliamentary scrutiny. We are concerned with the developing law of privacy, which in terms of our domestic law, and some would argue our common law, has grown out of the interplay between and the consequent need to balance articles 8 and 10 of the European Convention of Human Rights. I stress domestic law because the effect of the Human Rights Act 1998, which mostly came into force on 2 October 2000, is to require judges as public authorities to give effect to Convention rights. Article 8 of the Convention provides a right to respect for private and family life, home and correspondence, article 10 to freedom of speech. It is immediately apparent that these rights must, on occasion, intersect with each other and the convention itself recognises that. Thus, under article 8, subarticle 2, a public authority may interfere with private life where such interference is in accordance with the law and necessary for the protection of the rights and freedoms of others, and under article 10, subarticle 2, the right of freedom of expression can be curtailed or restricted "for the protection of the rights of others or preventing the disclosure of information received in confidence."
LORD JUSTICE LEVESON
And confidence is the tort which a lot of these claims are based upon?
MR JAY
Yes. The courts have consistently recognised that in a situation where article 8 potentially clashes with article 10, each human right has equal status. It is a question of balancing one right against the other, of calibrating the degree of infringement in any given case and in deciding whether the infringement in question is in accordance with the law and proportionate to the intended gain and the avoidance of foreseeable harm. The concept of proportionality is perhaps key to this exercise. Whether all newspapers are fully alive to this concept may lie at the heart of this Inquiry's investigation. I mentioned that for the purposes of article 8.2 of the Convention, the interference with private life, if it is to be justified, must be in accordance with the law. Phone hacking is not in accordance with the law. It follows that for the purposes of the article 8, article 10 intersection, privacy will always win out in relation to phone hacking. Complaint has consistently been made that the need to balance article 8 and article 10 rights places too much power in the hands of the judges to create a privacy law without democratic accountability. But judges have to rule on individual claims and since the year 2000, claimants have been entitled to allege that their article 8 rights have been violated. Judges are duty-bound under the Human Rights Act to apply the Convention, whether directly or via existing common law concepts inherent in the law breach of confidence and a burgeoning privacy law has begun to emerge through an admittedly limited number of cases decided over the past ten years: Naomi Campbell in the House of Lords in 2003, Max Mosley at first instance in 2008 and Rio Ferdinand, again at first instance, in September of this year. It is not possible fully to define what the common law of privacy constitutes, particularly when one notes that Rio Ferdinand's case is en route to the Court of Appeal. All that one can say is that on particular facts, the judicial outcome was as follows. Thus, on the facts of Naomi Campbell's case, the intrusion into her privacy went too far in view of the photograph of her that was published alongside the article. The latter by itself would not have been objectionable, since there was a public interest in the subject matter. In Max Mosley's case, there might well have been a public interest in publishing the material in question had the Nazi allegation been true, but critically, it was not. The public therefore had no legitimate interest in the details of Mr Mosley's private life, which were a matter for him.
LORD JUSTICE LEVESON
In that case, the decision of Mr Justice Eadie did not go to the Court of Appeal.
MR JAY
It did not.
LORD JUSTICE LEVESON
Yes.
MR JAY
And we'll be hearing much evidence about that case next week, sir. In Rio Ferdinand, the outcome is different because for Mr Justice Nicol, the role model argument found favour. There was a legitimate public interest in contradicting the public persona of a high profile sportsman by evidence of private misdemeanour. The Court of Appeal may provide greater certainty in this area before this Inquiry reports. In the meantime, or perhaps in any event, there will be calls for statutory privacy law. Such a law could go further than the rights already protected by article 8 of the Convention. At the very least, this Inquiry will need to address those calls in deciding whether to make any relevant recommendations. Two matters should be noted. First, a statutory privacy law would not remove power from the hands of the judges, since they would still have to interpret and apply it. Such a law would do no more than set out the general principles to be applied in particular cases, not algorithms for mechanistic application. Secondly and more importantly, recourse to the civil law is expensive and risky. Newspapers complain about the cost to them in the form of what they describe as unscrupulous lawyers' fees and conditional fee arrangements, but the latter are probably already on their way out in their current form, and recently have been held by the European Court of Human Rights as being in breach of article 10 of the Convention in a freedom of speech context. See Mirror Group Newspapers v the United Kingdom. The other side of the coin is that the litigation risk is often too high for private individuals with means and often theoretical for those without means. They can't afford even to go to a lawyer to tell them what the risks might be. The position is not dissimilar in relation to the prior notification issue and the possibility of acquiring newspapers to warn likely targets of impending publications to enable them to obtain immediate restraining orders from a High Court judge. But although the civil law is important, this Inquiry is unlikely to be attracted by solutions which are limited to the wealthy and the bold. The greater imperative may be to find solutions which work for everyone and which are, therefore, efficient, quick and cheap.
LORD JUSTICE LEVESON
That might mean, might it not, considering a system whereby litigants and newspapers, or those who complain about newspaper practices and newspapers, can obtain a resolution without the expensive paraphernalia of litigating through the Chancery Division or the Queen's Bench division.
MR JAY
Yes.
LORD JUSTICE LEVESON
Yes.
MR JAY
I turn now to the systems of internal and external regulation, since these lie at the heart of the Inquiry's work during part one. Before explaining the difference between internal and external regulation, I should make this general observation: the purpose of regulation in general is to maintain the public confidence, to declare appropriate standards of behaviour and conduct and to modify behaviours by what may loosely be described as a series of sticks and carrots. The manner in which a good regulator achieves is this is not merely by dealing with problems after they arise but in setting standards which reduce the risk of those problems occurring in the first place. By "internal regulation" I mean the range of systems within an organisation which promote or induce good behaviours and tend to expose bad behaviours if they occur. Appropriate synonyms are "corporate governance" or, more broadly perhaps, "corporate ethos". The absence of such systems will render it more likely that dysfunctional cultures will start and be permitted to drive. We're therefore looking at a range of internal checks and balancing, including the following: rule books, codes of practise, clearly spelt out obligations in employment contracts, training and internal seminars, proper involvement of and oversight by in-house legal advisers, proper accounting systems for approving expensive payments, in particular cash payments to sources, risk management systems and proper whistleblowing policies. The evidence submitted to the Inquiry demonstrates a wide range of corporate governance systems within the industry, from the virtually non-existent on the one hand to the extremely detailed on the other. Some witnesses have said that these systems are no substitute for journalists being trusted to use their own moral intuitions fashioned by experience, but this rather assumes that their moral compasses are pointing in the right direction in the first place and the pressures do not exist to cause that compass needle to want to deviate from the right direction. The relevant evidence in these issues will all be examined when the Inquiry hears from the key press witnesses. The concept of external regulation scarcely needs to be defined. Self-evidently, we're looking at systems outside the organisation in question. Here I propose to start with the Editors' Code of Practice, which it is the obligation of the Press Complaints Commission to enforce. Typically, journalists have an express contractual obligation to comply with the code of practice, and so this might also be seen as an example of internal regulation. Whereas the PCC comprises both press and lay members, the latter being in the majority, the Editors' Code of Practice Committee, responsible for revising the code, comprises 13 editors across a range of publications. The current position is that the code is reviewed annually. The latest edition of the Editors' Code was ratified by the PCC in January 2001.
LORD JUSTICE LEVESON
Probably '11?
MR JAY
2011.
LORD JUSTICE LEVESON
Yes.
MR JAY
Sorry. It's to be found in our document system. I give the reference and I hope it might be possible to produce it on a screen. Indeed it is, but whether we can see it at that level of magnification is another matter.
LORD JUSTICE LEVESON
If you want to focus on bits of it, we might even be able to do that.
MR JAY
Let's see how we get on. There is also a handbook to the Editors' Code of Practice, the 2011 of which, only available online, the Inquiry will need to consider. The handbook is a commentary on the code and expands on and interprets its provisions. Given that the code of practice encapsulates so many of the issues which are central to module one of this Inquiry, I will take time to dwell on it. The preamble to the code, which I think is at the very top, states that it provides the benchmark for ethical standards, protecting both the rights of the individual and the public's right to know: "Both the letter and the spirit of the code should be fulfilled. Editors should co-operate fully with the PCC in the resolution of complaints. Any publication judged to have breached the code must print the adjudication in full and with prominence, including headline reference to the PCC." As I hope you can see, even if I can't, there are 16 separate provisions of the code, eight of which are asterisked; in other words, made subject to the express public interest exception mentioned at the bottom right-hand side of the document. I hope you can see that.
LORD JUSTICE LEVESON
Yes. So this is the public interest?
MR JAY
The public interest, yes.
LORD JUSTICE LEVESON
Is that what you're going to turn to?
MR JAY
In a moment. I'm just going to press one button and see whether I can yield --
LORD JUSTICE LEVESON
We now have the public interest --
MR JAY
Actually, I'm going to article 1, first.
LORD JUSTICE LEVESON
You were asked, Mr Jay.
MR JAY
Yes. I caused myself to go off piste. May I start with article 1 before I get to public interest? Article 1, which has been found, obliges the press to take care not to publish inaccurate, misleading or distorted information, including pictures. The press, while free to be partisan, must clearly distinguish between comment, conjecture and fact. Article 1, as we can see, is not made subject to any public interest exception. Logically, there cannot be any public interest in publishing facts which are inaccurate. But if an individual complains that facts about him or her are inaccurate and this complaint is upheld, then the press have an obligation to set the record straight, although they are accorded considerable discretion and latitude as to the means of doing so. This is separate from any issues which arise in the context of privacy, because in that context, the individual may have a complaint, even if the facts are accurate. However, the issue becomes particularly acute when an inaccuracy complaint is coupled with a privacy complaint, since the inaccuracy compounds the violation of privacy. Article 1 also covers the publication of matters such as inaccurate statements of scientific fact. I have already alluded to this. Sometimes inaccurate statements of scientific fact are dangerous because they cause unnecessary public concern or prompt people to fail to take sensible health measures. The difficulty here is that the boundary between fact and opinion is very often hotly debated. If it is clear that facts have been inaccurately stated, they must be corrected. However, I should not be interpreted as encouraging an overly philosophical approach. A robust and common sense approach is required, particularly where the rights of individuals are concerned. Demonstrable errors must be corrected and in a condign manner. Article 1(ii) of the code expressly recognises this, as does article 2, but questions have been raised as to the extent to which organs of the press honour this obligation and the PCC enforces it. Article 3 of the code, which, broadly speaking, mirrors article 8 of the Convention, is absolutely critical. Intrusions into a person's private life must be justified --
LORD JUSTICE LEVESON
Let's see if we can do that for the people who are able to see one of these screens. Can we do article 3?
MR JAY
Just a bit higher. I think we're on 4. I think we're on harassment. (Pause) Great.
LORD JUSTICE LEVESON
Thank you.
MR JAY
We can see from article 1, subarticle (i), the mirroring of article 8 of the Convention, although not word for word. Intrusions into a person's private life must be justified, likewise must the taking of photographs in private places; in other words, public or private prospect where there's a reasonable expectation of privacy. The handbook contains a useful section on what is meant by the concept of a reasonable expectation of privacy. Before publication, editors are required to decide whether the person was photographed out of the public view -- that is not visible or identifiable with a naked eye to someone in a public place -- and whether he or she was engaged in a private activity at the time. Thus the taking of photographs of a famous person in prayer at Notre Dame Cathedral was deemed by the PCC to be a private intrusion, whereas the photography of another famous person on the Majorcan beach in the height of summer is not. As we will hear the week, the PCC has taken a different view in relation to a beach in Mauritius in low season.
LORD JUSTICE LEVESON
That can't be the balance, whether it's high or low season.
MR JAY
There is an issue as to whether beaches in Mauritius are public or private places, but the evidence in that case -- and we will hear about it -- is it was probably a private beach because it belonged to the hotel and the public did not have untrammelled access to it.
LORD JUSTICE LEVESON
There are also issues about photographing famous people simply walking along the street.
MR JAY
Mm. The Mauritian case, to be absolutely clear, was the eight year old child of a famous person.
LORD JUSTICE LEVESON
Yes.
MR JAY
I accept that sentence is slightly elliptical, but I have now expanded upon it. The term justified clearly requires a balancing exercise. Factors to be placed in the balance include: the complainant's own public disclosures of information and the extent to which the information in question is already in the public domain or may become so; detecting crime or serious wrongdoing; protecting public health and safety; and preventing the public from being misled by an action or statement of an individual or organisation.
LORD JUSTICE LEVESON
Should we just see the public interest exception --
MR JAY
Yes, that's likely to be the bottom right hand --
LORD JUSTICE LEVESON
-- going back to the bit we were on before.
MR JAY
Yes.
LORD JUSTICE LEVESON
Maybe you could just go through it.
MR JAY
There's an inclusive definition and therefore it's not confined to the three categories we see as (i) (ii) or (iii). The paradigm case would be "detecting or exposing crime or serious impropriety", perhaps another equally important case is "protecting public health and safety" and then the more controversial case, because its meaning is less precise, "preventing the public from being misled by an action or statement of an individual or organisation". The public interest exception in the code, as we can see, makes it clear that there is a public interest in freedom of expression itself. This, of course, is true, see article 10 of the Convention, but what this wording does not quite achieve is to make it explicit that one competing public interest must be weighed against another. Otherwise, there is a danger that editors will simply identify the article 10 interest, which by definition will always exist, and deploy it as a trump card. Nor is there any express reference in the code to the concept of proportionality or to the nature of the subject matter, although it should be noted and emphasised that the editors' handbook stresses the importance of this, observing: "It is here that editor as often fall down." The public interest exception raises a number of massive issues. I propose to list just some of them. First, under the terms of the exception, I quote: "Whenever the public interest in invoked, the PCC will require editors to demonstrate fully that they reasonably believe that the publication or the journalistic activity undertaken with a view to publication would be in the public interest." This sentence has been well-crafted. It draws a helpful distinction between means and ends, between new journalistic news-gathering methods and the end product. Sometimes the complaint relates to both but very often the focus is on the means. Secondly, the journalist is required to demonstrate that the activity would be in the public interest. In a case where news-gathering methods are called into issue, the appropriateness of the methods must be demonstrated before the event and not after. Lastly, the test is whether the journalist reasonably believed that publication et cetera would be in the public interest. Honest belief is insufficient. The belief must be reasonable. Journalists are already given a large measure of discretion here, since two reasonable people may differ and the question arises as to whether the test should be made more objective. Very often, the editor makes a rapid judgment under considerable pressure of time and commercial imperatives. These judgments are rarely recorded, still less second-guessed or vetted. The question arises as to whether, as a matter of good practice, these decisions should be entered into a contemporaneous written record with the gist of the reasons given. In the absence of such a record, the PCC should be much slower to find that any justification exists. This is my third point. The public interest exception includes a reference to the public being misled by an action or statement. In principle, therefore, it might be argued there is a public interest in exposing any mismatch between an individual's public persona and his or her private life. This is the hypocrisy argument I have mentioned before. One does wonder whether, in maintaining such an argument, those who propound it are placing too much weight on the terms "action or statement". What may well be required is the identification of some express statement or specific action by the individual under scrutiny. Implied mismatches may well be insufficient. In any event, another difficulty here, regardless of the view which might be taken on the precise language of the public interest exception, is there's a range of factual scenarios and each is capable of being treated differently. On the one hand, there may be the celebrity who employs public relations consultants positively to depict a particular image or persona designed to enhance his or her standing and to earn more money. If evidence is unearthed to show that the cultivated image is false, then, depending on how that evidence has come to light, it's certainly arguable that there's a public interest in disclosure. On the other hand, they may be individuals who are celebrities simply by virtue of the fact that what they are good at doing interests the public. These people may be doing absolutely nothing to cultivate a particular image of themselves and they contend, with some force, that they're not public figures and that their private lives are not for public consumption. Then there may be a range of cases which fall in the middle: role model cases such as Rio Ferdinand and cases of those who find themselves in the public eye because they have chosen to place themselves there; for example, a politician. If a politician makes a statement about the virtues of family life, one can quite readily see that certain consequences will flow if that politician's private life suggests adherence to different standards, but at this stage I'm putting that sort of stark example to one side. In this difficult middle ground, there are no hard and fast rules and certainly no clear answers. Ultimately, it's a question of public expectation. Do we expect our footballers to be role models once we've taken care in defining what that term means? Do we expect our politicians to abstain from breaking the seventh commandment, or more precisely, does the press have the right to publish a failure to abstain? Even this superficial analysis I have attempted demonstrates that the issues are subtle and complex ones. In terms of substance, the public interest exception probably needs to say more than it currently does. In his witness statement to the Inquiry, Mr Alan Rusbridger, the editor of the Guardian, refers to the five Omand principles which have been incorporated into the Guardian's own editorial code. We will be hearing about these in due course. Perhaps the key principle is this: that the methods used must be in proportion to the seriousness of the story and the public interest, using the minimum possible intrusion. Here one is back to the distinction -- which some would say is an entirely judgmental one -- between investigative journalism on the one hand and the quest for gossip and entertainment on the other. The final massive question relates to process. Editors make these decisions and they are unaccountable, save to their proprietors and to their readers. If they fail, they will be sacked, but failure means not selling enough newspapers. It does not mean consistently making the wrong judgment calls in this context.
LORD JUSTICE LEVESON
Or does not necessarily mean.
MR JAY
Yes, because some proprietors would say that it does include that. Their readers may vote with their feet, as they might well have done in the face of the Milly Dowler revelations, had it come to it, but extreme facts would surely be required. Editors are rarely slow to judge the private lives of others, but those whose privacy is claimed to have been invaded will want to know who is judging, controlling or peer-reviewing the editors. On rare occasions, the civil courts have been asked to do this but the drawbacks here have already been discussed. Beyond this, the custodians of the press are the PCC but the question has been raised as to whether they have consistently done enough to constitute a break on editorial power.
LORD JUSTICE LEVESON
The other question is whether they are truly custodians.
MR JAY
Yes.
LORD JUSTICE LEVESON
Are they --
MR JAY
Are they regulators properly so-called, a matter which I'm about to turn to.
LORD JUSTICE LEVESON
Yes.
MR JAY
My final point on the Editors' Code relates to article 10 of the code. By this provision, the press must not obtain or publish material --
LORD JUSTICE LEVESON
Let's see if we can get that up.
MR JAY
Okay. It's in the middle somewhere. It's the third column. Yes, thank you.
LORD JUSTICE LEVESON
Thank you.
MR JAY
It's one of the asterisked provisions. By this provision, the press must not obtain or publish material acquired by the use of hidden cameras, et cetera, interception of telephones or voicemails, unauthorised removal of documents or by accessing digitally held information without consent. As I've said, this is one of the asterisked provisions and is therefore subject to the public interest exception. The difficulty here is that many of the activities referred to are illegal under the criminal law: the RIPA for telephonic interception, the Theft Act for removal of documents without consent and the Computer Misuse Act for the unauthorised access to digitally held information. The Editors' Code does not make this clear, and in treating hidden cameras in the same way as telephone interceptions it is in danger of misleading its target audience. Illegal conduct should be described as such, so as to avoid any confusion. I could have touched on other provisions of code, but in the time available I've been selective. My critique has been largely textual and I hope a neutral one. I confine myself to unremarkable matters. If the Inquiry wished to read a less neutral but, some might say, more trenchant approach, there's always chapter 14 of "Media Law", written by Geoffrey Robertson QC and Andrew Nicol QC as he then was. This book chapter, which has been copied and exhibited to witness statement of Mark Thompson, from whom we will hear next week, also contains a powerful attack on the PCC. Overall, the Editors' Code, as a document enshrining good practice, may not require wholesale revision. I've indicated the respects in which it might be improved or clarified and there may be others. That said, what a brief analysis of the Editors' Code achieves is to focus the Inquiry on some of the key issues with which it will have to grapple. I have covered the issue of approach to and application of the public interest test. I've also mentioned the issue of process, of what happens in editor's make arguably wrong decisions and of how the record might be set straight. The entity responsible for enforcing the code is the Press Complaints Commission, which was set up in the wake of the Calcutt reforms in the early 1990s. Then, apparently, the press was in last chance saloon, and many of the issues which will trouble this Inquiry were, as it happens, also addressed by Sir David Calcutt. Your terms of reference require the Inquiry to consider the extent to which there was a failure to act to previous warnings about media misconduct and the response to Calcutt is one of the main issues here. It will probably be more valuable, however, if I were to concentrate on the PCC as presently constituted, and consider whether it ticks all the relevant boxes. The truth is that both the public and politicians appear to have lost faith in it. The reasons for this are likely to be multifactorial, but one important consideration is likely to be the PCC report in 2009, effectively siding with News International over its interpretation of the phone hacking scandal and criticising the Guardian for overdramatising the issue. The PCC has since withdrawn that report, but the damage has been done. A broad consensus emerged during the seminars as to the strengths and weaknesses of the PCC. It offers a relatively quick complaints and mediation service at no cost to the complainer. At its best, it sends out desist notices to newspapers, warning them off potential breaches of privacy. It offers useful advice to editors and journalists working in the coalface and in many cases it efficiently brokers compromises which may well be satisfactory to the complainant. This work is largely done behind the scenes and the public cannot therefore assess its value. The public hears far more from dissatisfied customers than satisfied ones, but this is the nature of the beast. However, the limited resources of the PCC means that its role is largely reactive, not proactive, and that its ability to investigate and probe is circumscribed. It mainly operates by seeking to find middle ground because it constantly needs to retain the support of the press for what it does. The PCC cannot require a newspaper to print a correction or apology on the same page as the original offending article. It can advise and recommend, but there's no sanction for disobeying its rulings. Nor has the PCC the power to fine newspapers or order them to pay compensation. All of this gives the expression that the PCC is operating largely without teeth and that in the occasionally ruthless world in which it's forced to operate, something altogether sharper is required. Another obvious weakness in the PCC is that newspaper groups cannot be compelled to sign up to its scope and in January this year, Northern & Shell withdrew its subscription to Presboff, and thereby from the formal jurisdiction of the PCC, with immediate effect. The Inquiry will need to consider Northern & Shell's reasoning for withdrawing before coming to any clear conclusions about the significance of this, but the very fact that an important newspaper group can extricate itself from the discipline of self-regulation without any fallout necessarily calls into question the efficacy of the current system. Other publications have also put themselves beyond the PCC's reach. The time has come to attempt to draw some of these strands together. Inevitably, the recommendations you will make as to the future will depend to some extent on the factual findings you make in relation to the culture, practices and ethics of the press. Put bluntly, the fewer the problems you identify, the less it may be said that you need to recommend changes to the status quo. Naturally enough, the converse is also true. But regardless of the findings you make in relation to culture, practices and ethics, you will need to consider whether the existing system of self-regulation is fit for purpose on a number of levels. First, systems regulation must command the confidence of the public, as well as being effective in regulating and improving behaviours. If the confidence of the public has been lost, changes may be needed for that reason alone. Secondly, systems of regulation must be responsive to rapid technological change, and in our context, to the formidable challenges presented by the Internet and other similar means of mass communication. Thirdly, systems of regulation must continue to reflect the needs and expectations of the public and the rights and responsibilities of the press itself, and achieve the right balance between these competing interests. Most importantly, any effective regulatory system needs to deliver remedies which are efficient, quick and cheap. Some have commentated that this Inquiry should not be beguiled into overreacting to the News of the World phone hacking scandal for this straightforward reason. They point out correctly that phone hacking is and always has been illegal. It follows, they say, that the correct response to phone hacking is more effective enforcement of the criminal law rather than enhanced regulation of the industry. Additional, it could be said that the appropriate response also lies in improving access to the civil courts and bringing newspapers to account in this way, as indeed will be happening in the civil litigation to be tried by Mr Justice Vos in January. But the fact that the criminal law is, in principle, involved is unlikely to be a complete answer to this issue. Improvements in the criminal law, in particular improvements in law enforcement, can and should be considered. However, white collar crime of this sort is notoriously difficult to detect, and even a wholly effective criminal law would be unlikely to supply all the answers. Improvements in the civil law can always be envisaged and effectuated but here, again, any such improvements would be unlikely to be all-embracing. Overall, the Inquiry will be considering a tripartite regulation: Criminal law, civil law and internal, external regulation, properly so-called, with perhaps the most important element being possible enhancements to the last of these. The point can be made by looking at examples in other regulatory spheres. Dame Janet Smith's Inquiry into the serial murders of Harold Shipman led to wholesale changes in the system of medicine regulation. Whereas the immediate subject matter of the Inquiry was the criminal acts of one GP, she has not seriously suggested that the only appropriate response to this should have been a series of recommendations limited to enhancing criminal law enforcement. The domestic regulator clearly had a role to play.
LORD JUSTICE LEVESON
Before you go on to discuss aspects of medical regulation, there is one feature of recent events that actually underlines the point that you're making, doesn't it? That is the recent revelations of those who perhaps should not have been the subject of surveillance being the subject of surveillance and the activities of private detectives, which may not breach the criminal law --
MR JAY
Yes.
LORD JUSTICE LEVESON
-- at all --
MR JAY
Yes.
LORD JUSTICE LEVESON
-- but which, if various commentators are right, certainly were not appropriate.
MR JAY
Sir, yes. There's one additional important point I should make about medical regulation because it assists in defining the terms of the discourse. Registered medical practitioners are self-regulated, notwithstanding that the general medical council was established under statute and its fitness to practice panels operate within the legislative scheme. Plus a self-regulated system can be statute-based even if the regulator is not government-run. As it happens, we can see the same sort of model in operation in relation to solicitors and barristers. In all of these examples, it should be noted that the subject matter is the regulation of a body of professionals. Viewed in those terms, the immediate dissimilarities with press regulation are manifest, since professionals do not exercise article 10 rights. At your seminars, there appeared to be little or no enthusiasm in those present for a government-run regulatory system, which would be a form of statutory regulation, still less for a system of state licensing of journalists.
LORD JUSTICE LEVESON
That doesn't really work because if journalists are merely exercising article 10 rights it's rather difficult to say, "You can't do that." You can say a doctor can't practice medicine or a lawyer can't appear in court.
MR JAY
Yes.
LORD JUSTICE LEVESON
Yes.
MR JAY
This lack of enthusiasm does not place the issue wholly beyond the agenda of this Inquiry, but is something which we can have noted. The real point though is that the true dichotomy is not between self-regulation on the one hand and a government-run regulatory system on the other. It remains to be seen whether the Inquiry will be attracted by a solution which entails what might be called enhanced self-regulation without any legislative changes, or whether the way forward will be statute-based regulation in some shape or form, where the standing in its own right was part of a co-regulatory regime. The possible merits and demerits of the latter will be considered by the Inquiry in the context of the evidence adduced by Ofcom and the BBC and more generally. I mention for the third time now the need for a system of redress which is quick, efficient and cheap. From the perspective of the consumer, the attributes of such a system may include an enhanced right of reply, the mandatory correction of frank errors in a manner proportionate to the original offending article, an enhanced role for the PCC or any successive body in adjudicating on complaints and compelling newspapers to record and publish its findings, and the setting up of some sort of tribunal, panel or assessor to provide binding arbitral rulings in breach of privacy in similar cases much. Some might say that prior notification is an essential ingredient of such a system. Others might say that the perspective of consumer is the wrong perspective and the press should be allowed to continue their work in a free and open society. These are the sorts of issues which are likely to occupy our time in the months ahead. I said I would touch on the scope and subject matter of modules two and three of the Inquiry. Module two concerns the relationship between the press and the police. The public perception -- and we will have to investigate whether it has some grounding in fact -- is that the police are often paid by the press in order to provide tips, leads, information and stories. Such payments, if made, are likely to have been in breach of the Prevention of Corruption Act 2006 and now the Bribery Act 2010. Such payments may also be part of a wider picture and a wider vice, namely the extent to which the police acts collusively with the press in failing to investigate the latter's criminal wrongdoing because there's some sort of Faustian pact or symbiotic relationship existing between them.
LORD JUSTICE LEVESON
Of course, there has to be a relationship between the police and the press in one sense because the police use and legitimately use the press in order to seek out witnesses.
MR JAY
Yes.
LORD JUSTICE LEVESON
And to gain publicity for particular lines of Inquiry that they're seeking to pursue.
MR JAY
Yes.
LORD JUSTICE LEVESON
There's a balance.
MR JAY
Indeed.
LORD JUSTICE LEVESON
Yes.
MR JAY
These are all important issues, but the extent to which this Inquiry will be able to penetrate institutional shields, palisades, moats and portcullises is questionable. It will be dependent on witnesses coming forward prepared to spill the beans, and as we know, there is an ongoing police investigation. Module three, the relationship between the press and politicians, will not be constrained by any ongoing police investigation. Here the issues are as important as they are obvious. We are talking about the trade in influence and power, or at least that perception. The press have sway over politicians to the extent that it is within their power to endorse particular political parties or causes and certain newspaper groups are seen as floating voters. Accordingly, the existing political settlement encourages a state of affairs in which powerful institutions and powerful men and woman within those institutions are wooed by politicians in order to retain or change their political allegiances as the case may be. What is the quid pro quo for this? On one level, it might simply be said that press proprietors and editors enjoy the wielding of an unaccountable power and that this enjoyment is enough to constitute the price for the bestowing of favour. On the other hand, it may be said that for some the quid pro quo is a higher price, namely the bestowing of commercial favours by government. The unaccountable power of the press, or of certain parts of it, is a consistent theme here, and if that power is concentrated in a limited number of individuals, the problem is capable of being visualised as all the more menacing. This Inquiry will start by hearing evidence from the core participant victims from a range of individuals in various walks of life who claim to have suffered from various manifestations of press misconduct and who wish to bring these matters to the Inquiry's attention. Then we will move on to hear evidence from those directly involved in Operation Motorman and the work of the Information Commissioner's office in this respect. Thereafter, the work of the Inquiry will branch out into hearing a number of witnesses who are critical of the culture, practices and ethics of the press before we move on to hear the substantial body of press evidence, which is likely to give us a different perspective. Then we will hear from the BBC and other broadcasters before concluding module one with evidence from the regulators. This undoubtedly is a challenging programme and I have not even mentioned the witnesses for modules two and three. I said at the outset that this Inquiry will set some unprecedented challenges. I do not believe that I was guilty of any exaggeration.
LORD JUSTICE LEVESON
Nor, for the avoidance of doubt, Mr Jay, do I. I think that's possibly a convenient moment to have a break. We'll come back in about quarter of an hour. Thank you very much indeed. (2.58 pm) (A short break) (3.12 pm)
LORD JUSTICE LEVESON
Right. Mr Jay, let's see if we can work out where we're going to go from here. As I understand it, witnesses have been arranged to commence from next Monday?
MR JAY
Sir, yes.
LORD JUSTICE LEVESON
So we have the rest of the day and the next couple of days, on the basis of our seven-day format, sitting four days next week, to hear the remaining opening submissions.
MR JAY
Yes.
LORD JUSTICE LEVESON
Do I gather that your informal discussions suggest that that won't necessarily take up all the time that I have available?
MR JAY
We have plenty of time to hear the remainder of the opening submissions on Tuesday and Wednesday. The programme for the moment, so that I can make it clear -- I've discussed it with the individuals concerned but not necessarily with everybody collectively -- is that Mr Jonathan Caplan QC will be starting tomorrow at either 10 am or 10.30 am on behalf of Associated News, and Mr Rhodri Davies QC --
LORD JUSTICE LEVESON
Why is that this way around? I'm not terribly excited about it, but why is Mr Rhodri Davies not starting?
MR JAY
It doesn't matter.
LORD JUSTICE LEVESON
Oh, I see.
MR JAY
If you feel that we should hear from Mr Davies first --
LORD JUSTICE LEVESON
I just wonder whether his clients' -- well, perhaps -- it might be there's a reason for Mr Caplan wanting to go first because he has other commitments.
MR JAY
No.
LORD JUSTICE LEVESON
All right.
MR JAY
If you feel it should be Mr Davies and then Mr Caplan, let's do it that way around. I know that Mr James Dingemans QC is otherwise engaged until 3.15 in the Supreme Court, so we have pencilled him in but not before 3.15. Frankly, at the moment, unless the Daily Telegraph are wanting to make oral submissions -- and we don't believe that they do -- that's it for tomorrow. On Wednesday, at the moment, we have --
LORD JUSTICE LEVESON
The Telegraph have submitted something in writing, haven't they?
MR JAY
Yes. I think Mr Gavin Millar was telling me he's not minded to amplify those orally.
LORD JUSTICE LEVESON
But I might want him to. He's gone? MR SPEKER: He has gone, but we can check on his availability, if you wish.
LORD JUSTICE LEVESON
Yes. I don't mind sharing with you my concern, because it seems to me that it's probably sensible that these submissions are available publicly. I don't require people to speak where they don't wish to, but if I just pick up the document which I've seen, I'm rather concerned at paragraph 6 of his opening submission. So that this is not coded, let me read it and tell you what my concern is. It says: "The starting point of the Inquiry that a free and enquiring press acting in the public interest is fundamental to pluralistic democracy gives us encouragement." Well, I'm pleased about that. I have no problem with that at all. It's the next sentence: "We also welcome the Inquiry's appreciation that 'any new regulatory system, howsoever devised or organised, could impact adversely on freedom of expression or have a chilling effect on responsible journalism which is so critical in our democratic society'." Now, that quotation is actually a quote from paragraph 34 of a ruling I gave, but with great respect, it doesn't seem accurately to reflect that ruling. The words are correct but the inference from paragraph 6 is that I was saying that any new regulatory system could impact adversely, and that's not what I said at all. If necessary, I would want to hear Mr Millar on the topic, or you could review it. If I just remind you what I did say, what I said was this: "The fundamental dichotomy is between a requirement to understand and identify the extent to which the print media have been prepared to use illegal or unethical techniques on the one hand, and descending into the detail of specific acts of alleged illegal and unethical conduct on the other." I omit some words in parentheses. "In avoiding the latter, however, I must not leave the analysis of the former at such a high level that it is insufficiently evidence-based to justify reaching conclusions about the adequacy of present methods of regulation and the justifiability of new or different mechanisms. That is so particularly if it could be suggested that any new regulatory system, however devised or organised, could impact adversely on freedom or expression or having a chilling effect on the responsible journalism which is so critical in our democratic society." I hope you see that those two things are slightly different. MR SPEKER: Sir, we'll take on board those comments.
LORD JUSTICE LEVESON
It's rather odd that one is doing it the wrong way around. I have no problem if the Telegraph don't formally want to open it. That's absolutely up to them and I'm very happy to put their opening submissions into the public domain, but I'd be supremely grateful if they didn't -- I won't use the word "spin", but slightly misrepresent what I was rather careful to say in that paragraph. It may be that that's where I am, but if one reads your submission, it suggests I've already got that. MR SPEKER: We will take that on board.
LORD JUSTICE LEVESON
Thank you very much. Right.
MR JAY
And then Wednesday? I was going to fill you in on Wednesday?
LORD JUSTICE LEVESON
Carry on with Wednesday, yes.
MR JAY
The NUJ are going first, at the moment at 10 am. I think we're going to hear from their general secretary, Michelle Stanistreet. Then we have Alan Rusbridger of the Guardian, who is lined up for about 11 o'clock on Wednesday, and then Mr Sherborne will conclude.
LORD JUSTICE LEVESON
Then you may come back?
MR JAY
Then I may or may not come back, and of course we're going to hear from Mr Garnham now.
LORD JUSTICE LEVESON
Yes.
MR JAY
A witness list for next week, which takes us actually to close of play on Monday, 28 November, will be made available this evening, and we can hope to populate the remaining days, the 29th and 30 November and 1 December, by, say, close of play Wednesday this week, so everybody knows what we're doing until 1 December. We would welcome, in relation to next week's witnesses, any lines of questioning from the core participants.
LORD JUSTICE LEVESON
And they will have the statements on the intranet available for them from when?
MR JAY
Some are there already. They're going on as fast as possible.
LORD JUSTICE LEVESON
Very good. That's one of the reasons why we can't start until Monday, until everybody's had a chance, besides the complications of organising people to be here.
MR JAY
Yes.
LORD JUSTICE LEVESON
Right.
MR SHERBORNE
Sir, can I rise, somewhat perturbed, to raise a matter which I hope sincerely is a coincidence and nothing more sinister, but there has been detected on our system -- and I say ours because I see it nowhere detected on anybody else's intranet system -- a threat, according to my computer in front of me; namely that --
LORD JUSTICE LEVESON
A threat?
MR SHERBORNE
A threat raised by the possible interception of material on our intranet system. I say that because we do have on our system, unlike others, confidential material, as I understand it. I'm told it's the same, but a Trojan horse has been detected, seeking to access material on our computer system. Now, it may well would be a coincidence but looking around the screens, I don't see a threat detected on anyone else's computer systems.
LORD JUSTICE LEVESON
There's nothing at all on my screen. What does it say? Read it out.
MR SHERBORNE
It says, in very large red lettering, rather similar to the News of the World get-up, it says -- THE CHAIRMAN: No, no, Mr Sherborne, I'm sorry, that's a gag that you're going to have to do without. Keep going.
MR SHERBORNE
"Threat detected. File name ..." Then it has a file name, a series of digits and letters, and then: "Threat name: Trojan horse", which, sir, you will appreciate does refer to a computer virus.
LORD JUSTICE LEVESON
I know what it means.
MR SHERBORNE
Then it simply offers a series of options: "Move to vault", which is safely to quarantine the infected file, "Go to file", which I think takes you to the file or part of the registry where that file resides, and then the last one and perhaps the least attractive, which is to ignore the threat. I don't know whether anyone can deal with this at this stage?
LORD JUSTICE LEVESON
I absolutely want it dealt with at this stage.
MR SHERBORNE
Sir, that's why I rise at this moment.
LORD JUSTICE LEVESON
No, no, Mr Sherborne, thank you very much. My screen is entirely blank. MS PHILLIPS: Can I just say I had something similar when I started off this morning but I cleared it and it's gone.
LORD JUSTICE LEVESON
You decided to ignore it, did you? Somebody must understand the men that run around in these machines. Thank you very much, Mr Sherborne. I would be grateful if that could be dealt with as soon as possible and certainly today. With that excitement out of the way, does anybody have any observations about the timetable?
MR DAVIES
I don't know if it properly goes with a conversation with the timetable, perhaps I could just say that so far as we're concerned, our written opening submissions were written to be made public, and they can be made public as soon as anyone would like to do it. I say that because I am not intending to read them out or repeat them in my oral opening tomorrow morning.
LORD JUSTICE LEVESON
No, I understand that and that's very helpful. That will happen. I have rather visualised that those who have put in written submissions are aware they're likely to go on the Internet, as indeed all the other submissions have been made over the months that we have actually been thinking about this Inquiry, and have gone onto the Internet. Does that cause anybody any embarrassment? No? Good. Thank you very much indeed. Right. I'm not often thrown, but Mr Sherborne has managed to do that very early on in this Inquiry, I hope for the last time. Mr Garnham, you're in a slightly different position to everybody else, so if it's convenient to you, then I am very happy to hear what you have to say at this stage. Thank you very much indeed for your comprehensive submissions, which, of course, take account of the ruling that I gave about a week ago.
MR GARNHAM
Sir, yes, they did.
LORD JUSTICE LEVESON
Do I gather from the way in which your statement is expressed that at least at present the basis of my ruling is sufficient for the Metropolitan Police to rely upon?
MR GARNHAM
Yes, sir.
LORD JUSTICE LEVESON
Right. Thank you. Opening submissions by MR GARNHAM
MR GARNHAM
As you know, the Metropolitan Police have more than a single interest in the work of your Inquiry. First, it was the MPS which was responsible for the investigation which led to the convictions of Mulcaire and Goodman in 2006 and about which you have already heard much from Mr Jay. Second, it is the MPS who are currently conducting further investigations into phone hacking, into alleged corruption of police officers and into computer hacking by the press, and third, sir, as the police service for London, the MPS has to maintain an effective working relationship with the press in order to communicate with the public for the purposes both of appealing for information about crime and for relaying information relevant to public protection and safety.
LORD JUSTICE LEVESON
And indeed, wearing a different hat, it's also equally important to ensure the public is able to have confidence in the criminal justice system.
MR GARNHAM
Absolutely.
LORD JUSTICE LEVESON
As it's operated in this country.
MR GARNHAM
Absolutely, sir.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
The MPS is, as a result, keen to help ensure that that relationship with the press is structured and managed in the way that will best advance the public interest. As you know, sir, in December 2005, reports were made to the MPS by members of the royal household about the possible unauthorised accessing of voicemail messages on their mobile phones. In response, SO13, a specialist operations branch of the MPS responsible for anti-terrorism, launched what was a necessarily covert criminal investigation, later to be known as Operation Carrothead(?). That operation identified Clive Goodman and Glenn Mulcaire as responsible for the conspiracy to gather private and personal data for financial gain, which has been explained to you by Mr Jay. By July of 2006, the police had obtained evidence suggesting that others were being targeted. The scale of that evidence increased concerns that both public safety and national security might be at risk, and accordingly, it was decided that the operation could no longer remain covert and Goodman and Mulcaire were arrested on 8 August 2006. They were charged, as you've heard, with conspiracy to intercept communications and unlawful interception of communications. Their premises were searched, evidence was seized and that appeared to confirm that their activities were aimed beyond members of the royal household. Following discussions with the CPS, a decision was made to charge Mulcaire with five further counts of interception beyond that relating to the royal household, and Mr Jay has given you some particulars of those additional charges. That decision reflected the strength of the evidence, the need properly to expose the criminal conduct concerned, the wish to test the existing legislation and the ability to prove the case. The result of the trial that followed has already been explained to you by Mr Jay.
LORD JUSTICE LEVESON
When you say "test the limits of the legislation", Mr Jay explained this issue about the concern that stored but listened to messages no longer fell within the legislation.
MR GARNHAM
Yes, and the five additional charges, one of the purposes behind their addition was that it was seen as a possible means of testing that very point.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
In fact, because of the pleas that were put in, the test was never actuated. It was one of the motivating factors behind the decision to add those charges.
LORD JUSTICE LEVESON
So obviously the director took the view both that there was a prima facie case and it was in the public interest to charge with those --
MR GARNHAM
By the time of the addition of those five charges, sir, yes.
LORD JUSTICE LEVESON
Yes. So would it be right to say that the view has been taken that there is an appropriate proper argument to mount --
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
-- that listening to stored messages still contravenes RIPA?
MR GARNHAM
The original advice the MPS received was to the contrary effect.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
But by the time the matter was coming on for trial at the Bailey, the view was taken that there was a proper argument to be had there, and it was the argument to which Mr Jay has adverted.
LORD JUSTICE LEVESON
Is that still the view of the police?
MR GARNHAM
The view of the police currently and in the current investigation, which I shall come to in a moment, is that the matter should proceed at its widest ambit because the advice now would appear to support that.
LORD JUSTICE LEVESON
So you don't mind whether I exercise a view as to it or not?
MR GARNHAM
No, sir. I'm not sure that it would count much if I did mind, but I don't.
LORD JUSTICE LEVESON
It won't, actually.
MR GARNHAM
I rather thought it wouldn't, sir.
LORD JUSTICE LEVESON
All right. Yes, okay.
MR GARNHAM
That investigation, the 2005 investigation, was, as I've said, conducted by the anti-terrorist branch because of the national security implications of interception of phone calls of members of the royal household. It was limited in scope at that time because of the competing operational demands on that branch, primarily from the serious and sustained threats of terrorist attacks that were extant in and after 2005. Nonetheless, it was apparent that there was reference in the Mulcaire papers to many individuals other than those identified in the criminal charge. In 2009, Assistant Commissioner John Yates was asked to establish the facts with a view to ascertaining whether any new information was available that warranted reopening the original investigation. He concluded that there was not. Sir, the MPS recognise that the conduct of its original investigation and the subsequent related decisions may be the subject of some criticism in the latter stages of this Inquiry. The previous Commissioner, Sir Paul Stephenson, resigned as a consequence of the ongoing speculation and accusations about MPS links with News International. John Yates also resigned, expressing regret "that those potentially affected by phone hacking were not dealt with appropriately". Both those officers, together with former assistant commissioners Andy Hayman and Peter Clarke were referred to the Independent Police Complaints Commission by the Metropolitan Police Authority for their role in handling the phone hacking investigation, although the IPCC concluded that the conduct of none of these officers amounted to a recordable conduct matter. It's acknowledged nonetheless that issues of legitimate concern were raised.
LORD JUSTICE LEVESON
So the public understand, "recordable conduct matter" means something that is worthy of potential disciplinary pursuit.
MR GARNHAM
Investigation in a disciplinary context, sir, yes.
LORD JUSTICE LEVESON
Yes. Just that it's a phrase that the public may not understand. Yes?
MR GARNHAM
In addition, sir, claims that Mr Yates secured a job for the daughter of former News of the World deputy editor Neil Wallace were referred to the IPCC. Mr Yates has been told by the IPCC very recently that it has found no evidence of misconduct to justify disciplinary proceedings in respect of the Amy Wallace matter, and a report to that effect will be published in due course. The MPS's director of public affairs is also currently the subject of an IPCC misconduct investigation for his hiring of Neil Wallace. On the 26th of this year, the MPS began a fresh investigation, Operation Weeting, into allegations of phone hacking at the News of the World. Unlike its predecessor, this investigation was set up in the specialist crime directorate of the MPS so as to allow the counter-terrorism command to focus on their primary objectives of protecting the UK from the threat of terrorism. Running concurrently with Operation Weeting are operations Elveden, an investigation into allegations of inappropriate payments to the police by those involved with phone hacking, and Tuleta, an investigation into alleged computer hacking carried out by elements of the media. To date, as Mr Jay rightly told you, 13 people have been arrested since Operation Weeting began investigating phone hacking, and that investigation is continuing. The work involved for the Metropolitan Police in that operation is extensive. The rebuilt News of the World computer databases alone contain some 300 million emails. As the MPS and the CPS have repeatedly indicated, there is considerable anxiety that nothing done in this Inquiry should prejudice or risk prejudicing the integrity of the MPS investigations that are currently taking place, and we are grateful, sir, for the indications you have given as to the steps you will take to guard against those risks, and we will do all we can to assist the Inquiry with its work in that regard.
LORD JUSTICE LEVESON
I'm very grateful about that, Mr Garnham. I'm very conscious of it. The timeframe, without in any sense committing the Metropolitan Police or the CPS to it, if you have to go through even a small fraction of the number of emails to which you've referred, looks uncertain, to say the least.
MR GARNHAM
Uncertain is right, sir. The matter progresses with some expedition and it's the focus of a great deal of hard work by a large number of officers.
LORD JUSTICE LEVESON
I've absolutely no doubt about that. I've taken the view that I should be extremely cautious about whatever is not in the public domain.
MR GARNHAM
Sir, yes.
LORD JUSTICE LEVESON
But what is in the public domain -- in other words, is not there because of me -- it would be rather foolish of me and probably self-defeating to ignore.
MR GARNHAM
And I couldn't attempt to dissuade you from that, sir.
LORD JUSTICE LEVESON
Yes. But the timeframe for me is, as I have made clear, to try to provide a report before the end of September next year. Whatever stage you might have reached, it's unlikely that you will then have concluded. Would that be fair?
MR GARNHAM
That would appear to be a fair estimate, sir.
LORD JUSTICE LEVESON
Yes. Because, of course, there still remains part two of the Inquiry, which actually goes into the detail but only after all police investigations and/or prosecutions, if there are any, have been concluded.
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
All right.
MR GARNHAM
Sir, we recognise, as I've said, that the Inquiry may reach conclusions that are critical of the MPS investigations and of its relationship with the media, but this is an Inquiry and not a trial, sir, and the MPS have decided that they will not adopt a defensive stance. Accordingly, it will seek to assist, not to obstruct; to self-criticise, rather than to justify; and to reveal, rather than hide. In short, sir, it stands ready to assist you in your work and to learn from any errors the Inquiry may reveal. The MPS has not been content, however, to sit back and await the outcome of your work. It's already taken a number of steps aimed at identifying deficiencies in its practice and learning from any past error. On 20 August of this year, Elizabeth Filkin, the former Parliamentary Commissioner for Standards, was appointed to examine the ethical issues arising from the relationship between the police and the media. As you will know, sir, Ms Filkin has a reputation for vigorous independence. The MPS have welcomed her review and are co-operating fully with her to ensure that she's able to carry out her terms of reference. Those terms of reference include the provision of advice to the Commissioner as to the proper purpose of the relationship between the police and the media, the steps that might be taken to improve public confidence in police and media relations, whether steps could be taken to improve the transparency of police and press relations, and what, if any, hospitality it is acceptable for the police to receive from the media or provide to them. A considerable amount of work has already been completed by Ms Filkin and her team and we understand that she hopes to be able to complete her report by Christmas. It's understood that she has already identified some areas of concern but there is also much that is healthy, positive, authorised and legitimate in the relationship between the press and the police.
LORD JUSTICE LEVESON
I'm sure it's critical -- as I understand the matter, that report will be available to me in my Inquiry long before we've concluded and therefore will become part of the material which I will be able to consider.
MR GARNHAM
Yes, sir.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
On 15 September of this year, the Commissioner of the Metropolitan Police, Bernard Hogan-Howe, announced that he'd requested the Chief Constable of Durham Police to carry out a review of Operation Weeting and that review too is continuing. Whilst awaiting the product of those reviews, the MPS has embarked on its own analysis of the issues arising from phone hacking. That analysis has led the MPS to review its policy and practices in a number of areas, and I wish, if I may, sir, to give a preliminary indication of its initial thinking.
LORD JUSTICE LEVESON
That would be very useful, thank you very much.
MR GARNHAM
We suggest, sir, the close and transparent working relationship between the police and the media is critical to ensuring both fair reporting and effective policing. Properly structured, such a relationship improves the scope, the depth and the accuracy of press reporting and enables the police better to perform their duty of protecting the public. It is, we would suggest, through healthy and open contact with the police that the media are able properly to report on the criminal justice system, the point you were making to me earlier, sir.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
It's through contact with an honest and intelligent press that the police are able to engage and inform the public, not just with a view to solving crime but also as a means of warning and protecting the public where that's necessary. Furthermore, through their own investigative work, the media are, on occasions, able to bring crime and potential crime to the attention of the press and the public. Those benefits, sir, apply to all police forces and all media outlets up and down the country and it follows that it's not just the MPS who have an interest in a proper relationship between press and police. Sir, we would suggest that a society in which there is no contact between media and police is unhealthy and potentially undemocratic. All legitimate attempts by the media to inform the public should be encouraged, and the MPS continue to support that process by working closely with the press and media on a daily basis. A healthy relationship between press and police can be mutually beneficial, but too close a relationship can, we would suggest, distort proper judgment by both parties and there are competing priorities which do not always mate towards a common outlook. For example, ensuring that criminal investigations can be conducted efficiently and effectively can conflict with the media's demand for information and stories. Balancing the need to be open and transparent with both the media and the public at large can conflict with legitimate journalistic objectives of obtaining an exclusive story to editorial deadlines. Similarly, a properly sanctioned whistle-blowing mechanism can expose wrongdoing and protect the public interest, but the misuse of such a mechanism can undermine investigations, can damage the legitimate need for the police to maintain discipline, and can distort the proper functioning of the police service. It's against those competing considerations that the MPS, like other police forces, has to decide how best to regulate its contact with the media. The MPS, sir, alone amongst the Forces in England and Wales, has a 24/7, 24 hours a day, seven days a week press bureau, which receives over 200 media calls a day. It engages with the press nationally, locally and internationally. But the Met, sir, is not a simple monolithic corporation. Its essential agent is a constable holding independent office under the Crown. Officers often work in areas where a high degree of individual discretion applies. The regulation of the relationship, therefore, has to address both the Met at a corporate level and also at the level of individual officers going about their duties. That work that's being conducted pending Ms Filkins' report has led to the identification by the Met of the following eight areas of concern: first, the ethics of exchanging information with the press. There are difficult ethical considerations when journalists learn of a potential story that touches upon a police investigation. The exchange of information designed to maintain the integrity of the police investigation can lead to short-term gains for both parties, and in many cases, will serve the immediate public interest. However, the risks and implications in the longer term for this type of exchange are obvious. It's recognised that in some circumstances this interdependency can develop into inappropriate relationships between press and police. But it seems to us, if we may say so respectfully, sir, that there remains an operational need for officers in certain limited circumstances to brief journalists on a confidential basis. The MPS accepts that guidance could be improved in this area and it is recognised that this sort of briefing should be appropriately authorised and open to scrutiny and examination by the courts retrospectively where appropriate. Second, sir, the use of police sources. There are many occasions when journalists refer to information being provided by a police source. The MPS accepts that on occasions, this has been a police officer or employee and sometimes criminal or misconduct investigations have been necessary. However, it appears to be common practice for the term to be used for many other reasons, including to enhance the apparent legitimacy of a story and to disguise the lack of a credible source. There are also examples where information has been provided, perfectly properly, which has been subsequently portrayed as originating from a police source in order to give an unjustified gloss of investigative journalism. This journalistic practice is one which we suggest the Inquiry may need to address. Third, whistle-blowing. The provisions protecting disclosure under the Public Interest Disclosure Act 1998 are well recognised as necessary and important, as is the need for general whistle-blowers to have their identities protected, but in other cases, it would be our suggestion a police source ought not to remain unnamed. Fourth, guidance about protecting private data. The MPS acknowledges its position as a custodian of confidential and private data. There needs to be clear expectations, we would suggest, for officers and staff throughout their careers in this field, and that needs to be supported by clear and readily useable guidance. A robust set of sanctions for those that choose to depart from those rules is also appropriate. The MPS's current operating framework provides some guidance. We accept it's questionable as to how helpful that guidance is at a practical working day level. Fifth, police standards of conduct and training. A police officer's code of professional standards prohibits officers knowingly making false, misleading or inaccurate statements. The code also addresses how officers are to treat confidential information. Police officers are not to disclose to the media or the public legitimate policing business other than when authorised to do so. Therefore, in the absence of any specific training, a police officer's code of conduct provides clear guidance to which officers should adhere whenever they have contact with the media or the general public. Breach of that code renders a police officer liable to disciplinary procedures or, in appropriate circumstances, to criminal charges. But we recognise, sir, that there may be a need for more than rules set out in code books. Training on media handling is presently directed to certain career pathways, and it may be that its reach and extent needs to be explored. Certainly, whilst senior detective training includes media management, that training does not focus on ethical issues underpinning those relationships, and it's recognised that insufficient training and practical guidance is provided to officers below and of different rank. Only limited exposure to media issues is provided on promotion. Sixth, gifts and hospitalities. A recent review of gifts and hospitalities received by MPS officers and staff revealed, sir, a lack of consistency of approach both to self-declaration and to recording of such gifts. Further work may be required to determine how that approach be reflected across the organisation and how a set of values and principles common to both senior and junior ranks can be devised and implemented. Seventh, post-police service employment considerations. The Home Affairs Select Committee, in its 13th report of 19 July 2011, were critical of the fact that former assistant Commissioner Andy Hayman: "... took a job with News International within two months of his resignation and less than two years after he was purportedly responsible for an investigation into employees of that company." The MPS shares that concern and will look to support any proportionate mechanism to prevent such employment for a reasonable period of time after cessation of police service. Eighth, and finally, procurement. In July 2011, the MPS mandated the use of a system called CompeteFor for all purchases between £500 and £50,000. All procurement over £50,000 is managed through central MPS procurement. That, sir, is in line with best practice and addresses some of the concerns, at least, originating from the hiring of Neil Wallace. Sir, the MPS is striving to carry out its public role to the best of its abilities and to ensure that public confidence in the police is both maintained and justified. With that aim in mind, we are committed to assisting you and your team in understanding the issues and pressures placed upon officers policing the capital, in order that workable recommendations can be implemented. We acknowledge, sir, that not all of the MPS's relationships with the press in the past have met the test of being both ethical and transparent, but the Met, sir, is committed to instituting practical and pragmatic change that recognises the legitimate roles of a free press and of a police service, both metropolitan and national, that are accountable to the highest of ethical standards in public life.
LORD JUSTICE LEVESON
Mr Garnham, thank you very much. Let's just take stock for a moment. The Metropolitan Police have engaged the services of Ms Elizabeth Filkin, as you've explained to me. That clearly would be relevant. The Durham review of Weeting doesn't immediately strike me as coming to the forefront of my concerns.
MR GARNHAM
We doubt it will in part one, sir.
LORD JUSTICE LEVESON
That's my view, too. You mention in your skeleton but you've not mentioned this afternoon the communication and advisory group for ACPO.
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
Do you know whether that's something that's likely to come my way, or should I be looking at ACPO to provide me with some evidence and some material on that subject independently?
MR GARNHAM
Sir, you may indeed want to get independent evidence from ACPO but we can provide you with that manual.
LORD JUSTICE LEVESON
Thank you very much. I'm very conscious that Mr Phillips, who I denied core participant status for module one, isn't here. Do you know whether the police authority are doing anything of their own on top of everything that ACPO are doing?
MR GARNHAM
I don't, sir, and it wouldn't be right for me to speculate whether they are.
LORD JUSTICE LEVESON
No, no, I wouldn't want you to speculate.
MR GARNHAM
And I don't know.
LORD JUSTICE LEVESON
Fair enough. All I can say is that any work that's being done I would be grateful to see. Just thinking about it aloud, it strikes me that there is a very carefully devised system for ensuring open and transparent relationships between police officers and informers.
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
It might be that the Met can learn from that mechanism as to the way in which the relationships to which you've referred can best be monitored, without in any sense undermining the very, very real importance that is to be attached to the links between the police and the press.
MR GARNHAM
Sir, it's a worthwhile thought and we will take it back and work on it.
LORD JUSTICE LEVESON
Thank you very much. Right. That's probably as far as we can go today. Do you still have the message, Mr Sherborne?
MR SHERBORNE
I do, sir, although I understand arrangements are in place to deal with it.
LORD JUSTICE LEVESON
Yes. I am going to find out about that now. Thank you. Does anybody have any other matter that they want to raise that may not be linked to the particular openings? MS PHILLIPS: Can I ask what time we're starting tomorrow?
LORD JUSTICE LEVESON
Yes, you can. 10 o'clock. I'm not sure how far we'll go tomorrow, because it's inevitable that we have to -- the witnesses who are the first set of witnesses are not professionals, in the sense that they're not engaged in the business of delivering or receiving news or regulating other organisations. They're Mr Sherborne's clients and they've had to be timetabled in a way that suited their convenience. I don't think that matters because there's plenty for everybody to do before we get on with them, and if anybody is short of things to do, then they need only have to let us know and we'll give them plenty other things to do. Thank you very much. Tomorrow morning. (4.00 pm) (The hearing adjourned until 10.00 am the following day)

Themes

Understand all the key topics and the context behind the Inquiry's findings

Journalism & society
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Regulation
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Politics
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Future of journalism
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Background & history
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Subsequent developments
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Ethics & abuses
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