Monday, 14 November 2011
LORD JUSTICE LEVESON
Good morning. I have now moved into
the formal phase of part one of in Inquiry, but before
calling upon Mr Jay to open, I believe it would be
worthwhile to summarise what has happened to date and to
identify the direction in which I now intend that we
should travel; in other words, what should happen from
now. I also need to deal with some matters of
From the very start, I made it clear -- and I now
repeat -- that I fully consider freedom of expression
and the freedom of the press to be fundamental to our
democracy, fundamental to our way of life. But that
freedom must be exercised with the rights of others in
mind. My first public utterance on 13 July of this year
included these words:
"The Inquiry must balance the desire for a robustly
free press with the rights of the individual, while, at
the same time, ensuring the critical relationships
between the press, Parliament, the government and the
police are maintained. The press provides an essential
check on all aspects of public life. That is why any
failure within the media affects all of us. At the
heart of this Inquiry, therefore, may be one simple
question: who guards the guardians?"
That theme and my fundamental beliefs have not
changed, but it is critical to bear in mind that this
part of the Inquiry requires me to take an overview of
the culture, practice and ethics of the press, including
specifically the relationship of the press with the
police and with politicians and the extent to which the
current policy and regulatory framework has failed.
Inevitably, the brush will have to be quite broad, for
it cannot descend into a detailed analysis that might
lead me to applaud one newspaper or criticise another,
applaud one editor or editorial team and criticise
Part 2 will be concerned with specific unlawful or
improper conduct within News International, other
newspaper or media organisations or those responsible
for holding personal data, and is deliberately deferred
until after the conclusion of the police investigation
and any prosecution.
How has this task been approached? First, a large
number of those involved were either invited to provide
evidence or required to do so. We are still receiving
evidence and the result may well be that some material
be called out of turn.
Second, I conducted three briefing sessions on
security of IT and phones, which was in private, but in
open session on the legal framework and on the
regulatory framework. Nobody has suggested that these
factual presentations were inaccurate, and they are on
the Inquiry website for anyone to read, if they wish.
Third, I held two days of seminars, which generated
a wide range of views, and I'm pleased to say also
considerable debate and constructive suggestion. Videos
of those seminars as well as transcripts and summaries
are also on the website. A number of questions posed
have been reduced into writing and I continue to invite
anyone who has factual material relevant to them to send
it in to the Inquiry and it will be considered.
I remain very keen to encourage journalists to speak up
if they feel that in any regard, organs of the press
have taken a wrong turn in relation to their approach to
Finally, as identified at one of the directions
hearings, I visited a number of news rooms representing
broadsheet, tabloid, mid-market and regional papers.
I went to Southampton to the Southern Daily Echo, and
I have also visited Associated Newspapers,
Trinity Mirror and News International. None of this is
part of the evidence, but I'm doing what I can to
address what are at least perceived to be the
shortcomings consequent upon my lack of experience of
the way in which different sections of the press work.
That brings me to the way in which the future must
be considered. In the margins of the seminars I made it
clear that there was absolutely no point in my making
any recommendation unless it works both for the press in
its dealings with those who might be the subject of
stories, and with the individuals involved. It must
work for the necessarily relationships between the press
and the police and the press and politicians, but most
of all, each aspect must work for the public. It must
have an ethical base to which all adhere.
I therefore encouraged editors and those in
responsible positions within the press to meet to
discuss these issues outside the hearings that I am
conducting and to bring forward ideas. These ideas must
reflect the fundamental freedoms to which I have
referred, but it must also recognise that guarding the
guardians is not an optional add-on. Neither is it good
enough if it does not take account of legitimate public
concern, not only about phone hacking but also other
unethical behaviour not justified by what is truly in
the public interest.
I still encourage the core participant media groups
and other groups that represent the media and media
interests, such as the National Union of Journalists, to
do that and to engage outside the industry with other
interested participants to see if a sensible way forward
can be devised. If it can, and it satisfies what
I perceive to be the requirement of appropriate
oversight, I'll be pleased to endorse it.
While this discussion is happening, I will press on
with the formal part of the Inquiry. Mr Jay will
shortly open this aspect of part one of the terms of
reference, followed by other core participants.
Mr Sherborne will speak after the others, although
I will ask Mr Jay if there is any other opening comment
to be made in the light of the other submissions that
I have received. I will then proceed to hear evidence,
starting with those who allege that they have been the
victims of illegal or unethical press intrusion,
including but going beyond phone hacking.
Let me say at this stage how grateful I am to all
those who responded to calls for evidence, whether
voluntarily following a request or under compulsion
pursuant to section 21 of the 2005 Act. Everyone has
put a real effort into the exercise, and in the light of
what has been said to me, I have no doubt that the same
spirit of co-operation will be forthcoming for each
aspect of the Inquiry, both from witnesses generally and
core participants in particular.
I hope that no one will assume that I am being
partisan if I particularly thank those who allege they
have been the subject of press intrusion, many of whom
doubtless wish to put their experiences behind them
rather than incur further unwelcome publicity when they
give evidence about the impact of their experiences on
them; in other words, when they clothe the seriousness
of the allegation with some detail.
I ought to add this: concern has specifically been
expressed that those who speak out might be targeted
adversely by the press as a result. I have absolutely
no wish to stifle freedom of speech and expression, but
I anticipate that monitoring will take place of press
coverage over the months to come and if it appears that
those concerns are made out, without objective
justification, it might be appropriate to draw the
conclusion that these vital rights are being abused,
which itself would provide evidence of culture, practice
and ethics which would could be relevant to my ultimate
I also recognise that there is a great deal to
applaud in our present press and I certainly do not
intend to limit my consideration to activities which
could be the subject of criticism. It is critical to
place everything in context.
Let me now deal shortly with some of the mechanics
of the hearing. I hope that everyone knows that the
proceedings will be streamed live both into the marquee
in the quad of this building and also onto the Internet.
Transcripts will be posted on the Internet daily. That
has a number of consequences.
First -- and it will be obvious from the outset --
there's no question of my assessors being present every
day or anything like every day. It simply isn't a good
use of their time. Evidence that they wish to hear will
always be available for them and the advantage of
looking at such evidence retrospectively is that they
can exercise judgment as to what they wish to read, what
they wish to hear and where it is sufficient for them
simply to have seen the statements. They have already
played a very important part: assisting the legal team,
using their expertise to suggest further lines of
Inquiry in relation to particular witnesses or counsel.
When present, assessors will sit during the hearing
alongside counsel, but absolutely no conclusion should
be drawn from the fact that one or more is present or
Similarly, as I made clear in my second ruling on
core participant status, core participants should not
consider it necessary to attend, whether by counsel or
at all, if they do not feel their presence is necessary.
If they have questions to suggest and do not perceive
the likelihood that they will want to submit that they
should question the witness of the day, as I expect to
be the norm, they also can catch up visually or by
transcript. Absence will not be considered
a discourtesy. I am very conscious of the enormous cost
of those attending this Inquiry and I do not want to add
to it unnecessarily.
The next administrative matter to mention concerns
the twin location of the hearing, here in this room or
in the large marquee, which is separated into areas for
the press and others. Both are designated as hearing
rooms. The marquee is merely an extension of this room.
I therefore expect the same decorum to be shown in the
marquee as will be evident here.
To all, therefore, I give this direction: once
you've chosen to watch the proceedings from this room
and you are in, then absent unexpected emergency, you
will be expected to remain in until a natural break in
the proceedings. If you want to move in and out,
whether to telephone or for any other reason, then the
appropriate place to watch the proceedings from is the
Having said that, as I made clear during the
directions hearings, at present I'm satisfied that the
use of live text-based communications does not interfere
with the proper conduct of this Inquiry, and I am happy
to permit the use of unobtrusive hand-held virtually
silent equipment for the purpose of simultaneously
reporting proceedings to the outside world.
Finally, I return to one further topic about which
I have previously spoken. The Prime Minister asked that
I report within 12 months and I would wish to do so
before the end of September 2012. We could, of course,
spend very much longer on these very wide-ranging terms
of reference. It has to be remembered that even after
the evidence is concluded, reporting from Inquiries can
be delayed for good reason. I emphasise that this
target remains at the forefront of my mind, and I repeat
that this means that we shall be as efficient as
possible, limiting the evidence that it is necessary to
call to the minimum rather than the most expansive.
In the main, we will sit seven days a fortnight,
generally starting 10 am, allowing for breaks for the
shorthand writers. But I am conscious of the
considerable amount of work that has to go on behind the
scenes and it may not always be possible to achieve
this, although sometimes we might do better.
For good order, I make it clear that we will not sit
on a Friday, and I mention that we will not sit on
7 December or for the early morning of 13 December, when
I have been asked to give evidence before the Justice
Select Committee, not in relation to this Inquiry but
rather arising out of my duties as chairman of the
Sentencing Council. I will try and make up lost time.
Applications of law will generally be heard before
the start of the day or after the end of the sitting
day, and notice should be given so that appropriate
preparation can be undertaken.
With those opening remarks, I will now ask Mr Jay to
open the Inquiry to me.
Opening submissions by MR JAY
As everyone knows and no doubt still remembers,
this Inquiry was set up in July this year following an
extraordinary series of revelations and events,
culminating in the demise of an iconic print title and
high profile resignations at the top of the Met police.
The immediate trigger of the setting up of this
Inquiry, the tipping point, was the revelation that
Milly Dowler's voicemail was accessed and voicemails
deleted, causing family and friends to cling to the hope
that she might still be alive.
Although the individual or individuals who deleted
Milly's voicemail messages back in 2002 might not have
realised at the time what the consequences might be in
terms of raising false hopes, public opinion was rightly
sickened by the callousness and cynicism of the
Within two days of these revelations, the
Prime Minister announced to Parliament that an Inquiry
would be set up. Seven days later came the announcement
of your appointment, and here we are today, embarking on
a key stage in the serious and important business of
discharging what, on any view, are wide-ranging and
challenging terms of reference.
This Inquiry is unprecedentedly demanding in
a number of obvious and significant respects. First,
the breadth of the terms of reference: an Inquiry into
the culture, practices and ethics of the press.
I'll attempt to analyse those concepts in a few minutes'
time, but it is obvious that these parameters could
scarcely be broader or more open-textured.
You are required to consider and, if necessary,
address a broad spectrum of behaviours and practices,
embracing no doubt the good at one end of the spectrum
to the frankly criminal at the other end, with unethical
practices somewhere in between.
Phone hacking is safely located at the spectrum end
of worst practice, since it is illegal and can never be
justified in terms of the criminal law by a claim that
the public interest is being served. To be clear, phone
hacking is almost inevitably a gross breach of ethical
standards as well, and as it happens, we are not aware
of a single example of the recent phone hacking about
which complaint has been made that can even start to be
justified on public interest grounds.
However, it should be made absolutely clear that the
evidence before this Inquiry will not be limited to the
issue of phone hacking. There are many other examples
of unethical and/or illegal practices which we will
Secondly, the scale of public expectations. It
should not be forgotten that the Inquiry is established
under statutory powers that exercises public functions
and is paid for by the taxpayer. The public is
therefore entitled to expect a return on its investment.
These expectations are all entirely reasonable and we
will endeavour to meet them all.
However, we are working within extremely tight
timescales and the subject matter is truly vast. We
will cover the ground as thoroughly as we can, but this
is not a situation where we can honestly say that no
stone will be left unturned, since if we were to adopt
that approach, we would still be here in three years'
Thirdly -- and I'm now returning to the terms of
reference -- the cart has been placed very much before
the horse. By that, I mean that in an ideal world,
which is certainly not the planet we inhabit, part two
of the Inquiry should really be taking place before part
one. The typical sequencing of public enquiries is that
the detailed forensic examination of the underlying
evidence takes place before consideration is given to
the bigger picture and the search for themes, patterns,
broken systems and cultures, but the existence of the
ongoing police investigation and the possibility of
criminal prosecutions means that a detailed forensic
examination cannot take place on a concurrent basis
without bearing in mind the public interest in the
proper conduct of the police's work.
There are two points here that I would wish to
emphasise, first so that the public fully understands
the practicalities in the light of the legal position.
This Inquiry cannot compel witnesses to answer questions
which might incriminate themselves. It is public
knowledge that the police have arrested at least 13
individuals who are therefore suspects in their
investigation, and it is possible that they will arrest
The law affords these individuals considerable
protections in line with their constitutional rights.
To repeat, individuals cannot be compelled to answer
questions within the scope of the privilege against
self-incrimination and adverse inferences cannot be
drawn if the privilege is invoked. Those reporting on
this Inquiry are asked to continue to bear these
principles in mind if any witness seeks to claim the
protection of this privilege.
The second point which I'd like to emphasise is that
this cart before the horse issue does not mean that the
Inquiry will refrain from entering areas which are also
the subject matter of the police investigation. When
I come to analyse the terms of reference, I will explain
that such a self-denying ordinance would not be the
In general terms, what we need to do in instances
where our Inquiry does overlap with the police
investigation is to ensure that we adduce an adequate
body of evidence, some of it quite general, to enable
you to provide a sufficient narrative of relevant
culture, practices and ethics.
"Sufficient narrative" is likely to be a recurring
theme as this Inquiry progresses. In one sense, the
term may be question-begging, but it is useful
nonetheless. Furthermore, there are many aspects of
culture, practices and ethics which fall well outside
the police investigation and where the Inquiry's focus
can be as detailed or as general as it chooses.
I'm still explaining why this Inquiry is
unprecedently demanding and I'm coming on to my fourth
point, and it's a fairly obvious one. We are
investigating the press root and branch, and we will
therefore be investigating an extraordinarily powerful
and articulate range of institutions which have
considerable control over the way in which these
proceedings are reported, commented on and analysed.
This power of the press may be one reason why
politicians, at least arguably, have not been overly
keen to take steps to call it into question, through
fear that by doing so the press would withdraw support
for those politicians or subject them to close personal
scrutiny. If that analysis is right -- and I was
careful to say "may" -- it might also be said that this
Inquiry should have the self-same concerns, and
conversely, the public may fear that this Inquiry might
pull its punches for the self-same reasons.
I am, however, able to nip any such concerns in the
bud for these reasons: in July, the setting up of this
Inquiry enjoyed cross party support as well as the
support of the devolved administrations. I should make
it clear that the territorial scope of this Inquiry is
not limited to England and Wales. Under section 3 of
the Constitutional Reform Act 2005, government must
respect the independence of the judiciary. Not merely
is the judiciary independent of government; it is free
from the sort of pressures which are capable of being
applied by the press on government and politicians. The
same applies to the independent bar. The free press
will therefore report the proceedings of this Inquiry as
they see fit, subject to pre-existing legal constraints,
and the Inquiry will continue to discharge its public
functions regardless of any crossfire.
But there are two further issues which may cast
a shadow over the business of this Inquiry. First, the
Inquiry's concern that journalists may be fearful of
speaking out against their employers for fear of their
jobs and careers. The Inquiry will no doubt receive
evidence of good press culture, practices and ethics,
and certainly should not assume this evidence is
unreliable, but at the same time the Inquiry needs to
hear all possible sides of the story. Those who have
witnessed wrongdoing are encouraged to summon the moral
courage to speak out. For its part, the Inquiry is
willing to consider granting protective measures for
whistleblowers with justified concerns.
Secondly, the press, both within this Inquiry room
and outside it, possess highly articulate voices in
favour of its interests. There's nothing wrong in that,
save that the Inquiry must be vigilant to ensure that
the loud voice of the press does not drown out the
voices of other interested parties.
Thus far I've set out the challenges and the
problems but I should not be interpreted as suggesting
that they are insurmountable. I should say something
about the role of counsel to the Inquiry so that it is
made explicit. We are not prosecuting counsel or tasked
with the duty of arguing any particular case or point of
view. We are entirely neutral. Insofar as we may have
opinions about a particular topic, we're going to keep
The possibility that on rare occasions we might fail
to keep to these very high standards cannot be
overlooked, but to the extent that an errant opinion is
ever expressed, that will be our opinion and not yours.
No inferences can be drawn as to what you may be
We are here to ensure that all sides of the argument
are represented and that the evidence advanced to the
Inquiry in due course is presented in a fair and
balanced manner. This is not to say that witnesses will
not be thoroughly probed as appropriate. They will be.
Additionally, we will take up lines of questioning
suggested by the core participants and explore avenues
suggested to us by your assessors, our own Internet and
other researchers or whoever.
In short, we will call and probe the evidence in
seeking out the truth. We're looking to establish both
a sufficient and balanced narrative of the culture,
practices and ethics of the press as a springboard for
helping to devise practical and workable solutions which
are proportionate to any problem that has been
identified and which are likely to enjoy the confidence
of the public.
These solutions will not necessarily have been the
solutions which the press themselves would have devised
had they been asked to devise them, but they will have
to be workable in the real world and will need to
reflect the technical realities both today and in the
immediate future, most particularly the challenges posed
by the Internet.
I've said that I will analyse the terms of
reference. You are required to inquire into the
culture, practices and ethics of the press. It may be
helpful to take those three terms together.
We are looking at practices which may be widespread
rather than isolated and sporadic, practices which may
be widespread insofar as they are bad practices, may
well flow from systems which are broken and/or from
attitudes and mores which are dysfunctional. The more
we may see patterns of behaviour and practices which are
generic and the more widespread they are, the more it
may be possible to infer the existence of broken
systems, dysfunctional attitudes and mores, and overall
the existence of a culture which tends to explain why
these problems are occurring in the first place.
In most institutions, cultural problems of this
nature will usually emanate from high up within the
organisation, but this will not always be the case.
They will not always be the product of a deliberate
policy decision made by those with power within the
organisation to make them. Sometimes the existence of
a culture derives from the operation of more subtle and
complex forces, from historical trends, from what is
condoned and not stamped upon, leading to insidious
evolution and perpetuation, from complacency leading to
arrogance and purblindness. There is clearly a range of
For the purposes of this Inquiry, it may neither be
possible nor necessary to undertake an examination of
these more subtle and complex forces. Let me make the
point in this way: if in relation to a particular press
institution, you were to reach the provisional
conclusion that a practice or a range of practices were
widespread, thematic or even endemic, it might not be
too difficult to draw the inference that this practice
or these practices stemmed from a culture which promoted
or permitted their occurrence. Yet it might not matter
whether the culture actively promoted the practice on
the one hand or merely failed to prevent the practice
occurring on the other. On either version, we have
a cultural problem. We have systems which have failed
and we have an organisational ethos which has
contributed to the existence of illegal or and/or
If one sees evidence of institutional attempts to
cover up past misdemeanours, it may be possible to draw
the inference from such evidence that these past
misdemeanours were systemic and the cover-up itself may
be a different manifestation of the same cultural
On the other hand, as you yourself have pointed out,
it is obvious that specific illegal or clearly unethical
conduct could indeed exemplify culture, practices or
ethics either in a particular newsroom or more widely
and it is an extremely important part of the picture.
It is not, however, the only evidence that may be
relevant to the background. Increased pressure on
news room with reducing staff and tight financial
constraints, the impact of 24/7 reporting and the
immediate availability of news on the Internet, the use
of casual or freelance staff and the pressure, whether
expressly thrust upon them or impliedly felt by them, to
name but a few issues that have been mentioned, may all
constitute important elements of the wider picture.
Thus far I am conscious that my analysis is in
danger of sounding somewhat abstract. It was
deliberately so because in setting out the ground rules,
I did not wish to deal with any particular factual
situations through fear of appearing to pre-judge the
In referring to the press as I have done, there is
a danger of appearing to treat a series of separate
organisations as if they were a single monolithic
intuition. There may well be different cultures in
different newspapers groups or in different sections of
the press. Even if the Inquiry were to conclude that
a culture existed in a particular newspaper, that would
not mean that everyone working within that newspaper at
the time was inevitably tarnished by it. The dangers of
stereotyping are obvious and will be avoided.
Although the Inquiry will be testing the proposition
that there may be cultural differences between tabloid,
middle market and broadsheet newspapers, it will not be
doing so in the light of any pre-conceived judgments
about their respective systems. We start from a clean
Issues may also be very different in relation to the
regional titles. There, journalists feel that they are
being tarred with the same brush as the national press,
so confidence in them is being affected. Their focus is
very much on their local communities whom they have to
face day to day and who would react very adversely, as
they sometimes do when the national press arrives, to
breaches of ethical standards.
I'm not going to attempt any further definition of
terms and I'm certainly not going to insult either you
or anyone else by explaining what the word "ethics"
means, save to this limited extent: conduct may be
unethical because it is illegal. Very often, it is
illegal because it is unethical. Conduct may also be
unethical not because it is illegal but about because it
violates an important human right or because it violates
the code of practice designed to regulate behaviour.
Finally, and more controversially, conduct may be
unethical because most right-thinking people would hold
that it was wrong, even if it was neither illegal or in
violation of a relevant human right or current code of
practice. This may well be a somewhat subjective area
but if there is a sufficient moral consensus in support
of change, the right course may well be to consider
amendments to the relevant code of practice.
In order properly to investigate culture, practices
and ethics, it may not be necessary to look into the
fine detail, because the endeavour is to seek out
systems and patterns of behaviour. In relation to phone
hacking, delving into the detail may, as we've seen,
clash with the police investigation. The approach, as
I have said before, is likely to be macroscopic rather
than microscopic. However, what level of magnification
we choose to apply in any given instance will depend on
our instinct, judgment and overall sense of the
direction the Inquiry needs to take.
For reasons of convenience, you have decided to
divide part one of the Inquiry into a number of modules.
Module one concerns itself with the relationship between
the press and the public, module two with the
relationship between the pleasant and the police, module
three with the relationship between the press and
politicians, and in module four, we will be addressing
the broader policy questions of what changes should be
made to the regulatory system in order to address the
findings of modules one to three.
No one is suggesting that these modules form
self-contained packages. Clearly they do not, and we
are dealing with a number of concentric circles. One
constant theme, though, may be this: the alleged
subterranean influences operated by the press on the
democratic process but without full democratic
In practical terms, the overlap between the modules
may mean that exceptionally, witnesses called in module
one may have to return for module three. On the other
hand, a number of module three witnesses will also be
relevant to module one. The principal focus of these
opening submissions will be module one, but I will
sketch out the likely scope and the subject matter of
modules two and three before I conclude.
As you know, many of the issues likely to inhabit
part one of this Inquiry were aired during the course of
the three seminars which took place in early October.
I will seek to pick up on some of the key themes which
emerged as I proceed in my analysis of the issues. One
point which may have struck up, though, is that we were
treated to two competing narratives.
According to the first of these -- and I advance
them in no particular order -- the press is, generally
speaking, a force for great public good. It educates,
it entertains, it holds the powerful, including
government, to account. Although the press may be
working under considerable commercial pressure, the
importance of this should not be overstated. These
pressures have always existed in one form or another.
Most journalists are decent people and the far greater
pressure is to produce the best possible story to the
highest personal and professional standards.
The public on this narrative have a real interest in
the affairs of celebrity, particularly where there is an
apparent clash between an affected public persona and
private transgression. "Hypocrisy" is the noun which is
often deployed in this context and the role of the press
is to hunt it down and to expose it. Thus, on this
analysis, private transgression becomes a matter for
legitimate public comment.
The exponents of this narrative would say that the
press is already hidebound by an oppressive series of
legal constraints which have a chilling affect on
legitimate activity. These legal constraints range from
the existing panoply of law, through Draconian libel
laws, to the manufacture of a burgeoning and oppressive
privacy law by High Court judges who are not
democratically accountable and who apply their own
highly subjective and relativistic standards. One High
Court judge receives particular opprobrium.
Further, the press complain that the system of
conditional fee agreements exploited by unscrupulous
lawyers inures to their disadvantage because the cost of
litigation is so punishingly high that often they have
no choice but to settle even defensible cases.
Finally on this narrative, the press may well accept
that activities such as phone hacking went beyond one
rogue reporter at the News of the World, although they
would be keen to exclude their own title from these
activities. Whatever the position here, the Augean
stables have already been cleaned. This happened some
time ago now, and there is no further dung to be found.
That's one narrative. The contrary narrative works
along these lines: the press in general, and the tabloid
press in particular, ruthlessly exploit unscrupulous
methods in pursuit of at story which will boost the
circulation figures of their particular title. Very
often, the story is preordained by the narrative the
journalist instinctively knows the editor will ish to
put out and the facts are therefore tailored to meet
that narrative. By the same token, the editor has an
instinctive understanding of what his or her proprietor
might want, even if there is no direct interference from
The story on this narrative will often strike
a chord with the prejudices of the reader because the
whole objective, after all, is to increase circulation
and revenues in an increasingly competitive and
unprofitable commercial environment.
Those advancing this version of press culture and
ethics would say that journalists will not shrink from
deploying underhand methods, necessarily illegal
methods, provided they believe that they can get away
with it. The power of the press and its influence over
people's lives is such that it believes itself to be
almost above the law.
Moreover, in deciding whether or not the public
interest might justify the prima facie invasion of
personal privacy, editors are entirely parti pris to the
exercise and are guilty of the self-same subjective and
relativistic approach which they condemn in High Court
Put simply, the public interest is very often
deployed as some sort of trump card. If it is too
loosely defined, it ends up with the press delving into
the affairs of those who are celebrities and those who
are not in a way which unethically penetrates a domain
which ought to remain private. The press say that they
are holding hypocritical people to account, but those
doing the holding are themselves unaccountable and
The proponents of this narrative would also point to
the recent revelations of surveillance activities
carried out by a private investigator on the
instructions of News International. These revisions
would suggest that the stables are not necessarily clean
Now, in putting forward these competing narratives,
I'm not necessarily doing justice to those who expound
either of them. To that extent it matters little,
because we'll be hearing from the relevant people once
the Inquiry begins to receive evidence and they can put
the case in their own way.
My point at this stage is to set out the parameters
of the debate and to recognise that the exponents of the
good press position and the bad press position would
appear to be quite a long way apart.
At the conclusion of this Inquiry, you may wish to
consider which of these narratives is true. Of course,
it's possible that you may decide that neither is true
because the truth lies somewhere in between. Life is
sometimes like that.
More interestingly -- and this point has been made
by some insightful commentators upon your seminars --
you may decide that both narratives are true, in the
sense that everything depends on one's perspective or
everything depends on which side of a complex,
three-dimensional polygon one happens to be viewing,
describing on any specific occasion. Nor, of course,
are we talking about scientific truth. We're talking
about something which is more elusive, namely what is or
may be a matter of opinion.
I'm going to talk about bad practices, some of which
are known in the trade as "the dark arts", but it's
right that I should start with the good. In the words
of one of the contributors to your seminars, most of the
content of the press on most days is unobjectionable and
some of it is of the highest quality. It is not for
this Inquiry to pronounce from on high on anyone's taste
on reading matter or entertainment. I recognise that
the media cater to a whole range of different world
views, that they are perfectly entitled to be
opinionated, irreverent, sceptical, credulous,
facetious, trivial, obsessive, and to encourage others
to think the same, and to express themselves in the
style appropriate to their subject matter.
But the point I'm making goes still further. One
matter which came out very strongly in your seminars was
that many journalists who write pieces in the more
popular sections of the press are able to encapsulate
often complex ideas in short, pithy, entertaining and
punchy stories which retain the interests of the reader.
The ability to do this takes as much skill as the
ability to write a good leader in a broadsheet.
Individual newspapers must cater for the tastes and
interests of their core readership. Ultimately, as some
judges in the highest courts have expressly recognised,
the press have an obligation to entertain and they need
to sell their product in order to continue to do so.
I have mentioned a range of world views.
I understand that members of the scientific community
may be providing the Inquiry with evidence along the
lines that much real harm is done by certain sections of
the press who, it is said, do not always apply the
scientific method to their reports or commentaries upon
matters of topical scientific interest. It could be
said that reporting which is not evidence-based is
inaccurate within the meaning of the editors' code.
This issue and issues like it are not outside your
terms of reference, and if relevant evidence is
forthcoming, it will be considered. How far this
evidence will take you and what, if anything, the
Inquiry might do about it may be another matter.
There is a higher constitutional point in play,
namely the importance of a free press in a mature
democracy. We simply cannot pay lip service to this
principle, even if a free press is second nature to the
public life of the United Kingdom. A free press
developed incrementally in this country over
a considerable period of time, with landmark events
en route to this destination, such as the litigation in
the 1760s involving John Wilkes and the North Briton.
But even in some European countries today the press is
not free, and elsewhere there are shining examples of
the good and egregious examples of the bad.
The importance of a free press is almost
self-evident. The press holds the powerful to account
and is therefore an important curb on potential abuse of
executive and corporate power. At its best, the press
espouses unpopular causes and gets to the bottom of
scandals which would otherwise be left uninvestigated.
It is essential in a functioning democracy that the
press be permitted to discharge these vital functions
and to that extent, it is inevitable that not everybody
will be happy with what they do all of the time.
It is easy to give some concrete examples of the
good and the cutting edge, but I'll do so nonetheless.
The phone hacking story was the result of assiduous and
tenacious reporting by The Guardian, at one stage in the
face of a critical report by the PCC.
The thalidomide scandal was brought to the forefront
of public concern by the similarly tenacious work of the
Sunday Times, who purchased court documents for a
considerable sum when the paper knew or ought to have
known that they could only be used for the purposes of
litigation between the then plaintiffs and the drug
The MPs' expenses scandal was exposed by the
Daily Telegraph, which, as is well known, paid for
a computer disk or similar electronic device in
circumstances where it might be said that the underlying
data was stolen.
I choose my words carefully, since I'm aware that
the Daily Telegraph has provided the Inquiry with
a witness statement which deals with the legality of
what they did, and one understands the issue about
whether intellectual property can, in principle, be
stolen at all.
I should add that even if one were to conclude, for
the purposes of argument, that the Daily Telegraph was
handling stolen goods -- and I'm not submitting at this
stage that this is a conclusion you should reach --
public interest arguments would always enter into the
equation here, since the CPS would not prosecute
a particular case if they assessed that it was not in
the public interest to do so.
However, in determining relevant standards, the
regulator as opposed to the criminal court will
doubtless have regard to the circumstances in which the
information in issue was obtained but will not
necessarily treat these as conclusive. That said, for
the purposes of any coherent regulatory system, the
starting point must be this: that news gathering methods
which amount to criminal conduct could not begin to be
justified without establish be an overwhelming public
interest, and even that may not be sufficient.
Another extremely cogent example of good
journalistic practice has been provided by the editor of
Sunday Times in an article he wrote this year, "Why
investigative journalism is a force for good".
Mr Witherow reminds us that in 1984, a Sunday Times
journalist, Mr Swain, used old-fashioned blagging
techniques to connect Gaddafi's terrorist paymaster with
Mr Abbasi, another Libyan-backed terrorist operating out
of Doncaster. The journalist blagged that information
from a British Telecommunications operator, having
received details of a telephone number. He then visited
Mr Abbasi, who eventually confirmed that the National
Union of Mine Workers was seeking financial support from
I summarise the story, and for reasons of time omit
some necessary detail, but what is interesting here is
that if Mr Swain's underhand measures might prima facie
have constituted an offence under the Data Protection
Act 1984 -- and that would depend on a number of
factors, not least on whether that Act was enforceable
at the relevant time -- he would surely have had a cast
iron public interest defence. If you read Mr Witherow's
article in full, it is clear that the journalist was not
acting on a wing or a prayer, but had very good ground
to suspect that the Doncaster phone number was being
used by a terrorist.
These are only four examples and there are many
more. Nor are these example confined to the broadsheet
press. The Inquiry has received a large volume of
evidence covering the good work of other sections of the
press in espousing good causes, rectifying wrongs and in
investigating abuses of power.
It is also true that in carrying out this essential
work, the press is constrained by the law, in particular
the civil law of defamation, privacy and the confines of
the Reynolds fair comment in the public interest
defence. Whether privacy in particular is an effective
safeguard is an issue we will need to address.
Much investigative journalism relies on covert
methods, if not a measure of deception. Very often, the
end product can be justified in the public interest.
Speaking more generally, what can be justified in the
public interest and how can it be justified lies at the
very epicentre of this Inquiry. I will therefore need
to examine this issue with more care at a later stage
today, but in the meantime, before turning to the issue
of bad journalism and the dark arts, I would like to
cite a paragraph or two from the Sunday Times article
I have already mentioned:
"The expose of how Scargill was seeking financial
support from Gaddafi caused an uproar and was a public
relations disaster from which the Marxist leader of the
NUM never recovered. No two investigations are ever the
same, but Swain's story bore certain hallmarks. To get
to the truth, he had to lie and deceive. He had to
access confidential information by blagging: by
pretending to be someone else and extracting the details
from the hapless victim. If he had not done so, the
story might never have appeared and the public would
have been none the wiser. In other words, the end
justified the means. That is the fine line that every
editor has to walk when judging what methods to use to
gather information. The absolute test must be that the
story is in the public interests -- that people have the
right to know because they are being deceived. It is
a subjective test, and in the end, the public and the
courts decide whether the paper has made the right call.
The journalists' code ascribes this public interest as
exposing 'a serious misdemeanour' and preventing the
public from being misled by some statement or action of
an individual or organisation. The law on data
protection also allows journalists to access private
information if it is in the public interest and this is
a key plank in any defence on significant stories. At
the Sunday Times, the role of investigative journalism
is to hold officialdom to account at whatever risk.
Yes, we bend the rules, engage in subterfuge,
impersonate people and show the 'rat cunning' that Nick
Tomalin, a great Sunday Times reporter who died for his
trade, said was essential in every successful
journalist. Without these techniques, the powerful
would be protected. We would not tolerate fishing
expeditions in the hope of finding out information."
Then Mr Witherow proceeds to discuss the
News of the World phone hacking issue.
The concept of a fishing expedition is no doubt
a useful one and can be expanded on. Using subterfuge
simply on the off chance of discovering some wrongdoing
is not, borrowing directly from phraseology used by the
Press Complaints Commission, a sufficient justification
for the use of these methods. There should be
reasonable grounds for the Inquiry, including an
evidence base for those grounds. The time for assessing
whether these reasonable grounds exist is before the
methods are used, not retrospectively.
In borrowing material from the Sunday Times,
I should not be interpreted as necessarily agreeing with
Mr Witherow. All I do say is that you may think he has
encapsulated the issue rather well.
We'll be hearing a lot more about good journalistic
practices when the press witnesses come to give their
evidence, but I'm also duty-bound to tell you something
about bad journalistic practices, about illegal and/or
unethical conduct, and at this point in my opening,
I propose to do so.
The distinction has already been drawn between means
and ends. Ultimately the Inquiry is likely to be most
interested in unlawful and/or unethical news gathering
methods, although we will not lose sight of evidence to
the effect that the article itself may be a gross breach
of privacy or an egregious distortion of the truth, even
if wholly ethical means were used to obtain the
At this stage, therefore, I'll be concentrating on
improper news-gathering methods. Here we are talking
about a range of techniques and methodologies.
Violations of privacy in some shape or form are constant
themes here and subterfuge a common theme.
We will be considering the following categories of
press misbehaviour, always accepting that in some of the
examples I will give, it may be argued by some that the
behaviour in question is in fact justified in the public
First we will be hearing evidence about a range of
electronic surveillance or intrusion, the interception
of communications, covert listening device, cinecameras
hidden in wardrobes, bugged telephones in private
apartments, cameras hidden behind two-way mirrors and
the more mundane example of the use of telephoto lenses.
Some of these will be covered in the oral evidence you
will hear, others are in the public domain. Yet others
are summarised in the evidence Mr Matthew Parris has
given to the Inquiry. He reminds us that hacking into
voicemails is just one example of illegal and/or
unethical intrusion; not electronic surveillance or
intrusion as such, but using deceptive techniques to
gain access to an electronic database.
That said, one must not lose site of the fact that
in some of the examples given the practice is
undoubtedly illegal. In others, the practice is or may
Secondly, we know of examples in the public domain
of stealing information to gain access to personal data.
These examples range from rifling through dustbins --
the patois for this is "binnology" -- to more prosaic
cases of stealing personal diaries or other forms of
hard data. I have already touched on the far less
controversial example of the Daily Telegraph's MPs'
Then we have evidence of old-fashioned, less
technologically-based modes of intrusion. Here I have
in mind reporters and photographers hidden in bushes,
paparazzi overstepping the bounds of acceptable
behaviour and some of the examples given in Peter
Burden's book "Fake Sheiks and Royal Trappings", in
particular the Bob and Sue Firth story at pages 105 to
The News of the World reporter at the centre of that
story is the same News of the World reporter who was at
the centre of Mr Mosley's privacy action against News
International, tried by Mr Justice Eady in 2008. He
also happens to be the subject but not the immediate
recipient of the famous "for Neville" email referred to,
for example, at paragraphs 412 to 416 of the report of
the Culture, Media and Sport Select Committee, dated
9 February 2009.
The recipient of the email was Mr Glenn Mulcaire.
Neville Thurlbeck's position, according to hearsay
evidence set out in the Select Committee's report, is
that he's never seen that email nor had any knowledge of
Fourthly and more controversially, the Inquiry has
evidence of agent provocateur techniques and some of
these are fully in the public domain. "Confessions of
a Fake Sheik" by Mr Mazher Mahmood, now of the
Sunday Times, has been read by the Inquiry teams and
we've also received a witness statement from him
pursuant to a section 21 notice.
It should be recorded that Mr Mahmood prides himself
in these methods and that his evidence was recently
instrumental in bringing the Pakistani spot-fixing
cricketers to justice. However, some would argue that
his methods are questionable and that there are
instances where the ends do not justify the means. We
will need to explore this with Mr Mahmood when he gives
Next we have situations where payments are made for
stories, whether to sources, witnesses or private
detectives. Module one is not directly concerned with
possible police corruption issues.
I should not be interpreted as saying that such
payments would always or even usually be objectionable.
My point at this stage is to identify the possible
issues. Human nature being as it is, many sources will
not provide information free of charge, although the
other side of the coin, human nature being as it is, is
that many sources, including those working within
government in the wider sense of the term, or the
police, are more than happy to do so.
But as regards those for whom payment is a necessary
incentive, issues arise in general terms as to whether
this form of commercial pact enhances the risk that the
information provided by the source may be untrue or
malicious, or inherently more likely to amount to
a breach of privacy.
The press may say that this situation is really no
different from that which obtains in relation to police
informants. The fact that police sources are often paid
for valuable information is a fact of life and it does
not logically lead to a lower quality of intelligence.
Furthermore, just as an experienced police officer will
instinctively know whether a source can be trusted, the
same principle applies to journalists. A police
informant's tip will need to be corroborated by other
convergent evidence, as indeed will that provided by
a journalist source. These are all questions which the
Inquiry may need to consider.
Payments to private investigators or detectives are
capable of falling into a different category. Here
I would wish to define my terms. The press, in common
with many institutions, including solicitors, use search
agencies to locate pieces of information which are in
the public domain. This practice raises no privacy
Private investigators or detectives use different
methods in order to seek out information and data which
are not in the public domain. To be clear, a private
investigator may well deploy perfectly proper standards
and as the Inquiry will hear in due course, some are
responsibly regulated. However, it would not be unfair
to comment that the very nature of the job entails
a risk that the personal privacy of the target may not
be respected, or more seriously, that breaches of the
law may be perpetrated in order to secure the
Here I am referring primarily to breaches of the
Data Protection Act and what is commonly known as
blagging, the impersonation of someone else in order to
extract personal data from an official source or an
entity such as a mobile phone company.
A specific example of this is, of course,
Operation Motorman and the work of the
Information Commissioner in relation to the activities
of a particular private investigator, Steve Whittamore.
I will cover this topic in a moment.
Aside from the question as to whether the
journalists who tasked Mr Whittamore may have been
implicated in his criminal activities -- and this is
a big question -- the Inquiry will be particularly
interested in systems in place in the individual print
titles to handle and scrutinise the payment of invoices
submitted by a private investigator.
The broader question of the use of sources raises
sensitive and emotive issues. Under the
Contempt of Court Act 1981 and article 10 of the
European Convention, journalists are entitled to protect
their sources. The public interest in favour of this
principle is both sound and obvious and relatively
What is of keen interest to this Inquiry is how
sources are paid, how their invoices are scrutinised
internally and, most importantly, the extent to which
this modus operandi of a source may be known or deduced
or ignored, by, for example, the editor, whose ultimate
responsibility it is to check the accuracy of
a particular story and to check that the means by which
the information was obtained was lawful.
I am still on my overview of improper or arguably
improper news-gathering methods and I'm coming, I think,
to my fifth category, phone hacking. One might include
the related activities of computer and email hacking,
which are also illegal, albeit under different statutory
provisions. This Inquiry has seen much less evidence of
computer and email hacking. These require a greater
degree of technological know-how and may well be harder
to detect. One would not like to speculate without
evidence how much computer and email hacking has been
I've already made the point that phone hacking is
just one form of subterfuge. Morally, it may not be
very different in quality from many others. Further,
telephonic interception is not some new phenomenon. In
the days when the mobile phone network operated on an
analogue system, it was possible to purchase radio
devices for less than £100 which enabled the operator to
listen in on all mobile phone traffic within
a particular radius. Presumably, this was precisely how
the Prince of Wales' phone was intercepted in 1989 and
private communications were recorded.
This practice was illegal under the Interception of
Communications Act 1985 without a licence from the
Secretary of State. In the sort of context I have
mentioned, it could not be justified in the public
interest. Since the late 1990s, all I would wish to say
at this stage is that it has become more difficult and
certainly more expensive to intercept digital
I will summarise the present state of the evidence
in relation to phone hacking shortly.
My last category of improper or arguably improper
news-gathering methods is a catch-all one, and here is
the concern is as much the end product published as
methods deployed. Next week, the Inquiry will be
receiving a considerable body of evidence from a range
of individuals who say that they are the victims of
unfair, oppressive and unethical press practices.
Included within this evidence are victims of phone
hacking, but at this juncture I am describing my
catch-all category. The Inquiry will be hearing from
individuals from a number of walks of life, some of whom
are celebrities in the sense in which that term is
ordinarily understood, others of whom clearly are not.
Their evidence is disparate, which may be one of its
virtues. The common themes are complaints of systematic
breaches of privacy, of conduct amounting to harassment
and of unfair, sensationalist and inaccurate reporting.
The Inquiry will need to consider whether these
complaints are substantiated and whether they constitute
evidence of a bigger picture.
I will be returning to the bigger picture towards
the end of my submissions, because this is what part one
of this Inquiry is all about. I am not, of course,
ignoring the fact that the Inquiry will need to have
a critical mass of reliable evidence before the contours
of that bigger picture may be discerned.
At this stage, I think it's worth adverting to one
aspect of the bigger picture which might already be
obvious, and it is the following: in relation to many
but not all of the allegedly improper news-gathering
methods I have been examining, I have been examining the
subject of press interest in the private lives of
individuals. Some of these individuals may be public
figures -- and I appreciate that reasonable people may
differ as to what exactly is meant by the term "public
figure" -- but others most certainly are not. Whether
there is a distinction between those who court celebrity
and those who would assiduously wish to avoid it is
something the Inquiry may wish to consider under the
overall rubric of privacy.
But the point I am making here is that the further
away one moves from the heartland of investigative
journalism, properly so-called -- this is journalism in
the public interest -- to the hinterland of a form of
journalism whose end product, some might say, is really
no more than a menage of gossip, tittle-tattle,
entertaining anecdote and prurient Inquiry, the more
difficult it may be to justify intrusive journalistic
methods and intrusive publications. Like it or not, one
cannot get away from the subject matter.
The criminal trial in the phone hacking scandal was
all about hacking into the voicemails of members of the
royal household. This was not investigative journalism
in any recognisable sense of that term. It was
a fishing expedition where the precise species of fish
could not be ascertained in advance, but where the
overall objective was clear: to uncover new stuff about
The aspiration, of course, was that the fish, once
caught, would be dished up as spicey morsels, as piquant
insights into the private lives of the royal family, and
the same principle applies to the other individuals who
featured on the original Goodman-Mulcaire indictment.
Aside from the specific case of phone hacking,
which, to be fair, no member of the press has sought to
go justify, the Inquiry will need to consider the range
of public interest justifications which are advanced for
the type of journalism I am describing. In any event,
it will need to consider whether, turning the tables
around, as it were, there is really a public imperative
in doing more to address this particular problem.
It might be argued in certain quarters that one of
the by-products of a free and uncensored press is
collateral damage. The press may say there is always
a public interest in exposing hypocrisy and that there
is a public interest in freedom of expression itself.
Part of the duty of the press is to entertain; otherwise
its readership will desert. Even if, as one editor said
at your seminars, the Hampstead liberal with his gilded
lifestyle may not be interested in this sort of fare,
that really is none of his business, and by extension,
it is none of the Inquiry's business.
I should not be interpreted as expressing any
judgment on these intractable questions, but I note that
we keep returning to the main theme of this module of
your Inquiry: what does the public interest mean and who
I turn now to the issue of the Data Protection Act
and the work of the then Information Commissioner,
Mr Richard Thomas.
Data protection legislation was first enacted in
1984 but further, more detailed provisions came into
force in 2000, following the enactment of the Data
Protection Act 1998. This was a complex piece of
legislation designed to bring domestic law into line
with EU directives.
The target of the Data Protection Act is not the
press or journalists. The primary purpose of the act is
to ensure that data controllers -- that is to say, those
who hold the personal data of others -- take sufficient
steps to protect it. Nor is the Act primarily concerned
with the criminal law.
However, under section 55 of the Data Protection
Act, it is a criminal offence, subject to a number of
listed defences, to obtain or disclose personal data or
the information contained in personal data without the
consent of the entity lawfully holding that data, namely
the data controller. This includes the activity of
blagging, the obtaining of personal information by
Hence, if Mr X were to pretend that he was a person
with a legitimate interest in obtaining personal data
from a data controller and thereby persuade an employee
of the data controller to give up that information, the
essential ingredients of the offence would be made out.
In the real world, Mr X is usually a private
investigator and the data controller concerned could be
HMRC, a driving and vehicle licensing agency, a mobile
phone company, an organ of the NHS or those responsible
for the police national computer.
Mr X may operate by deception as his preferred
technique, but there may also be a corrupt or
unscrupulous employee located within one of these
organisations prepared to give up information to Mr X
for reward or otherwise, self-evidently without the
agreement of his principal.
Mr X is prima facie guilty of an offence because he
procures the obtaining of personal data or discloses it,
on our facts, to a newspaper without the consent of the
data controller. If there is evidence that a journalist
has tasked Mr X to obtain confidential information for
him, the journalist would also be guilty of an offence,
on the basis that he is an accessory at common law or on
the footing that he has procured such information
through the agency of Mr X, knowing its provenance.
All this is subject to the defence under section 55
of the Act that -- and I quote:
"... in the particular circumstances, the obtaining,
disclosing or procuring was justified as being in the
This sets out an objective test:
"It is not the individual's belief which is
relevant. The court must be satisfied to the
appropriate standard that in the particular
circumstances the act in question was justified as being
in the public interest."
One of the reasons why I dwelt on the Gaddafi
example in 1984 is that here we see evidence of a solid
public interest justification. It was good evidence
which linked a particular telephone number with
terrorist activities. So there it was legitimate for
the journalist to blag further information out of BT,
and in the result, critical additional pieces of the
It is important to underscore the point that the
journalist was not embarking on a fishing expedition.
With the information already at his disposal, he could
be reasonably optimistic of finding gold dust.
Furthermore, the subject matter of his investigation was
serious and self-evidently of public concern.
The issue of criminal offences under the Data
Protection Act is unlikely to excite much public
interest, still less, revulsion. The topic is somewhat
recherche in nature. The Data Protection Act as a whole
is a difficult statute to grasp and the whole issue may
be more to the taste of an intellectual prospect lawyer
than the ordinary member of the public.
However, the issue is an immensely important one
because all of us entrust our personal data, which
includes confidential information, to data controllers,
and none of us would wish to these those confidences
abused. This topic is only an arid one until it hits
Hence, the work of the Information Commissioner is
important and this Inquiry needs to examine what
inferences and lessons may be drawn from
LORD JUSTICE LEVESON
Mr Jay, I think that's probably
a convenient moment, before we start on that exercise.
The shorthand writer has been working very hard for an
hour and a quarter and it's about time she had a break,
so I'll rise for just a few minutes.
(A short break)
Operation Motorman. The story, in a nutshell, is
as follows, and here I am summarising a number of
sources: the Information Commissioner's two reports,
"what price privacy?" and "What price privacy now?", the
detailed evidence Mr Thomas has given to the Inquiry and
which we will hear reasonably shortly, chapter 7 of
Nick Davies' book, "Flat Earth News", the chapter
entitled "The Dark Arts", and other online materials.
Essentially, it is clear that the
Information Commissioner's office had long suspected the
existence of an organised trade in confidential personal
information, its suspicion's being confirmed when, in
late November 2002, the ICO attended a search under
warrant of the premises of John Boyall, a Surrey-based
private detective, which search was conducted by the
Devon & Cornwall Police.
The raid concerned the suspected misuse of data from
the police national computer by former and serving
police officers. Documents seized during the course of
the raid were then linked to vehicle checks carried out
within the DVLA by two officials.
In the words of the Information Commissioner's first
published report, corruption was the stark conclusion
and two investigations were subsequently launched: The
Information Commission's officers' Operation Motorman
into data protection offences and a police investigation
into possible corruption.
On 8 March 2003, search warrants obtained by the ICO
led the investigation to an address in New Milton,
Hampshire, the premises of Steve Whittamore, another
private detective, and to two men who worked for him.
Documentation seized from Whittamore's premises showed
that he worked with a number of associated who were able
to supply him with data, most of which was unlawfully
obtained from a number of sources, including BT
accounts, other telephone companies, DVLA records,
credit card statements, bank statements and the police
I will deal with the scale of this documentation in
a moment.Whittamore was in some sort of partnership or
similar relationship with Boyall. Together they
appeared to have a network of corrupt officials who, for
a consideration, supplied specialist information.
Central amongst these was Paul Marshall,
a communications officer at Tooting police station, who
retrieved information from ex-directory phone numbers
and vehicle registration details to criminal records.
This afternoon was handed to Whittamore and Boyall
by an intermediary, a retired policeman called Allen
King, and in February 2004, the CPS charged all four men
with conspiracy offences. In due course, all four men
pleaded guilty. The sentence in each case was
a conditional discharge.
It would be fair to say that the
then-Information Commissioner, Mr Thomas, was somewhat
frustrated by this outcome. He will deal with this in
detail when giving his evidence.
This Inquiry is not in fact concerned with the
conduct or fate of these four individuals. What is of
interest to this Inquiry is the possible involvement of
the press in procuring and then receiving this
In the words of the Information Commissioner, when
dealing with the documentation seized during the course
of the March 2003 raid:
"... it was the wealth of detail which was to prove
so valuable to our knowledge of the illegal market in
personal information: ledgers, workbooks and invoices
detailing who had requested the information, precisely
what information they were given, how much they were
charged and how much was paid to associates who actually
obtained the information."
It should be noted that the client, the person who
had requested the information, was not always
a journalist, and this Inquiry is only concerned with
the clients who were. When the seized information was
analysed, the following picture emerged.
In the previous three years alone, 305 different
journalists had asked Steve Whittamore for a total of
13,343 differently items of information. These 305
journalists worked for a total for 21 newspapers and 11
magazines, although some journalists worked for more
than one publication.
A fuller breakdown of the 305 breakdown appears in
tabular form in Mr Thomas' second report. Out of the
transactions positively identified, 952 were attributed
to the Daily Mail, with 58 different journalists
involved. We will hear more about this in evidence.
But the Sunday people came next in the list, with 802
transactions and 50 journalists, then the Daily Mirror
with 802 transactions and 45 journalists, the Mail on
Sunday with 681 transactions and 33 journalists, and the
News of the World with 228 transactions and 23
journalists. I do not burden my opening submissions by
reading out all of the different newspapers.
Toward the bottom of the list, we can see the
Sunday Times and the Times newspapers, whose
transactions feature in single figures. The Guardian,
the Independent and the Financial Times are not on the
The 13,343 separate transactions were then analysed
by the Information Commissioner's office. It found that
1,998 of them were too vague to allow any definite
conclusion. Of the remainder -- and this is information
obtained pursuant to an FOI request -- 5,025 were
assessed to constitute clear breaches of the Data
Protection Act and 6,330 probable breaches of the Act.
These assessments were reached having regard to the
nature of the information and to the price paid for it.
The price paid for 3,291 pieces of information was
over £164,000. The identities of the journalists
involved have not been vouchsafed by the
Information Commissioner's office. In answer to
a Freedom of Information Act request, their identities
were cyphered. However, from the information provided,
it is clear that a number of journalists made prolific
numbers of illegal or probably illegal requests. The
most prolific runs to 679. One journalists commissioned
some £26,000 worth of transactions.
Criminal proceedings were never taken against any of
the journalists. The precise reasons for this will need
to be examined carefully with Mr Thomas, although one
reason he gives is that he could not be completely
confident that the public interest defence would not
In this respect, two matters are worthy of note.
First, none of the four conspirators in their criminal
proceedings sought to rely on any public interest
defence. Presumably they took the view, on advice, that
such a defence would not run. As Mr Thomas explains in
the context of their cases, it is not surprising that
this view was taken, given that this activity was in the
nature of a fishing expedition and the public interest
would need to be identified before the information was
obtained, disclosed or procured, not afterwards.
Secondly, if Mr Thomas is right about the public
interest defence in relation to the private
investigators, it is not immediately obvious why an
equivalent reasoning process does not apply to the
journalists. It was they, after all, who commissioned
the individual transactions. In any event, the burden
would have been on the journalist to raise the defence
and its strength could then have been separately
It might be said in relation to the journalists that
it could not necessarily be proven according to the
criminal standard that they knew that they were
obtaining information in breach of the Data Protection
Act. Here is what Mr Thomas has to say about that
possibility in paragraph 5.3 of his first report:
"This was not just an isolated business operating
occasionally outside the law, but one dedicated to its
systematic and lucrative flouting. Nor could its
customers escape censure. Some of the information
contained, such as PNC checks, ex-directory telephone
numbers and details of frequently dialled numbers,
cannot normally be obtained by such businesses by lawful
means. Others, such as personal addresses, can be
obtained lawfully only by the old foot-slogging means,
such as personal checks to the full electoral register.
Prices charged for some pieces of information raise
questions about their provenance. Either the price was
too low for information obtained lawfully, as in the
case of personal addresses, or it was high enough to
indicate criminal activity, as in criminal records
In due course, I will be inviting Mr Thomas to
expand on this particular paragraph.
Apart from the forensic issues which I had
foreshadowed, there are two further issues I should
mention at this stage. It may or may not be possible to
get to the bottom of these, but they will certainly be
First, there is evidence from a former employee of
the ICO which suggests that the extent of wrongdoing
went significantly further than the 13,343 transactions
I have mentioned and that Mr Thomas and his deputy took
a specific policy decision not to bring proceedings
against individual journalists because they were afraid
of the power they wielded.
Secondly, the Daily Mail has given evidence to the
Inquiry which certainly suggests that the information
its journalists may have procured was entirely innocuous
information which did not evidence the commission of any
The Information Commissioner's two reports, both
published in 2006, did not attract a lot of press
interest at the time. I will not speculate as to the
possible reasons for this.
Mr Thomas' first witness statement to the Inquiry
draws to your attention some interests exchanges he had
with the PCC. He asked the PCC to fire a clear warning
shot to the press about the risks of breaking the law.
In due course, we will hear about this and the PCC's
reaction to this request.
One of Mr Thomas' recommendations was that
section 55 of the Data Protection Act should be amended
so as to increase the maximum penalty for this offence
from a fine to a two-year period of imprisonment for
a conviction on indictment. Mr Thomas' evidence to the
Inquiry is very illuminating on this issue. To cut
a long story short, section 77 of the Criminal Justice
and Immigration Act 2008 was initially to contain
a provision which reflected Mr Thomas' recommendation.
The quid pro quo was a strengthening of the public
interest defence, see section 78, introducing a new
provision into section 55 of the Data Protection Act,
which would have changed the test from being objective
to subjective. However, a late intervention by the then
Prime Minister led, from Mr Thomas' account, to
a classic legislative compromise. These legislations
entered the statute book but did not have immediate
force of law. A separate statutory instrument would be
needed to bring them into effect and none has been laid
before Parliament to date.
Mr Thomas' evidence contains in microcosm a number
of the key issues which form the subject matter of part
one of this Inquiry. I have in mind the extent of press
misconduct in the possible existence of a culture, the
press response to the Information Commissioner's
response and then the political response to his
recommendations. That said, one appreciates that the
Whittamore raid took place in March 2003, and some might
say that all of this is water under the bridge.
I come now to the issue of phone hacking, in
particular the unlawful access of mobile phone
voicemails. My endeavour here is not to undertake
a close forensic examination of all the evidence so that
every blood vessel and sinew is exposed. I will do that
when we reach part two, which certainly will not be
Instead, I propose to attempt a somewhat less
punctilious but perhaps more difficult exercise: to
provide you with an overview with an over-arching
synthesis which might enable the Inquiry to assess the
possible breadth of this illegal activity, if not its
depth. If that exercise is successfully conducted, then
insights into -- and possible conclusions about -- any
relevant culture or cultures might be capable of being
My point of departure is inevitably the
News of the World and the Goodman-Mulcaire proceedings
which culminated in guilty pleas and a sentencing
hearing before Mr Justice Gross, as he then was,
in January 2007.
Mr Clive Goodman, as is extremely well-known, was
the royal editor of the News of the World, and
Mr Glenn Mulcaire was a private investigator who
probably had been working for the paper in some shape or
form since 1997, first as a research consultant employed
by a private company, and then, after 2001, through his
The first formal contract between Mulcaire's company
and the News of the World covers the annual period
beginning on 1 September 2001. Under it, he received
weekly remuneration at an annualised rate of
£92,000 per annum.
When his business premises were raided by the
police, the investigating officers found a contract
between the News of the World and an entity called Nine
Consultancy Ltd, which was Mulcaire's company at that
time, covering the 12-month period beginning on 1 July
2005. Under this contract, Mulcaire undertook to carry
out a research and information service, in return for
which he would be paid £104,988. The payment of this
amount is shown on News of the World's books.
One obvious question which arises is this: what was
the exact nature of the services Mulcaire was contracted
to provide? It was accepted at the criminal trial that
the £104,000 was paid in exchange for the delivery of
legitimate services and that illegitimate activities
were covered by separate cash payments, but evidence has
come to light which suggests differently.
The criminal proceedings were limited to an
eight-month period, November 2005 to June 2006. Under
counts 1 to 15 of the indictment, it was alleged that
Goodman and Mulcaire conspired to commit breaches of
section 1 of the Regulatory of Investigatory Powers Act
2000, RIPA, by working together to gain access to the
voicemail messages of three members of the royal
household. The purpose of gaining access to the
messages was to obtain confidential information with
a view to it being published in the News of the World
In order to make good this indictment, the
prosecution had to prove a common purpose or scheme
between the two men. It would have been sufficient for
the prosecution to have proved that it was only Mulcaire
to actually gained access to voicemails pursuant to this
scheme, although there was evidence that Goodman made
some of the calls into the system.
Furthermore, for the purposes of a conspiracy
allegation, the prosecution did not have to prove that
the fruits of this activity ever found their way into
the News of the World in the form of stories, though
here again there was some evidence that they did.
Under counts 16 to 20 of the indictment, it was
alleged that Mulcaire alone accessed the voicemails of
five other individuals in breach of section 1 of RIPA.
It was not alleged that he did so pursuant to any
arrangement with Goodman. The prosecution did not seek
to prove to the criminal standard that Mulcaire was
working with others within News International.
I will need to examine counts 16 to 60 with
particular care for obvious reasons, but at this stage
I note that the five individuals I mentioned in the
context of these counts, although I haven't yet named
them, would not have been of interest to the royal
editor. This must have been obvious to
News International at all material times, by which
I mean anyone within the company equipped with a basic
familiarity with these facts.
I will turn to counts 1 to 15 and to Mulcaire's
modus operandi. I can simplify it: in order to gain
access to voicemail messages remotely -- in other words,
from a telephone other than the mobile phone paired with
its voicemail -- typically you need to have possession
of a unique retrieval number and a pin number. I say
"typically", because arrangements differ slightly across
the mobile networks. If I gain access to the voicemail
of my phone by telephoning in from a landline or
wherever, using a unique retrieval number and a pin
number, then so can anyone else.
Finding outlet the pin number was not that
straightforward, and here Mulcaire had to use underhand
methods. His practice was to telephone the customer
services department of a mobile phone provider and to
persuade the company to reset the pin to its default
setting. In order to do this, he needed to use
a company password in order to convince company services
that he was acting legitimately.
It is more than a reasonable inference that Mulcaire
had some sort of illicit pathway to two key pieces of
information: first, the unique retrieval numbers paired
with a particular mobile phone; secondly, the company
passwords which would give him credibility when he spoke
to customer services. These passwords were often
changed for security purposes, so Mulcaire's channels of
information must have been ongoing.
It is not entirely clear how Mulcaire had access to
the unique retrieval numbers, or, as it happens, to
other confidential mobile phone data. I have mentioned
illicit pathways. These include the possibility of both
blagging and corruption.
In relation to counts 1 to 15, Mulcaire used
landlines located within his office and another
telephone installed in some way in a cash point machine.
Goodman made some calls from his home address, and more
pertinently for our purposes, from a fixed link
telephone installed at the offices of News International
When Mulcaire's premises were raided, the police
found a number of notebooks containing details of the
scheme of interception. These notebooks were of
particular interest to the Inquiry. In relation to
counts 1 to 15, their contents were explained by
prosecuting counsel to Mr Justice Gross.
The information varied from page to page, but very
often, one could see the name of the individual member
of the royal household targeted, his or her mobile phone
number, his or her unique retrieval number, the pin
number, which had been set to default, and finally the
number of the network service provider.
The notebook evidence by itself did not prove that
the voicemails had been accessed, but in the case of
counts 1 to 15, there was other evidence which
established that fact, because the police had analysed
call data from the various phones I had referred to and
had made the link.
On many but not all of the notebook pages, there is
to be seen one extra piece of evidence, namely at the
top left-hand corner of the page, a first name. In
relation to counts 1 to 15, the prosecution opened the
case to Mr Justice Gross on the basis that the first
name was Clive, which was Goodman's given name. This
provided further evidence of a conspiracy.
Investigating officers in Operation Weeting carried
out further analyses of the Mulcaire notebook. This has
proven to be a painstaking and challenging exercise. At
this stage, I can give some further information about
counts 1 to 15, since not all of these left hand corner
names were Clive.
In relation to one of the members of the royal
household who was the target in counts 1 to 15, the
corner names were "Clive" or "Private" or someone I'm
going to called "A". You have ruled that A should be
cyphered in these proceedings, although I have been told
his or her identity. The revelation of A's identity is
not necessary for part one purposes and might cause
prejudice to the police investigation.
One possible inference to be drawn is that A was
working with or for Goodman and that he or she may have
instructed Mulcaire to carry out a particular voicemail
interception operation. It might be argued that A could
have been acting independently of Goodman, but that
would not make much sense since we know that Goodman was
the royal editor and we also know that targets 1 to 15
were members of the royal household.
I have mentioned the consultancy agreement between
Mulcaire's company and News International. There was
also evidence before Mr Justice Gross that Mulcaire
received cash payments in the aggregate sum of £12,300
between November 2005 and August 2006. These payments
were made by Goodman, although he made corresponding
expenses claims on the company. In relation to these
claims, the identity of the source, Mulcaire, was
protected, since h was described in News International's
books as Alexander.
As prosecuting counsel explained to
Mr Justice Gross, the payment records showed that there
were payments to Alexander in relation to Fergie, SAS,
Will, Harry and Chelsy, Harry, Harry, Wills, Wills.
This provides some indication of the sort of information
that was being provided.
We need to branch out into counts 16 to 20.
Count 16 concerned Mr Max Clifford, the well-known
publicity consultant. His clients are well outside
Goodman's bailiwick, the affairs of the royal family.
Count 17 concerned Mr Skylet Andrew, the well-known
management and public relations consultant with a client
basis including, most notably, professional footballers.
Count 18 concerned Mr Gordon Taylor, the chief
executive of the Professional Footballers' Association.
Count 19 concerned Mr Simon Hughes MP, who probably
needs no introduction.
The same applies to the subject matter of count 20,
Ms Elle McPherson.
From my understanding of the criminal proceedings
culminating in the hearing before Mr Justice Gross, the
prosecution did not seek to deploy Mulcaire's notebook
in an attempt to link Mulcaire with any particular
employee within News of the World. Strictly speaking,
there was absolutely no need to do so before
Mr Justice Gross, because only Mulcaire's name was on
the indictment in relation to counts 16 to 20 and there
was therefore no purpose in bringing in other employees
of the company.
However, it is noteworthy that Mr Justice Gross
himself was alive to the practical realities. At
page 68H of the transcript of those proceedings, he
"The picture painted by that paragraph [and here he
was referring to a paragraph in the Goodman pre-sentence
report], certainly read together with Mr Mulcaire's
pre-sentence report, although I know that they are
separate documents -- but if you look at the picture
together, there is a climate in which such activities
are or might become commonplace, and that I regard as
a feature which I must consider, so I give notice of
Here, Mr Justice Gross was referring to the
possibility of giving a deterrent sentence.
Interestingly, in mitigating his client's case on
his behalf, defence counsel for Goodman said this:
"Mr Goodman has lived his life in a world where --
and I say this with some trepidation -- ethical lines
are not always clearly defined or at least observed."
Transcript, page 70, letter E.
In his sentencing remarks, Mr Justice Gross said
"As to counts 16 to 20, you have not dealt with
Goodman but with others at News International. You had
not been paid anything because no stories had resulted."
Transcript, page 179, letter H.
In relation to non-payment, this is what
Mr Justice Gross had been told. Whether it was true is
debatable. As it was clearly understood by
Mr Justice Gross that there were almost certainly other
anonymous co-conspirators, if I can put it in those
terms, perhaps that is hardly surprising.
Back in 2006 and 2007, the prosecution did not seek
to bring these co-conspirators within the scope of its
proceedings. Perhaps they felt that the evidence was
insufficient to prove the case to the criminal standard.
Perhaps they felt that the overriding imperative was to
close this operation down in such a way that there would
not be a repeat. Perhaps there are other plausible
Addressing the issue neutrally, it should be
emphasised that the criminal standard of proof is a high
one. Juries are directed that they must not find
a defendant guilty unless they are sure of guilt.
Nothing less than that will do.
It remains to be determined how you should approach
the standard of proof in relation to any findings you
make in your report, but in written submissions we
placed before you on 4 October, it was suggested in line
with standard practice in this area that insofar as you
should apply a standard of proof to determinations of
fact under the 2005 Act, the civil standard of the
balance of probabilities should govern.
It is not our purpose under part one to identify the
other individuals within News International who were or
might have tasked Mulcaire to hack into voicemails.
However, it does need to be established that they
existed, and we can do that with reference to a range of
First, there is evidence which entered the public
domain after the criminal trial. For example, according
to the report of the Culture, Media and Sports Select
Committee published in February 2010, on 4 February
2005, Mulcaire, using the pseudonym Paul Williams, and
Greg Miskiw, the then assistant news editor of the
News of the World, signed a contract which gave Mulcaire
exclusive rights in relation to the information or
pictures bearing on the private life of Gordon Taylor in
return for the News of the World agreeing to pay
Mulcaire at least £7,000.
This document does not, of course, prove that
Mulcaire would need to be accessing voicemails in order
to obtain the information in question, still less that
Mr Miskiw knew that. We have a note to count 17 that
Mr Mulcaire did access Gordon Taylor's voicemail. This
guilty plea related to the period February 2005 to June
2006, although in the subsequent civil proceedings, the
period alleged was January 2005 to May 2006.
According to the same Select Committee report, on
29 June 2005, a reporter of the News of the World sent
an email to Mr Mulcaire which opened with the words:
"This is a transcript for Neville". According to
paragraph 412 of the Select Committee's report, there
followed a transcription of 35 voicemail messages. In
13 cases, the recipient of the message was GT, Gordon
Taylor, and in 17 cases, Joe Armstrong.
In June 2005, there was only one Neville on
News International's staff at the time, namely the chief
reporter, Neville Thurlbeck. I have already made it
clear that he has denied any knowledge of the email or
the associated transcript.
Our second point is that in the context of counts 16
to 20, the police's analysis of the Mulcaire notebook --
and again, it is an analysis carried out in the context
of Operation Weeting -- is that the corner names in Max
Clifford's case were either "A" or "Private" or "A
"A" is a cypher and I should make it clear that it
is the same "A" who I have mentioned in the context of
counts 1 to 15. In Skylet Andrew's case, the corner
name was "I". In Gordon Taylor's case, the corner name
was "A". In Simon Hughes' case, the corner names were
A, B and C. There was also one illegible corner name.
In Elle McPherson's case, the corner names were "B" and
So we have a range of corner names. I know the
names in each case, but obviously do not know anything
about the corner name "private" or its significance. We
only have the first name in each of the cases but they
happen to tie up with the first names of employees of
Thirdly, we have evidence emerging from the civil
proceedings which are due to come to trial in the
Chancery Division at the end of January 2012.
Mr Sherborne will no doubt be telling you more about
those proceedings. The claimants in the civil
proceedings are not limited to the targets of counts 16
to 20 on the original Mulcaire indictment. Indeed, some
of these individuals have not brought civil claims.
We'll be hearing from some of the civil claimants next
The claimants' developed case in the civil
proceedings is that the system operated within
News of the World was essentially a conspiracy, whereby
Mulcaire and employees of that organisation would work
together to access voicemails for the purposes of
excavating pieces of information which could then form
the subject matter of stories in the paper.
My fourth point is that News International had
provided the Inquiry team with a list of the admissions
they have made in those civil proceedings where
proceedings have been issued. I will deal with those
admissions in the following matter: putting to one side
the Siena Miller case for one moment, News international
have made admissions in about a dozen civil claims along
the lines that Glenn Mulcaire had gained access to
voicemails. The most prolific is probably Skylet
Andrew's case where there were 14 successful attempts
and 19 failed attempts. In some of these claims,
News International has also admitted that use was made
of confidential information obtained by publishing
We have noted in relation to these admissions that
News International has accepted vicarious liability for
the acts of Mulcaire, not for the acts of those within
their organisation who tasked or commissioned him, but
admissions are usually made on a minimalist basis.
I deal separately with Sienna Miller's claim. This
is my fifth point. In her re-amended particulars of
claim dated 11 April 2001, Ms Miller alleged
a systematic invasion of her privacy by a series of
voicemail interceptions in 2005 and 2006, and an
equivalent campaign of harassment for over 12 months.
She also alleged that between July 2005 and July
2006, a number of articles about her were published in
the News of the World and that it should be inferred
that some or all of the private information contained in
these articles were the products of News International's
unlawful activities. Finally, she alleged that
in September 2008 her email account was hacked into
using the same password as her mobile phone password and
the private messages were accessed.
On 12 May 2011, News International's leading
counsel, in proceedings before Mr Justice Vos which were
transcribed, admitted all the causes of action pleaded
in the re-amended particulars of claim. There was
subsequently a statement in open court when Sienna
Miller's claim was settled.
The upshot in legal terms is that News International
thereby admitted those facts which were both necessary
and sufficient to found each individual cause of action
set out in the pleadings.
Paragraph 31 of the re-amended particulars of claim,
which alleged by way of an alternative case a common
design and/or the counseling and procuring of voicemail
hacking by journalists at News International was also
If there is a dispute about this, we need look no
further than the transcript of the proceedings before
Mr Justice Vos on 12 May 2011, page 3, lines 15 to 16,
when Mr Silverleaf, Queen's Counsel, accepted all the
pleaded points of claim. The significance of this is in
the Sienna Miller litigation, News International went
further than in their minimalist admissions elsewhere.
Sixthly, reference should be made to Mr Jude Law's
claims against the Sun, which is not, from my
understanding, one of the claims due to be heard
next January. Mr Law alleges that his phone was hacked
by the Sun, which is part of the News International
portfolio of print titles. Part of the evidential
matrix in support of his case is a corner name in the
Mulcaire notebook which simply states "the Sun" without
specifying the individual working there.
There's also documentary evidence which we have seen
of another corner name relating to the Mirror.
Seventhly, I can say more about Gordon Taylor's
case. He brought civil proceedings against
News International and Mulcaire on the back of the
criminal trial. Indeed, he was the very first to do so.
His claim was breach of confidence, misuse of private
information and invasion of privacy. He did not allege
the system that was subsequently to become the basis of
pleading the civil claims.
News International initially denied these claims.
Mr Taylor's lawyers then applied the third-party
disclosure against the Metropolitan Police, and secured
access to various documentation including the February
2005 contract and the "for Neville" email. Mr Taylor
amended his pleadings to refer to this material.
It is clear from documents recently disclosed and
publicised by the Culture, Media and Sport Select
Committee that these revelations, which emerged
internally in 2008, prompted News International to
obtain advice from senior leading counsel as to how to
proceed in the litigation.
Mr Michael Silverleaf, Queen's Counsel, advised in
writing on 3 June 2008. Mr Silverleaf's opinion is in
the public domain. Apart from the documentation I have
already mentioned, he referred to the existence of
a draft article, which may have been based on the
voicemail transcript. Mr Silverleaf noted, however,
that one News International employee, whose name has
been anonymised, disputed that fact.
Mr Silverleaf drew certain inferences from the
disclosed material which led him to conclude that at
least three named individuals within News International,
and here I quote:
"... appear to have been intimately involved in
Mr Mulcaire's illegal researching into Mr Taylor's
It's not necessary for my purposes to comment on
those inferences, but I should cite three passages from
Mr Silverleaf's opinion. First, and I quote:
"There is no public interest in its disclosure ..."
Here, he is referring to the personal information
relating to Mr Taylor. I continue:
"... which could possible justify the use of
unlawful means to obtain information about it."
"In the light of these facts, it seems to me, as it
seems to both my instructing solicitor and to junior
counsel, that NGN's prospects of avoiding liability for
the claims of breach of confidence and invasion of
privacy, bearing in mind Mr Taylor, are slim to the
extent of being non-existent. There is overwhelming
evidence of the involvement of senior NGN journalists in
illegal Inquiries into --"
Then there are some words redacted.
"In addition, there is substantial surrounding
material about the extent of NGN's journalists' attempts
to obtain access to information illegally in relation to
Here, Mr Silverleaf is referring to the
Information Commissioner's reports.
"In the light of these facts, there is a powerful
case that there is or was a culture of illegal
information access used at NGN in order to procure
stories for publication. Not only does this mean that
NGN is virtually certain to be held liable to
Mr Taylor -- to have this paraded at a public trial
would, I imagine, be extremely damaging to NGN's public
Now, my third citation:
"I should at this point mention that when
Mr Mulcaire was sentenced for the offences noted above,
it seems to have been accepted by the prosecution and
the court that his contract with NGN to provide research
services was for legitimate activities and
a confiscation order was made only in relation to
additional cash payments relating to members of the
royal household. The recently disclosed information
seems to throw that acceptance into considerable doubt.
If the trial proceeds, there seems to be little doubt
that Mr Taylor's case will be advanced on the basis that
Mr Mulcaire was specifically employed by NGN to engage
in illegal information-gathering to provide the basis
for stories to appear in NGN's newspapers."
These paragraphs from counsel's opinion, trenchantly
worded, speak for themselves. I'll be returning to
Mr Silverleaf's point that Mulcaire was not providing
research services for legitimate activities.
Mr Silverleaf also advised on quantum. His advice
was written shortly before Mr Justice Eady's judgment in
the Max Mosley case, where the claimant received £60,000
for a breach of privacy claim but failed in his attempt
to recover exemplary damages. Accordingly,
Mr Silverleaf had little to go on as regards previous
authority. He did, however, advise that he believed
that Mr Taylor's damages would be enhanced by various
aggravating features. His overall conclusion was that
the court might award a sum at any level from £25,000 to
£250,000 or possibly even slightly more, although he
considered that extremely unlikely. Here Mr Silverleaf
was giving out limits, not realistic parameters. His
best guess was that the bracket was £100,000 to
News International entered into settlement
negotiations with Mr Taylor's advisers in the light of
his deeply pessimistic advice. News International's
payout to Mr Taylor was the sum of £700,000, £425,000 of
which was attributed to damages and the balance to legal
costs. The settlement agreement contained
a confidentiality clause, which is not unusual in this
type of case. This is a big number, and well in excess
of Mr Silverleaf's upper bracket.
There are a number of questions arising out of this
sequence of events which have an obvious bearing on the
issue of culture. One issue may be the extent to which
the most senior executors of News International knew of
the Silverleaf opinion and the settlement negotiations.
Some insight into this issue is provided by documents
placed into the public domain by the Select Committee
and by recent evidence given to that committee, but the
extent to which the Inquiry needs to get to the bottom
of this issue in part one is debatable.
What may be of more interest at this stage is the
window this vignette might give us into the culture of
this organisation. News International was consistently
running the public line that Goodman was a rogue
reporter. It did so from June 2008 until fairly
recently. This gives rise to obvious questions about
the culture of the organisation as to how far this went
up. Was there a culture of denial or, even worse,
cover-up? Was Mr Taylor paid over the odds to keep
In relation to Mr Silverleaf's opinion, there are
only two logical possibilities: either its contents were
communicated to those at a high level in the
organisation, in which case certain inferences may be
drawn, or a decision was taken lower down, if I may put
it in this way, not to communicate its contents to those
at a high level in the organisation, in which case
different inferences may be drawn. In either
hypothesis, we have insight into the culture of
News International at the time.
Eighthly, I turn to the issue of the Goodman
Mulcaire settlements. Once they had served their prison
terms, each brought proceedings for unfair dismissal in
the employment tribunal. It was Goodman's case in part
that senior executives in News International well knew
what he was doing and condoned it. Mr Goodman was
questioned about this in internal disciplinary
proceedings and referred to emails which he believed
would prove his case. He sought the disclosure of these
emails but they were never forthcoming,
News International would say because they do not exist.
At all events, News International took advice about
the fairness of their dismissal and was told that the
statutory dismissal process had not been correctly
followed. Settlement negotiations then took place and
the parties came to terms at a figure of £140,000
inclusive of legal costs. Again, there was
a confidentiality stipulation.
Mulcaire, too brought proceedings in the employment
tribunal. The issues in his case were the same, but the
settlement figure was more modest, £73,000.
Goodman's reference to internal emails which proved
his case sparked off certain lines of investigation
within News International. Harbottle & Lewis, a firm of
solicitors, were asked to consider a database or part of
a database and to advise whether they yielded any
evidence of the case Mr Goodman was advancing.
The Harbottle & Lewis investigation covered over
2,500 emails and related to five senior newspaper
In due course, Harbottle and Lewis advised that in
their view these emails did not amount to proof that
others knew about Goodman and Mulcaire's phone-hacking
activity, and this advice was subsequently relied on by
News International as supporting their public line.
It should be noted that Harbottle and Lewis have
subsequently stated that their review was limited and
never intended to give News International a clean bill
of health for all purposes. By implication, they are
criticising News International for placing too much
weight on their advice.
Whether this is an issue which the Inquiry will need
to consider is debatable. What may be more relevant,
however, is the fact and level of the settlements
reached with Goodman and Mulcaire, since this may be
viewed as further evidence of a culture of secrecy and
Having reached this stage in my submissions, I am
able to assist the Inquiry further in relation to the
Mulcaire notebook and to provide an overview analysis.
The purpose of doing so is solely to provide you with
some sense of breadth and depth. My analysis is drawn
from the work of officers in Operation Weeting.
The Mulcaire notebooks run to some 11,000 pages.
They evidence some 2,266 taskings, although some of
these relate to the same individual. On occasion, the
true targets will not be the person identified in the
notebook. Often, the hacking was directed at associates
of the true target, with a view to finding information
about the true target.
Overall, there are about 28 legible corner names.
I have already given cyphers to some of these in
relation to the counts on the origin indictment.
Apart from Goodman, the most prolific users of
Mulcaire's services were corner names A, B, C and D. A
appears on 1,453 occasions; B, 3,003 occasions; C, 252
occasions; and D, 135. This accounts for 2,143
LORD JUSTICE LEVESON
I think for B you mean 303, not
Did I say 3,003? My apologies. 1,453 for A, 303
for B, 252 for C and 135 for D. That accounts for
2,143. The total number of taskings was 2,266.
The other corner names appear infrequently, often in
single figures, as the basic arithmetic must suggest.
The Metropolitan Police have recently placed in the
public domain a number of potentially identifiable
persons who appear in this material and who may
therefore be victims. The figure they have given is
5,795 names. There are 318 outgoing calls to unique
voicemail numbers from a variety from phones. Some but
a minority of those, may be people legitimately
accessing their own voicemails remotely.
There are 690 audio recordings by Mulcaire. There
are 568 --
LORD JUSTICE LEVESON
586 voicemail messages, mostly messages that were
apparently intercepted. There were 64 identifiable
individuals who were intended recipients of the 586
voicemail messages. There are, in addition,
38 recordings of Mulcaire blaggings.
The scale of this activity gives rise to the
powerful inference that it must have occupied Mulcaire
full-time, an inference which is supported by Mark
Thomson's evidence to the Inquiry, in particular
paragraph 33 of his witness statement, which we will
hear next week.
Had Mr Michael Silverleaf known of this evidence
when he advised, in June 2008, the present inferences
which he was prepared to draw from far less cogent
material would have been even stronger.
According to the Metropolitan Police,
News International hacking operation had certainly begun
by 2002, Milly Dowler being the first named victim. We,
however, have recently seen a document which emanates
from May 2001. The police believe that it continued
until at least 2009. This belief is not derived from an
analysis of the Mulcaire notebooks, which we know were
seized back in 2006.
What inferences may safely be drawn from this
material for the purposes of part one of the Inquiry?
My approach will be a parsimonious one, although
I should emphasise I have not opened to you all the
evidence which is in the public domain.
It is clear that Goodman was not a rogue reporter.
Ignoring the private corner name and the illegibles, we
have at least 27 other News International employees.
This fact alone suggests wide-ranging illegal activity
within the organisation at the relevant time. Aside
from the number of individuals potentially inculpated,
we also have evidence of a significant quantity of
illegal activity over a relatively lengthy time period.
There are a number of ways in which this activity
might collectively be characterised. I suggest that it
would not be unfair to comment that it was, at the very
least, a thriving cottage industry.
A public interest defence could not be run at any
criminal trial because we know that it does not exist
A. In any event, we have Mr Silverleaf's
trenchant view expressed in the context of the civil
claims that it would not have run as a defence to the
breach of confidence claims either. His opinion was
doubtless based on an assessment of the illegality of
the means deployed weighed against the sort of
information News International was hoping to unearth.
With respect, Mr Silverleaf's opinion is obviously
right, and I do not imagine this Inquiry will hear
a contrary view.
In characterising the behaviour of those who partook
in these activities, Mr Justice Gross described it "as
low as it gets". Apart from being illegal -- this is my
language now, not Mr Justice Gross' -- it was grubby, it
was underhand and it was high-handed.
Maybe individuals, the corner names, did not know
that this was illegal. That would, of course, not be
a defence. Maybe some thought that public interest
defence, as they saw it, justified everything. Maybe
the moral compasses of those directly involved were
simply pointing way off true north because, after all,
so they would say, they owed a wider public duty to
expose hypocrisy and to entertain. The public has
a right to know. Unfortunately, it might be said
against them that the same willingness to judge the
conduct of their targets on moral grounds does not
appear to be self-directed.
Questions might be been asked as to how high up in
News International the metaphorical buck stops. Here
one needs to be careful, particularly in defining one's
terms and evaluating the present state of the evidence.
Further, the submissions I'm going to make will not
cover the possibility of corporate liability under the
Data Protection Act or elsewhere.
First of all, there is a difference between
responsibility in terms of the criminal law and
responsibility in terms of corporate governance and
ethics. The latter is capable of being much wider than
In terms of the criminal law, nothing less than
proof to the criminal standard of accessory liability
would suffice. By this I mean the following: there
would have to be proof that X, within
News International, aided, abetted, counseled or
procured the relevant breach of section one of RIPA.
Hard evidence of this would be required, not
speculation and guesswork. Inferences are capable of
being drawn in criminal cases but juries are warned to
Sir, you are almost the last person who needs a
lecture from me as to the criminal law and I am not
a criminal lawyer. However, these submissions are not
being addressed simply to you and it is important to
identify the basic principles.
When one comes to corporate governance and ethics,
the debate is somewhat broader, but at the same time the
Inquiry does not seek to prejudice the criminal
proceedings. For the purposes of this Inquiry,
News International are likely to find themselves caught
on the prongs of Morton's Fork as there are only two
logical possibilities: either senior management knew
what was going on at the time and therefore at the very
least condoned this illegal activity, or they did not,
and News International's systems failed to the extent
that there was at the very least a failure of
supervision and oversight, with possible failures of
training, corporate ethos and checking of expenses
There is, I suppose, room for the Nelsonian blind
eye within this framework. The point I am making is
that for either version, we have clear evidence of
a generic, systemic or cultural problem. The length and
breadth of the illegality enables me to make that
submission without seeking to unbuckle myself from the
straitjacket I have tied around myself, namely that any
inferences I would draw would be parsimonious ones.
It is, of course, possible to consider a range of
other potential influences but I'm not advancing these
as submissions, merely as possibilities. I've already
mentioned the possibility of a culture of cover-up and
denial. This issue is certainly within the reach of the
terms of reference and we will need to address it.
Consideration may also need to be given as to
whether there might have been wider causes in play, both
inside and outside the organisation. The existence of
such wider causes gives rise to the possibility that
these illegal activities may not have been confined to
News International, but given the known scale of these
activities within News International, this possibility
cannot be excluded from account in any event.
Part of the mitigation advanced on Goodman's behalf
before Mr Justice Gross was that his job was on the line
and that he was under constant pressure to come up with
new and tantalising stories. These pressures led him to
cut corners and to indulge in what might be described as
a lazy form of journalism, rather than using
traditional, fairer and more time-consuming methods.
The cult of celebrity and the quest for this sort of
salacious morsel which might, at best, form the basis
for an exclusive story is part of the wider picture
because it encourages journalists to yield to the
temptation to peer into secret worlds if the technology
exists to allow them to do so. Further, if the
prevalent zeitgeist is that no limits exist because as a
matter of principle, the celebrity's life is altogether
in the public domain, then any ethical constraints on
such behaviours are much diminished.
I mentioned the cult of celebrity. I'm not
suggesting that the press is solely or even mainly to
blame for the existence of this. It is part of a wider
phenomenon that human beings tend to enjoy being nosey.
The human geneticist might argue that this is part of
our DNA, a socialist that it is a cultural matter. This
Inquiry is happily not required to resolve this sort of
dispute, but it is being asked to consider the bigger
Nor in this regard is there anything new under the
sun. The great American jurists, Warren and Brandeis,
writing in the Harvard Law Review back in 1890, said
"The press is overstepping in every direction the
obvious bounds of proprietary and decency. Gossip is no
longer the resource of the idle and of the vicious but
has become a trade, which is pursued with industry as
well as effrontery. To satisfy a prurient taste, the
details of sexual relations are spread broadcast in the
columns of the daily papers. To occupy the indolent,
column upon column is filled with idle gossip which can
only be procured by intrusion upon the domestic circle."
I commend this article to the Inquiry not because
I necessarily agree with it but because it provides
a counterweight to some of the historical analyses on
press freedom which quite rightly have been pressed on
the Inquiry by some of the core participants and it
contains a pithy and very well-written encapsulation of
what is meant by the public interest.
In touching on these possible wider causes, one is
reminded of what Mr Lionel Barber, the editor of the
Financial Times, said at his public lecture earlier this
year. I quote:
"Most important of all, the newspaper industry
itself did not take the issue secretly (sic) or seek to
LORD JUSTICE LEVESON
"Did not take the issue ..."?
"Seriously". Pardon me.
"... or seek to establish the truth. Indeed, aside
from the lead taken by the Guardian, which was followed
by the FT, BBC and the Independent, the rest of the
newspaper industry took a pass on the News of the World
phone hacking story, almost certainly because they too
were involved in dark arts."
My review of phone hacking has been confined to the
present state of the evidence relating to the
News of the World. However, the Inquiry is beginning to
receive evidence to indicate that phone hacking was not
limited to that organisation and this will no doubt
assist on the issues of culture, breadth and depth.
Sir, I'm now moving on to a different topic.
LORD JUSTICE LEVESON
I think that's a very good moment to
call a break.
LORD JUSTICE LEVESON
We'll resume at 2 o'clock. Thank
(The luncheon adjournment)