RESEARCH TOOLS


Afternoon Hearing on Wednesday, November 16, 2011

No witnesses gave statements at this hearing

Hearing Transcript

(2.05 pm)
LORD JUSTICE LEVESON
Yes, Mr Sherborne.
MR SHERBORNE
Sir, I arrived before the short adjournment at the subject of kiss and tell stories and chequebook journalism, the trademark feature of tabloid press, one might say. A number of the core participant victims will give evidence about their experiences. Mr Flitcroft is one such person, Garry Flitcroft. A name most of those listening to this speech, even football supporters, might have to scratch their heads about for a moment. Indeed, I'm sure he won't mind me saying that he's probably better known for his appearances in legal textbooks than he is on his appearances on the football pitch, that is to all but die-hard Blackburn Rovers fans. He was the person, you recall, who put the A into A v B plc. Probably the first kiss and tell injunction to be decided by the English court following the introduction of the Human Rights Act. In one sense, his story is quite simple. That is how no doubt the points would like to present it. He obtained an injunction from a first instance judge in 2001 to prevent the publication of details of an affair, an injunction which was later overturned by the Court of Appeal in early 2002, with Lord Woolf delivering the leading judgment, a judgment which has certainly been much vaunted by the press over the years since it blurred the distinction I mentioned between what is truly in the public interest with what the public are interested in, the Court of Appeal in 2002 deciding that there was some legitimate interest in the general public knowing the details of A's sex life since, as a professional footballer, he was supposedly a role model. Far be it for me to criticise Lord Woolf, but it is a judgment which is now widely accepted would be decided differently today, even, I suspect, with the first instance decision in the Rio Ferdinand case which, as you've heard, is on its way to appeal. For those who are interested in such things, you should read the judgment of the later Court of Appeal in the case of Loreena McKennitt v Niema Ash, probably one of the leading statements of domestic law on privacy in which the English court finally resolved the tension between the decision in A v B on the one hand and the Strasbourg definition of Articles 8 and 10 of the European Convention on Human Rights, which are now incorporated into United Kingdom law, on the other hand. Resolved of course, as we know, in favour of the decisions of Europe. There is perhaps no surprise about this. It's been a ruling not just of the Court of Appeal but the House of Lords as well, since this was the inevitable and indisputable consequence of introducing the European Convention of Human Rights into United Kingdom law, and before the anti-Europe brigade start to sound off, the press cannot have it both ways. The freedom of speech which they rely on is given to them by virtue of Article 10 of the very same Convention as Article 8. The fact that the Court of Appeal would almost certainly have decided this case in favour of Mr Flitcroft now is little consolation, I suspect. Similarly, the fact that Mr Mosley won his case in front of the High Court, but only after the material was already published. But behind Mr Flitcroft's legal case, there is a real story about a real person and the impact which this kind of journalism can have, something which as lawyers we rarely think about, but this Inquiry needs to consider. Mr Flitcroft will explain that whether the law was right or wrong, the impact on him, as on others caught up in such stories, was enormous. Following the very public humiliation of him and the feeding frenzy in the media when his name was finally revealed, with his anonymity as just "A" being lifted amongst further newspaper speculation as to his identity, his family was ripped apart. You may feel very sorry for him personally about that, or you may not. His main concern, however, is his family. He told his wife about the affair before the injunction was lifted. You might say he was forced to. But any chance they had of dealing with the problems which this caused was shattered, however, by the humiliation which they had to endure so publicly, both of them. Journalists were camped outside his door, news helicopters were flying over his house, tracking down his family wherever they went. In the full glare of the media spotlight, it is no wonder that they had absolutely no chance of dealing with a situation which those not in the public domain have the chance to sort out in private, as such things should be. He will tell you about the teasing, the gossip which his children had to suffer at school. He will tell you about the barrage of relentless and hounding publicity, publicity which caused his father-in-law, who was suffering from Parkinson's disease, enormous distress. The publicity was so bad that his own father, who had come to watch him play football from the age of 7, had to stop going to see him because of the abuse that he received. How his depression had worsened and he later committed suicide. Uncomfortable perhaps for the press to listen to? Well then, good, because these are the stories behind the headlines, headlines which come and go like yesterday's chip paper, but the damage which they can do to real people, whatever their profession, goes on and on.
LORD JUSTICE LEVESON
That's not necessarily so any more.
MR SHERBORNE
Indeed, and that's something the Inquiry needs to consider, given that these stories permanently reside on the Internet. Mr Mosley will give evidence to you about how difficult it is to try and deal with that, even where the English court has ruled that the publication should never have taken place. And what about the woman, sir, with whom he had this affair and who was exercising her freedom of speech? Her attempts to demand money from Mr Flitcroft through sending a package to his parents' house asking for cash in return for her not disclosing their relationship were refused. She therefore exercised her threat because Mr Flitcroft did not want to give in to such blackmail. No doubt she got her money from the newspaper and a sizeable cheque, I'm sure, and no doubt her motivation was her belief that his wife ought to know about their affair. What of the newspaper? One wonders whether it was all worth it after all. Was Mr Flitcroft's right to privacy and the effect which invading this caused really outweighed by some specious public interest which has at its heart the commercial motive that without such stories the tabloid press fears it will not exist? Is the need to satisfy an insatiable public appetite for salacious gossip more important? Perhaps we will never know. I will come back to this, though, because it's important, sir, in the context of prior notification. What consolation, as I have said, for Mr Flitcroft that the law might be considered wrong now, or not. It's irrelevant. It's not going to give him back what he's lost, and that's the very real problem with invading people's privacy because once it's breached and private things are made public, particularly in a national newspaper and particularly with the Internet, then that privacy is lost forever. We do need to ask what price we place now on privacy in our society. One we would like to think of, as I said, as a mature and tolerant one. If further examples are needed, Charlotte Church's evidence will provide another one. Part of her statement concerns a story which was published on the front page of the News of the World in December 2005 under the headline, "Church: three in a bed cocaine shock". You might be forgiven for thinking when you saw that headline that it was some revelation about the singer herself. It wasn't, although I suspect that was the intention. Instead, it was a story about her father having an affair with someone who worked for him, and in several pages lurid and sensational details of this private relationship were plastered across the newspaper. The effect on her parents, and particularly her mother, someone the press would call the innocent party, was absolutely devastating and Ms Church will tell you about this. The newspaper was aware of that effect even at the time. How do I say that? Because it subsequently transpired that the Church family has discovered that the story was the product of their voicemail messages being illegally accessed by Mr Mulcaire. Part of the information which they would have found out was the fact that shortly prior to the story being published Charlotte's mother was admitted to hospital following an attempted suicide. The newspaper knew it. In an act of great sensitivity, as Ms Church will explain, following the article published, the newspaper approached her mother directly and persuaded her to give them an exclusive, despite her fragile condition, as part of a Faustian pact that in return they would not run another lurid follow-up story about her husband's affair. So when people talk of public interest in exposing the private lives of well-known people or those close to them, this is the real, brutally real impact which this kind of journalism has. There are, of course, less extreme examples, but they still demonstrate how, in my submission, unjustifiable such stories are, contributing nothing as they do to what is truly in the public interest. Steve Coogan, for example, will give evidence to this Inquiry. Another individual whom the popular press love to vilify. But look behind the silly tabloid stereotypes for a moment. He is, I would say, perhaps he would not say it himself, a talented writer, comedian and actor, but most importantly, he has not sought publicity for himself. He doesn't turn up to do openings, he doesn't preach morality to anyone or set himself up as a role model. Nevertheless, he has been on the receiving end of numerous kiss and tell stories. His evidence, whilst less dramatic than that of Charlotte Church, is equally important to demonstrate how this almost unique English journalistic culture of kiss and tell stories can, over time, have an insidious effect even on the most sanguine and impervious of individuals. He will describe how not just him but his family and friends have been affected by this, how he's been doorstepped by journalists and so have partners, members of his family, parents, grandparents, all in an attempt to dig up stories about his private life. He's had journalists camped outside his house, rooting through his bins, bothering neighbours, following him in cars and so on and so forth. Yes, the obsession with well-known people and the belief that details of their private lives, exclusive details, sells newspapers, has led to yet another excess, the hounding of celebrities. Not just from intrusive stories, but also because of the market this creates for the paparazzi, an aggressive breed of unregulated males equipped with a camera, often used as more of a weapon than a means of recording someone's image. Their methods of stalking vary from driving recklessly in the hot pursuit of their prey through the streets of London with all the dangers this causes, through crashing into cars to stop someone getting away from them, to force a confrontation for which read perfect photo opportunity, to camping outside someone's home and refusing to leave, to chasing and jostling their victim down the road, shouting out abuse in the hope that a reaction can be provoked and a caption generated for which a certain section of the press will pay handsomely. It goes without saying that without this kind of willing market, there is no livelihood for this species of journalistic activity. A number of witnesses speak about this, at least in general terms. However, in case anyone thinks that this is just a problem for the rich and famous, I can safely say that having been involved in obtaining every one of the six injunctions which have been granted to stop this kind of harassment to well-known people, it is a miracle that no member of the public has got seriously hurt, although many have been caused considerable nuisance, so indescribably dangerous and oblivious is the behaviour of these individuals, not to mention plain old intimidating. This hounding, this obsession with reporting on every aspect of a well-known person's private life may seem relatively innocuous, perhaps, unless of course you are the person having to deal with it, and it doesn't matter, it appears, whether you try to be intensely private or not. JK Rowling is a good example of this. She will explain to the Inquiry how, because of the enormous success of her writing talent, she went from being what one might call an ordinary person to what one might call famous, but how despite this she and her husband have gone to enormous lengths, lengths which many would regard as not being necessary, to protect -- or should not be necessary -- to protect the privacy of her family and to let the press know, that section of the press so desperate to indulge their curiosity about her private life, that that is the attitude they take. The fact that Ms Rowling has tried to carve out and protect some form, semblance of normal life for her children but has failed to do so despite her best efforts, just highlights the excesses of the press. It should not need saying, and indeed it is part of the PCC code, whatever good that has done her in the past, as she will tell you, that just because children have famous parents doesn't mean that they are public property as well. Adults can make choices. Children, of course, can't. Whilst the most well-known of Ms Rowling's repeated disputes with a certain section of the press, desperate to overstep the boundaries between her private and professional career, is the case that she brought against Big Pictures, a photographic agency over a photograph they took published in the Express of her walking on a family outing sharing some special moments with her husband and young children, this is by no means the only example she will give of such intrusion. There have still been photographers and press camped outside her house. Her young children have had notes placed in their school bag. Pictures of them have been snatched whilst they've been enjoying quality time on holiday. So what, you may say. Just think for a moment. What if you knew that whenever you take your family out of the house, just to go to the park or to the shops, things that you or I, as so-called ordinary people, do without thinking, what if every time you did this you had no idea whether a photographer was going to jump out of the bushes and photograph your children? How would you feel? Scared? Little bit like a prisoner? Perhaps. But more importantly, why should you have to tolerate this kind of hounding, this level of intrusion into your private life? Especially if you are well-known for guarding your privacy as fiercely as Ms Rowling does. She will explain the very real corrosive effect that this has had on her children. Finally, one other point she will deal with, which may seem a small one, is the obsession with publishing the address of people in the public eye, or sufficient details of their homes so that they can be identified. This is a complaint which she has in common with a number of well-known people, although I think she is the only person giving evidence to this Inquiry who refers to it expressly. It's a problem she's had with a number of publications over the years. It may, as I've said, seem at first blush like a small point, but it is one which is of importance to her, since she deliberately chose to live in a remote part of rural Scotland in order to keep her family's privacy. In the past, one tabloid newspaper has even printed the street name and photos of her house, photos which apparently showed the CCTV cameras and other security measures which she has had to employ to protect herself and her children from those, for example, who are well aware of her commercial success. And simply because her address is not a secret in the sense you could probably find it somewhere on the Land Registry if you carried out the necessary searches, does not mean that it is not private, and it doesn't mean that it justifies the publishing of details in a national newspaper with all the security risks that this creates. Then there are the other core participant victims who will give evidence of the way that they have constantly had to fight against a steady stream of lies or distortions published about them because it suits the press to portray them in a certain way. Sheryl Gascoigne is one of them, for example. She will explain how the minute she married Paul Gascoigne, she became a villain in certain sections of the press, especially after their divorce, but even before, despite being the well-documented victim of domestic abuse. Regardless of the true position, she has been persistently portrayed as the callous, money-grabbing wife, blamed for her ex-husband's well-documented problems in story after story, so many times indeed that fiction has turned into accepted fact. Or at least was until she decided in the end to bring a series of libel actions, as she will tell you. She is an example of someone who initially dealt with the fame which she received when she started a relationship with a national hero by deciding that the best course was not to take on the press but rather to maintain a dignified silence. It is a view which after many years and countless press cuttings she was forced to change, primarily because her children were angry at what they read about their mother. She will tell you how the decision to fight back, as it were, in 2009 and to use her legal rights was an effective one. It is something the Inquiry will obviously consider when looking at how the press are regulated in the wider sense. However, while she won all of her libel actions, the best remedy for her would have been for these lies not to have been published in the first place. As she will tell you, this decision to use legal means has at times been risky. It nearly cost her her family home, as she had to place it on the market to fund her legal action to clear her name. Thankfully, she won just before the house was sold, but her attempts to try to set the record straight, if not for her, then for her children, who have to read about these lies, is one which has not been easy. Charlotte Church is another core participant with a similar complaint, albeit with her own unique set of circumstances. Having started her professional life when she was just 11 years old as a child prodigy, she has had to enduring intense media scrutiny and in particular what appears to be a concerted attempt to disparage or denigrate her. Given that a lot of this has happened as she was struggling, like most girls of her age, with the pressures of becoming a teenager, some of the reporting was deeply irresponsible, not to mention plain wrong. She also chose, like many, to take the course of least resistance. The press, or at least various newspapers, are going to publish what they publish; why fight it? That is, until her children started to reach an age where they could read the lies and distortions published about her for themselves, published by those intent on perpetuating the stereotypical image of her as the voice of an angel who eventually fell from grace. She will dismiss the myth of the so-called whingeing celebrity, as well as the line trotted out in self-defence by more tabloid journalists than I can count that celebrities somehow need this publicity and only complain when it's negative. I will let her deal with that. More importantly, she emphasises the particular protection which young people need, especially those who, because of a certain talent, enter the public eye without any real idea of the consequences. Just to show you how topical her evidence is, she will recount how a week or so ago a story hit the newspapers about how she is meant to have made an exhibition of herself drunkenly proposing to her partner in a bar while singing karaoke. It was a good story, with all the favourite tabloid stereotypes about her: a drunk Charlotte Church, karaoke singing in a Welsh bar, a drunken proposal. Everything. The problem is it was a complete fabrication. Not least because she wasn't even there on the night in question. Did anyone check with her? No. Did anyone think about whether this was intrusive let alone true? Apparently not. To use the Kelvin MacKenzie line, it sounds right so it probably is right, so let's lob it in, bugger sources or respect for people's private lives. For the journalists, perhaps they decided not to let the facts get in the way of a good story. These no doubt are the same type of tabloid journalists Trevor Kavanagh, the political editor of the Sun, was referring to in the seminars when he described them as the "finest creative professionals in the business", although he was speaking without a hint of irony. Ms Church will also describe the massive effect which this kind of journalism has had not only on her life but the lives of her family and friends, collateral damage, one might call it, and the worst excesses of the press came when she was between the ages of 16 and 20, reporters cutting holes in the shrubbery and installing secret cameras, being chased in a car, photographers trying to open a car door while she was inside, trying to take photographs up her skirt. On one occasion she begged the News of the World not to reveal where she lived as there was a threat to kidnap her at the time, but they refused. Or the time the press revealed she was pregnant when she hadn't even told her parents, so desperate were the newspapers to get an exclusive scoop on her private life. Before I leave the topic of the damage which the press can do in terms of false portrayals, let me give you two further examples. Examples which seem to fit the description Mr Peppiatt gave when he said that tabloid newsrooms are often bullying and aggressive environments in which dissent is often not tolerated, in particular when it comes to big stories. One doesn't need to explain that to Gerry and Kate McCann. The disappearance of their daughter on 3 May 2007 was on any view a big story, and one which had the press falling over themselves to cover, taking up almost permanent residence in the beginning in Praia da Luz. When he gives evidence, Mr McCann will explain how it felt for him and his wife to be thrust from what one might call anonymity into the public limelight in the worst possible circumstances, one with which any parent would sympathise. It may be appropriate for me at this moment to read out what clause 5 of the Press Complaints Commission's code says, entitled "Intrusion into grief". Clause 5 states in terms which appear to have no public interest qualification: "In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively." Mr McCann's evidence will be a perfect example of how hopelessly inadequate this self-regulatory code is as a means of curbing the excesses of the press. He will refer to the blatant intrusion which he and his family suffered throughout, particularly when they were back in the United Kingdom, from the press camping outside their door to how his children were terrified as they were driven around by their parents. He will explain how sensitively the media dealt with this. Moreover, he will explain how in the months following the abduction of Madeleine, the behaviour of the press changed from an attitude of support to one of hostility, a change which he suspects, and we say rightly, was based on the commercial imperative to bring home exclusive stories for editors greedily waiting back in the United Kingdom watching the expenses bills of their journalists mounting up. Apparently journalists were being told, he will say, that they had to get a front page story, or their job was on the line. What happened in those days in late 2007 and into 2008, when stories about the missing toddler became thin on the ground and the pack of journalists were sitting idly in the bars, must be some of the darkest days for this section of the press. Some of the headlines that were published, either based on some nonsense supposedly gleaned from the Portuguese police, often on nothing at all, were a national scam, and I list some of those headlines: "DNA puts parents in frame. British experts insist their tests are valid". "Parents' car hid a corpse. It was under carpet in boot, say police". "It was her blood in parents' hire car, new DNA tests report". "Kate and Gerry's sabotage plot". "Maddy's grave, McCanns buried her on beach". "Waiter can prove that parents lied, says Maddy police. What Kate called out". And finally "Maddy sold by hard-up McCanns". And all this despite the fact that the couple had tried through the police to circulate letters to the editors begging them for restraint, especially given the ongoing search for their little girl, but all to no avail. Of course, one thing did eventually work, you'll be pleased to hear. I say you'll be pleased to hear, sir. That depends on whether you are a believer in the Press Complaints Commission or self-regulation. It was a libel complaint that worked, worked at least in the sense that the campaign to vilify this poor couple with the sort of nonsense stories that I've read out stopped. A massive payout, to use the tabloid phrase, was made by the Express, the worst but by no means the only offender, and this proved to the world that these accusations were untrue. But there are still some people out there who will no doubt believe that there is no smoke without fire, perhaps, the ones who still ring the McCanns' house or try and send them messages. Money doesn't cure all the ills, as the Dowlers will testify to, but unlike a privacy claim, it does prove to the world, at least to the ordinary reasonable person, that these outrageous lies are just that and at least Express Newspapers published a front page apology. If this was a one-off, an isolated case of the press going too far, it might be forgivable. A lapse in judgment, albeit that it was only the Express Group, but it wasn't. The McCanns' experience is not an isolated or unique experience, and it has nothing to do with too much sun and sangria clouding the brain of a pack of journalists, as my second example demonstrates. He is someone called Christopher Jefferies. A year ago, you would never have heard of him or seen him, unless you were lucky enough to have been taught by him during the 34 years he worked as an English teacher. Yes, for 34 years he dedicated his life to teaching and building up a reputation as an exemplary professional. It took the tabloid newspapers only a matter of moments to destroy that reputation in the last days of December of last year. Worse still, he was catapulted, like the McCanns, from anonymity into the public spotlight in the most terrifying way possible, as the man responsible, they claimed, for the murder of Joanna Yeates, the Bristol girl who rented one of the flats of which he was a landlord and who disappeared on the weekend of 17 December and whose body was discovered on Christmas Day 2010. We all now know that Mr Jefferies was entirely innocent and the murderer, Vincent Tabak, has now been convicted. But it created a media feeding frenzy of almost unparallelled proportions, a frenzy which, sir, as you know led to two newspapers being found guilty of contempt of court. On one view, as he sat in a police station answering questions, Mr Jefferies was thankfully unaware of the clamour to convict him which occurred in the press as they appointed themselves his judge, jury and executioner. Once again, it is lucky that when he was released on bail, he was cosseted by friends. Indeed he only fully understood the breadth of the articles which sought to vilify him some time later. Perhaps that is all one can deal with in a situation like that. Thankfully, I don't know. But one reason why Mr Jefferies is an example to us all is that this could happen to any one of us, celebrity or not.
LORD JUSTICE LEVESON
This, again, is an example of something that contravened the Contempt of Court Act, since proceedings were then active against him.
MR SHERBORNE
Sir, it does, but as I will show you with some of the newspaper headlines, not all of them of course were convicted of contempt of court, but we say some of the headlines went far too far in any event, whether or not they breached the Contempt of Court Act. This had nothing to do with hacking mobile telephones, bribing the police, blagging personal information or blackmailing girls into giving kiss and tell stories. Let me share some of the highlights of this appalling coverage. The Sun's headline: "Verdict: weird, posh, lewd, creepy, loner with blue rinse hair." The Daily Mail: "Was Jo's body hidden next to her flat? Murder police quiz nutty professor, the teacher they called Mr Strange." And then the Mirror: "Jo suspect is Peeping Tom. Arrest landlord spied on flat couple, friend in jail for paedophile crimes." So on and so forth. All in all, it represented a frenzied campaign to blacken his character and persuade the public that he was guilty, a frightening combination of smear, innuendo and complete fiction involving gratuitous dirt digging to the most shameless extent possible. He was monstered in almost every sense imaginable, wrongly accused of being a sexually perverted voyeur, attacked for having had a malign influence over his pupils, suggested he was involved in a previous murder and linked to a convicted paedophile, who I think was the man who owned the flat before the man who owned this flat sold it to the man from whom Mr Jefferies bought. Well, you get the picture. Obviously he must have been guilty, then, of murdering Jo Yeates. All of it was nonsense, and all of this despite warnings from the Attorney General, warnings that were largely ignored. Of course they were. It was too tempting not to publish. It was a devastating destruction of all aspects of Mr Jefferies' life, from the professional to the most deeply personal. For example, his relationship with his late mother, the properties he owned, his conduct as a landlord, his entire teaching career. Like clumsy thieves, drunk on the frenzy of an intoxicatingly good story, the press broke into his life and trashed everything, everything that was precious to him, in particular ransacking 34 years of dedication to his profession in a desperate bid to find what they were looking for, a way of establishing he was guilty. It is perhaps no wonder Mr Jefferies described it later in this way: "My identity had been violated, my privacy had been intruded upon, my whole life. I don't think it would be too strong a word to say that it was a kind of rape that had taken place." Mr Jefferies is no celebrity, he is not a politician. A year ago today, I don't imagine that even in his worst nightmares Mr Jefferies would have ever dreamt this could have happened to him. No one ever thinks it will happen to them. And the attitude of the press? One editor later described it when interviewed on radio after the case as a mistake. Really? Just a mistake? How reassuring. I suppose the hacking into Milly Dowler's phone was just an error. But what does that say about the ethics of the press, or at least a certain section of it? Is this the kind of behaviour, I ask, which is the reason why we have this Inquiry? Or do people still believe, as some newspaper groups maintain, that there is no problem and that we are only here because of political revenge wreaked by the members of Parliament who have been caught out fiddling their expenses? Yes, Mr Jefferies brought libel proceedings and yes, he was paid a significant sum, but does that really make up for what happened to him? Does anyone here really think that having to dip into their profits will make these newspapers think twice? It's an interesting feature of this story and one I will leave you with, sir, that some of the journalists who monstered Mr Jefferies were the very same journalists responsible for the stories about the McCanns. I'd love to name names, but I promised not to, and tempting though it is to employ the same jigsaw identification tactics which the press use to undermine the orders courts grant to protect individuals from unlawful publications, I am no John Hemming. Perhaps it's fitting though to let Jo Yeates' partner have the last word. In a public statement back in January of this year, long before Mr Tabak was arrested, he described the finger pointing and character assassination by the news media of an as-yet innocent man, Mr Jefferies, as "shameful". "It has made me lose a lot of faith", he said, "in the morality of the British press". I don't suppose Mr Jefferies has a lot of faith in their morality either, and neither might you, sir. Before we leave this type of journalism, I should briefly return to the McCanns, because they were to suffer one final swipe. Without any warning, in September 2008, the News of the World published Kate's private diary that she had written to her missing daughter Madeleine. It was a diary in which she recorded her innermost thoughts, things she had written to her daughter, a document so private that even her own husband had not seen it, but which was taken by the police in the course of the investigation. How did the News of the World get this from the police? Did they buy the information? Obtain it through some form of deception? We may never know now, especially as the newspaper is defunct. And on what basis did they think they could justify such a staggering intrusion into the McCanns' privacy? The publication of this material, under the headline "Kate's diary in her own words", with a picture on the front page suggesting she had provided this herself, left her feeling "mentally raped", her husband says, and is it any wonder? At if the McCanns didn't have enough to deal with. Does this suggest something is fundamentally wrong with the culture, the ethics and practices of the press or all three? Sometimes, it is hard to differentiate between them. On any count, I would say, this was wrong, wrong and wrong. It should be quite clear now to the Inquiry that a number of people are coming here of their own accord to recount some highly personal and distressing experiences, to put into the public domain very private matters about themselves and to do so not because they have anything to gain, which they don't, but because they want to see something done to stop this type of behaviour so that other people don't have to endure the same suffering, whether great or not so great comparatively. However, they all have a fear, a very real fear, sir, that you've recognised, that in doing so, not only will they have to go through painful experiences again, but that they will run the gauntlet of a certain section of the press who will seek to vilify them for standing up for their rights and for speaking out against such types of behaviour. I have already explained how it is routine fare for newspapers to rubbish privacy claimants or so-called whingeing celebrities, how they even go after the judiciary as well, or certainly particular ones who make decisions against them. It appears that the press do not like it when people exercise the freedom of speech which they constantly refer to against the press themselves. For a media that is so quick to shame those in positions of responsibility or power when they claim that these responsibilities or powers have been violated, it appears that this does not work in reverse, despite the enormous power and responsibility that the press holds. What happens then to those who stand up to the double standards of certain sections of the press? Already, some of those who are giving evidence before you have started to receive the red carpet treatment. In one of the curtain raisers for this Inquiry, for example, the Daily Mail wrote as follows: "The Leveson Inquiry into phone hacking will ask core participants to give evidence. The line-up looks set to include the get your clothes off model Abi Titmuss, S&M spanker Max Mosley, prostitute procurer Hugh Grant, gold digger Cheryl Gascoigne, John 'pants down' Prescott and the rent boy loving former MP Mark Oaten. Gerry and Kate McCann are also expected to appear along with the parents of murdered Milly Dowler. What sleazy, degrading company for those who have truly suffered." Mr Grant will speak for himself, he's perfectly willing and able to deal with these myths, the myths that those whose self-interest requires it peddle through the page of their newspapers. He can deal with all these aspects without me needing to and he will do so despite running the risk of merely feeding those journalists poised with pen at the ready to dismiss everything he says as the rantings of another whingeing celebrity. See, I've written it for them. He can deal with all of that admirably, but what he finds more difficult to deal with, and who can blame him, is what has happened to those close to him in the months since he became such a vociferous critic of a certain type of journalism as opposed to the public interest journalism which he is very anxious to distinguish and support. The story is told in his supplemental witness statement. The fact that it comes as a supplement, despite his main statement being only a week or so old, is testament to how recent these events are. They involve the mother of his recently born daughter, a woman with whom, despite what the popular press love to write, he has a good relationship, but he can deal himself with the nonsense which has been published about this relationship by the self-appointed moral guardians of Fleet Street, the Daily Mail columnists. Last Friday I had to make an emergency application for an injunction to restrain a campaign of appalling harassment which this lady was having to endure, simply because she was his former girlfriend and just had his child. That's not strictly true. The real reason for the harassment is probably far more sinister, and it is revealed in the evidence which she gave, namely that she has received threats because of the fact that the father of her child has spoken out against the press. She recalls how, whilst Mr Grant was appearing on Question Time, discussing the closure of the News of the World, Rupert Murdoch and press standards generally, she received a barrage of telephone calls from a withheld number from someone who managed to get it from somewhere, and when she finally answered she was threatened in the most menacing terms, terms which should reverberate around this Inquiry: "Tell Hugh Grant he must shut the fuck up." Unsurprisingly, she was too stressed to call the police. After the birth of her child, the fact of which appears to have been leaked somehow, this hounding turned into a continued pursuit of her and her child by paparazzi and other photographers. It became so nasty that when her mother tried to get evidence of the identity of one paparazzo in a car, he then tried to run her over, hence the emergency injunction which was granted by Mr Justice Tugendhat last week. A written judgment is being handed down on Friday.
LORD JUSTICE LEVESON
Has any of this gone to the police?
MR SHERBORNE
It has been notified to the police, yes. You can say what you like about Mr Grant, and believe me, enough of the newspapers have now, but then as Mandy Rice-Davies said, they would say that, wouldn't they? However, he has agreed to speak, as others have, not because of any financial motive. He has chosen not to sue for the hacking of his telephone. As the newspapers sit here with their livelihood at stake, as they tell us, the victims are here on their own time and at their own risk. The last core participant whose evidence I will refer to and who can tell you about the risks of standing up to such bullies and how very real they are is Anne Diamond. She will give evidence to the Inquiry about the vendetta which she believes was waged against her because of a question she put to Mr Murdoch years ago and the devastating consequences for her and her family as a result. Ms Diamond is a journalist and broadcaster as well as a mother of five children, one of whom, as is well-known, unfortunately died of cot death. She had he the temerity to ask the owner of News International what he thought about the fact that his newspapers ruined people's lives, exercising her freedom of speech, you might say. But, of course, you can't do that to a newspaper mogul, and that was it, the start of a press war against her from a particular newspaper section for the best part of 20 years. How could she ever win, you might think. She will describe a catalogue of incidents, each more surprising than the last, stories dredged up by the Sun newspaper with headlines such as "Anne Diamond killed my father", paying her family nanny to talk about the relationship she had with her husband at the time and publishing, most shockingly, on its front page a photograph which the Sun newspaper managed to buy from a freelancer who had taken private images of her and her husband whilst they held their son's coffin at his funeral. Her account of the effect on her and her family is a sobering tale. Unless anyone thinks that this intimidating treatment is reserved only for the well-known or the victims who have chosen to speak out or even the arbitrary judges who rule against the press, the Inquiry has already had a taste of this themselves at the seminars. Who can forget the unedifying spectacle of Kelvin MacKenzie trying to rubbish the Inquiry by attacking its chairman? I won't repeat his particular brand of vilification, but there was nothing accidental in this. It was a smear intended to undermine the process, no doubt, as opposed to anything personal. It appears that after the event, Mr MacKenzie somewhat recanted, offering an apology, albeit a somewhat muted one, one which did nothing to retract the smears as opposed to regretting simply the discourtesy that they represented, given how kind the chairman was to him. This, we say, is another classic example of how the tabloid press works. The apology Mr MacKenzie offered was deep in the middle of his column, somewhere buried in the inside pages of the newspaper. A far cry from the prominence which the comments themselves attracted in headlines throughout the national press, as he was no doubt well aware they would. The apology, by contrast, almost went without mention. And the rubbishing didn't end with the chairman. Mr Dacre apparently dismissed the entire board of assessors in one side swipe, stating that none of them have the faintest clue about how newsrooms operate. I think I've now had at least my allotted time, and so I will draw my conclusions to a close, sir. I have outlined at some length, perhaps, the various individual but in some ways common complaints which my clients, the core participant victims, have about the culture, ethics and practices of the press as they have observed them and has impacted, in many cases profoundly, on their respective lives, families and friends. I leave you obviously with the task of devising a real and effective system of dealing with these abuses, abuses which are largely if not almost exclusively, as I've said, the province of a certain section of the press. I say only this, and it is of little comfort, no doubt. I ask rhetorically: what kind of ethical lessons can you teach to those journalists who authorised or condoned the hacking into the voicemail of a murdered schoolchild or who vilified the grieving parents of an abducted toddler by accusing them of her murder? What hope is there about the prevalent culture when the most powerful press organisations in this country, as we've heard, in the face of the incidents I've mentioned, steadfastly maintain that what we need is a freer press as opposed to any greater form of regulation? And what light is there at the end of the tunnel in terms of the change in practices when Britain's most popular Sunday daily newspaper had to be shut down because it was condoning criminal activity on an industrial scale, and instead of getting to the bottom of how it happened, those in positions of responsibility hired another set of private investigators to follow the 14-year-old daughter of the lawyer who had the temerity to sue it in the hope that this tactic would deter further claims? The victims who I represent don't want to stop proper investigative or public interest journalism. No one sensibly does. But if the relationship between the press and the public is to recover, then this is the time for it to start, and it must start now. Self-regulation through the PCC, as one of my clients says, is tantamount to handing the police station over to the mafia. The press talk about freedom, and with that we say comes responsibility, responsibility particularly for the rights of others. But even leaving that to one side for a moment, it was Albert Camus who said "Freedom is nothing but a chance to be better". We've had press freedom for many years and they've not got better, they've got worse. It is time, we say, for change, and by that I mean real change.
LORD JUSTICE LEVESON
Mr Sherborne, there's a great deal of power behind some of the things you've said, and the balance has to be struck, as I'm sure you appreciate, between the public interest, properly so-called, obviously, and rights of privacy to which you've referred, which can't necessarily exclude all circumstances in which it's appropriate for the press to look at individuals. I'm not trying to draw lines. You've been present as I've said more than once that a system has to be devised that has to work, and it has to work for the press, but it equally has to work for the public.
MR SHERBORNE
Sir, yes.
LORD JUSTICE LEVESON
So I would hope that you and those who instruct you will put the same sort of thought into the issues that I have raised with the press, bearing in mind that although of course you're acting for 51 individuals, and of course have a very clear message to tell on their behalf, at the end of the day I have to find a route that works for everybody.
MR SHERBORNE
Sir, yes, indeed, you have.
LORD JUSTICE LEVESON
I hope you'll take part in that debate.
MR SHERBORNE
Sir, we will. Can I just say this, and I say this without having had the chance to take full instructions from those I represent, but certainly having listened to Mr Rusbridger, it may well be that there is some common ground between the interests I represent and the statements that have been usefully put forward by Mr Rusbridger on behalf of the Guardian as looking at a real way, a sensible and responsible way of dealing with this area.
LORD JUSTICE LEVESON
There is no immediate rush. It's obviously important that we hear this evidence in proper form at an appropriate pace, but the reason I have mentioned it so frequently is because the time to start at least contemplating the possibilities is now rather than in six months' time.
MR SHERBORNE
Sir, yes, indeed.
LORD JUSTICE LEVESON
I have been very careful not to express concluded views. I have called it various things: thoughts, streams of consciousness, but simply, as I'm sure the lawyers appreciate, I am preserving the position with an entirely open mind and prepared to be taken where the evidence leads me, but that's not to say that I'm not thinking and I want everybody else to do the same.
MR SHERBORNE
Sir, of course.
LORD JUSTICE LEVESON
Thank you. Thank you very much indeed. We'll have a break for five minutes, then Mr Jay, I wanted to know whether there was anything that you wanted to pick up from the various submissions that I have received, and then we'll see where we go from there. I think there are one or two other matters we have to deal with as well.
MR CAPLAN
Before we break, enquiries have been made. Some of the matters which we're hearing about this afternoon obviously are in witness statements of some of the clients of Mr Sherborne that are being called next week and we still do not have those statements. I'm thinking of Mr Hugh Grant's further statement, Mr Coogan, Sienna Miller. These statements still have not come through. I don't know where the problem lies.
LORD JUSTICE LEVESON
We'll find out in four minutes' time. (3.00 pm) (A short break) (3.09 pm)
LORD JUSTICE LEVESON
Right. Have you been told, Mr Caplan?
MR CAPLAN
I'm afraid I haven't.
LORD JUSTICE LEVESON
I'll get the answer. Somebody will tell me. Discussion re procedure
MR CAPLAN
One other point whilst I am on my feet. Mr Sherborne, shortly before we broke -- and it's really for you, sir, more than anybody else -- at page 141 of the transcript was talking about Mr Hugh Grant and his recently born daughter and was making some criticism of columnists in the Daily Mail. He then went on to say that last Friday he was making an emergency injunction in relation to some events of harassment in relation to the mother of that child. I just wanted, having spoken to him, because I haven't seen Mr Grant's supplementary statement, but he confirms that that injunction was not against Associated Newspapers. It was to do in fact with some paparazzi photographers and it was a harassment injunction in relation to those photographers.
LORD JUSTICE LEVESON
Thank you very much. I'm very happy for clarifications, where appropriate, to be provided and made clear as and when. The advantage of not doing part 2 at this stage is that one is looking at the bigger picture, not the specifics of conduct, although obviously when we move away from phone hacking, we can be rather more particular than we can be in relation to what is the subject of a criminal investigation. Thank you. Right, Mr Jay.
MR JAY
Sir, the latest intelligence, the statements of Garry Flitcroft together with exhibits, or one exhibit, and the statement of Mr Ian Hurst went onto the system last night. The statements of Mr Coogan, Ms Church, Ms Diamond, Ms Winter and Mr Grant's supplemental statement have gone to Lextranet today with a request for expedition, and therefore their evidence should go on the system, I imagine, by close of play today. That, I believe, covers the exhibits. Otherwise, it is according to what I told you yesterday, so certainly by close of play tomorrow, everything that is available will be publicly disseminated. We're still waiting for the statement from Sienna Miller. Oh, that's just arrived.
LORD JUSTICE LEVESON
All right. Let's see if we can get that on too.
MR JAY
Yes.
LORD JUSTICE LEVESON
If there is any difficulty at all about affected core participants getting access to statements, is there a mechanism whereby if somebody comes to the team offices they will at least be able to see them?
MR JAY
They're going to be provided separately by email to the core participants, I'm told, to expedite that process.
LORD JUSTICE LEVESON
Good, right.
MR JAY
So any delay at Lextranet's end will be short-circuited.
LORD JUSTICE LEVESON
Good. Hopefully once we get into this system, it will all come much -- we'll get into a rhythm and there won't be the difficulty.
MR JAY
Yes.
LORD JUSTICE LEVESON
It was in part for this reason that I was persuaded, contrary to my own initial desires, to have a three-day week this week rather than a four-day week.
MR JAY
Yes.
LORD JUSTICE LEVESON
But there it is.
MR JAY
Sir, indeed. As I said, the material is not that voluminous, but obviously needs to be considered. I think Mr Garnham has an issue he wishes to raise in relation to numbers.
LORD JUSTICE LEVESON
Right. Yes, Mr Garnham?
MR GARNHAM
Sir, I have two matters to raise, and I will deal with them at the time you think best, but first of all --
LORD JUSTICE LEVESON
How about now?
MR GARNHAM
Then I'll deal with them both now, sir. The first one is a misunderstanding that appears to have crept into some of the information supplied by the MPS, at least in the way it's been relayed.
LORD JUSTICE LEVESON
Well, let's get it right. Yes?
MR GARNHAM
As Mr Jay correctly told you in his opening, there are approximately 28 readable corner names in the Mulcaire notebooks.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
But it is not correct to suggest that a fair inference can be that they were all News of the World employees.
LORD JUSTICE LEVESON
That's what Mr Rhodri Davies suggested. Yes?
MR GARNHAM
Some of them probably are. For many others, it's impossible, at least thus far, to say whether they were or were not. It certainly cannot be said that the MPS have established that all the taskings indicated by corner names were made by News of the World employees.
LORD JUSTICE LEVESON
That will get some other representatives of the press jumping up and down, but all right.
MR GARNHAM
I'll live with that, sir.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
Secondly, the Mulcaire notebooks indeed run to some 11,000 pages, and Mr Jay correctly told you that they evidence some 2,266 taskings, but the police cannot say, because they do not know, whether every tasking targets a different individual. In fact, that's unlikely, and that's plainly relevant to any estimation of the number of victims and the sport of guessing the number of victims is one that's been playing out in the press and elsewhere. All I would say is to counsel caution about trying to estimate the number of victims from these figures.
LORD JUSTICE LEVESON
Right.
MR GARNHAM
A third suggested clarification, sir, is this, and it's in fact me rather seeking a clarification from Mr Sherborne. He mentioned a little while ago that the diary of Mrs McCann had been obtained in some way or other from the police. That obviously caused us a little concern.
LORD JUSTICE LEVESON
I read that as the Portuguese police.
MR SHERBORNE
I thought I had said it was the Portuguese police but if I didn't make that clear, it was the Portuguese police.
MR GARNHAM
I'm grateful for that. That will enable --
LORD JUSTICE LEVESON
As I recollect, and I don't know whether I'm giving evidence of this of what I've read or from the statements, or whether Mr Sherborne said it, the diary was seized by the Portuguese police, and just to make it clear, I have an understanding that the Portuguese authorities required it to be returned with no copies kept, but in some way it found its way to --
MR GARNHAM
I suspect that comes from the statement of Mr McCann, but it doesn't matter, as long as the position is dealt with. The second matter I raise is this. By letter dated 10 November, those instructing me asked the solicitor to the Inquiry whether the Inquiry would grant the MPS permission to disclose the documents placed on the Lextranet to the senior investigating officer for Operation Weeting. We've not had a response to that. I make no criticism of that, I know how busy the Inquiry staff are, but I raised it with Mr Jay last night and he suggested that I raised it with you orally today.
LORD JUSTICE LEVESON
I think you're right to raise it and it raises some very interesting issues, which I will ask for some help about. Is this material that you've now seen material that has been obtained by the Inquiry under compulsion or voluntarily? Do you know?
MR GARNHAM
I don't know. I suspect -- the classic example is a particular witness statement. I suspect that was volunteered, but it might have been in response to a rule 9 or Section 21 request. I don't know.
LORD JUSTICE LEVESON
Are you trying to decide, as you read these statements, whether in each case you want to disclose it to the police or is this blanket?
MR GARNHAM
It's for two purposes, sir. First of all, it's because, as we read it, we're seeing things that would be material to the present investigation and we would therefore like the police to have it. The second purpose is that I would like to take instructions from the officers involved in Operation Weeting about that in order to ground a request to you to make a Section 19 ruling in respect of it. I can't do either of those things because of the terms of the confidentiality order as things stand at the moment, which is why I'm asking you, sir, for permission. I'm quite happy to deal with it if the Inquiry prefers it on a document-by-document basis, although we would inevitably prefer to be able to show the senior investigating officer all the material that goes onto Lextranet.
LORD JUSTICE LEVESON
One has to be a bit careful about that because what's been obtained by me pursuant to a requirement under the 2005 Act, in other words under compulsion, might carry with it certain consequential effects if it were put into the police system. I'm not saying it would, but I'm saying, putting a criminal law hat on, I'm a bit concerned about some aspects of that. Is not the first thing to do, in relation to any statement that you particularly want the police to have because it advances their inquiry, to identify that statement and then, through the Inquiry or through the relevant core participant, seek permission? For example, if one of Mr Sherborne's clients has made a statement which you think would assist the police inquiry, we can ask or I can ask -- it probably won't be me -- Mr Sherborne whether his client would have an objection to that statement being released under the police. Then it's not being provided under compulsion and you have it. That's the first thing. For the rest of it, the need to take instructions I do see as slightly different, and I'll just need to hear what people think about that.
MR GARNHAM
Sir, I should say that with the agreement of the Inquiry, News International are providing all their documentation to us and to the Inquiry, so there's a complete duplication in that regard and that's proving helpful. We don't have the same arrangement with each and every core participant.
LORD JUSTICE LEVESON
No, I can understand that. I have the point. Right, thank you.
MR GARNHAM
Sir, I would only say about that that some of that is urgent simply because the witnesses will be here next week.
LORD JUSTICE LEVESON
All right. Let's deal with the first point first. Mr Jay, I know, because it was discussed with me, that the information which came in your opening essentially came from -- well, obviously came from the police and there was an opportunity for some checking to be done, but would it be fair to say, in the light of what Mr Garnham has said, howsoever it's arisen, that your opening should be read with that caveat that he's identified in mind?
MR JAY
Yes. But we can revisit the question of inferences, indeed we can explore it further, as and when DAC Akers gives evidence because it's one of the matters we will probably ask her about, further clarity on the approximately 19 other corner names.
LORD JUSTICE LEVESON
All right. Thank you very much indeed. Let me deal with this point first because the other person who has an interest in saying something about that is Mr Davies. Mr Davies, you flagged this point up immediately.
MR DAVIES
Yes.
LORD JUSTICE LEVESON
Is it sufficient if we have obtained the correction to the way in which Mr Jay put it, or the elaboration on what Mr Jay said, that we have received which of course is now available for all to see?
MR DAVIES
Yes. As I explained to the Tribunal, we haven't seen the whole of the notebook, so we are in no position to make any comment as to the accuracy of what the police say, but I am content if Mr Jay's opening is treated as amended, as Mr Garnham said, and as Mr Jay says when DAC Akers gives evidence, if it's necessary, some further clarification may be obtained then, but the position for the moment will be as Mr Garnham has put it just now.
LORD JUSTICE LEVESON
That's fine, thank you. Thank you very much and I'm grateful to Mr Garnham for picking that up so speedily. It is inevitable that seeking to summarise, one might not do the very fullest of justice to every detail and inferences which may be thought appropriate may not be right, so we have to be careful. Right, the second point. First of all, it's quite clear that it does in fact, because of the urgency, concern your clients. Your clients, I think, all gave statements not pursuant to legislation, not because I required it, but I think I invited them all, because I felt that it was appropriate to draw that distinction.
MR SHERBORNE
Sir, yes.
LORD JUSTICE LEVESON
Do you have any objection, and if you want to take a couple of minutes to take instructions of course you may, to them being shared with the Metropolitan Police?
MR SHERBORNE
Can I say this without having had the benefit, which I will take in a moment, of seeking instructions? I suspect that there won't be an objection. We haven't received any request from the Metropolitan Police so we haven't had any time to think about this, but I can see the sense of it and I am aware that one or two of those whom I represent have already been assisting the police in the investigation. Can I take a few moments just to --
LORD JUSTICE LEVESON
Of course you can, of course you can. I won't require you to do it with me sitting here looking on. I will rise for a couple of minutes because it's always much easier to do that --
MR SHERBORNE
I think, with the benefit of that time, Mr Crossley, who sits to my left, will speak to the Metropolitan Police and perhaps we can come up with a mechanism, because of course there are a number of different individuals, at least 20 of whom are giving evidence next week, who may well need to be consulted about their individual circumstances, and that's not something --
LORD JUSTICE LEVESON
You won't be able to do that in two minutes.
MR SHERBORNE
No, sir.
LORD JUSTICE LEVESON
As regards the broader pictures, that won't affect you, Mr Sherborne. It really affects others who might have been required to make statements who aren't necessarily represented. Mr Jay, what's the position about this?
MR JAY
Sir, I am troubled by the possible Article 6 reasons. Most of the evidence the Inquiry has received, but not all of it, was obtained pursuant to coercive powers under Section 21 of the Inquiries Act, and the purpose of obtaining that evidence is self-evidently to assist this public Inquiry, not directly to aid the police in its investigation.
LORD JUSTICE LEVESON
Yes. I wouldn't release any statement that had been made by somebody who is presently suspected of crime.
MR JAY
Yes.
LORD JUSTICE LEVESON
Certainly not without them specifically giving authority because they could say anything they liked to the police.
MR JAY
Sir, I respectfully endorse that. The two other sort of categories of evidence, however, there are the possibility of witnesses who provided material to the Inquiry under these coercive powers, who are not currently the subject of a police investigation but who might be if that material were provided to the police. And then there is material which, as it were, would not be self-incriminating but which might incriminate other people. Whether it's necessary in both those cases -- maybe it is -- to ask for the individuals' consent before the material is released to the police is something which I believe is worthy of further consideration.
LORD JUSTICE LEVESON
Yes. Maybe I'll have to investigate this a bit more with Mr Garnham, but I'll be very, very disturbed, I think, if a statement that had been made to the Inquiry pursuant to a legislative requirement was then used as the basis for identifying the writer of the statement as a suspect.
MR JAY
Yes.
LORD JUSTICE LEVESON
Because once that's happened, anybody who has anything useful to say about a large number of topics simply won't say it, and the benefit that I have of the widest possible picture will be entirely lost. I say nothing about Saunders and the European Convention.
MR JAY
Yes. Of course, anybody who receives a Section 21 notice will understand the immunities under Section 22 of the Inquiries Act, and those immunities include a privilege against self-incrimination. It might be said that embedded within that is some sort of assurance that the Inquiry will not be providing that information on to the police, let alone the difficulties you advert to in Saunders v The United Kingdom where the European Court held that it was a breach of Article 6 of the Convention for the prosecution to rely on evidence which had been obtained by the then DTI pursuant to statutory coercive powers.
LORD JUSTICE LEVESON
I certainly won't give that direction without rather more detailed argument.
MR JAY
Yes.
LORD JUSTICE LEVESON
The subquestion is slightly different, and is to this effect: is it appropriate for Mr Garnham to be able to take instructions from a police officer simply for the purposes of this Inquiry and, if so, should that police officer be required to sign a similar confidentiality undertaking so as to provide, if you like, a Chinese wall between what is within the knowledge of the police for this Inquiry and their investigation, or is that unrealistic?
MR JAY
Putting aside the possible artificiality of the Chinese wall, but that may be capable of being surmounted by the giving of an undertaking, on my understanding what Mr Garnham wishes to do is in relation to a particular piece of evidence seek instructions from an officer who has given the undertaking as to whether in those circumstances an application should be made to you for some sort of restriction order under Section 19 of the Act.
LORD JUSTICE LEVESON
Oh, I see, and only for that purpose?
MR JAY
On my understanding, that's the basis of his request. Of course, lest there be any misunderstanding about this, and as everybody knows, there are two separate sections of the Lextranet system. There is a section which is only available to the Inquiry team, which at the moment contains just over 2,000 separate documents. Many of those documents could not be released into the public domain, given Section 19 of the Act and the ongoing police investigation. Of course, we have seen those documents, we have read virtually all of them, and where they are, as it were, confidential documents, we will maintain their confidentiality. That goes without saying. I don't believe that Mr Garnham is asking to look at those documents. What his request relates to are the documents which migrate from that very private section of the Lextranet system to the core participants' section of the system. At the moment, there are not, of course, 2,000 documents on that side of the wall, there are far fewer documents.
LORD JUSTICE LEVESON
So all those documents are actually due to enter the public domain because they're statements or exhibits --
MR JAY
Well, some of them will, some of them won't. Can I give you a concrete example? The exhibits to Mr Mosley's witness statement have been provided to the core participants on the basis that they are confidential to the core participants.
LORD JUSTICE LEVESON
Yes.
MR JAY
The reason being is that although many of the exhibits are quite innocuous, they relate to the public pronouncements of the European Court of Human Rights or Mr Justice Eady, there are the two offending News of the World articles --
LORD JUSTICE LEVESON
There's no question of --
MR JAY
Those are not going to enter the public domain.
LORD JUSTICE LEVESON
There's no question of them entering the public domain for reasons that I've given several times, and secondly, they're not the sort of document that would remotely fall within the group that Mr Garnham is concerned about.
MR JAY
What Mr Garnham is seeking, on my understanding, although I haven't discussed this with him, but he can clarify my understanding if it's incorrect, is that as and when a document migrates from the private part of the site, which only we see, to the core participant part of the site, that document may be of interest in Mr Garnham's view to the officers of Operation Weeting. However, the Metropolitan Police have signed up to an undertaking whereby at the moment they only use the documents for the purposes of Inquiry --
LORD JUSTICE LEVESON
Yes, but we're actually at cross-purposes here because are we saying it is of interest to the Inquiry, the police investigation --
MR JAY
Yes.
LORD JUSTICE LEVESON
-- or are we saying actually we want it redacted for whatever reason, not necessarily because we don't know about it, but because it might impact adversely on the police investigation?
MR JAY
It may be that Mr Garnham's concern is that once he sees -- once the relevant officer in Operation Weeting sees an unredacted witness statement, which is now on the core participants' part of the intranet system, he may wish to have the opportunity to make representations that further redactions be made under Section 19 to protect the integrity of the police investigation. That may be his concern.
LORD JUSTICE LEVESON
All right.
MR JAY
I'm just teasing out, really --
LORD JUSTICE LEVESON
That's why we have to do it -- I'm happy to do it in this way, not only so that everybody hears it but also so that everybody, whether or not they're involved, can feel it appropriate to make recommendations if they wish to. Mr Garnham, you can say which it is. Is it because there is a statement that you've seen that actually you think will further the police investigation, or is it because there is a statement you've seen some details of which you think the police may want redacted under Section 19?
MR GARNHAM
The immediate prompt for this application is the second.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
I'm not keen to ventilate what it is in which statement in open forum for obvious reasons, but it's the second that prompts the application.
LORD JUSTICE LEVESON
Once you've done that, as Mr Sherborne would say, the cat is out of the bag and it's gone, and I understand that.
MR GARNHAM
Sir, that's the immediate prompt. Mr Jay is right to apprehend that in respect of the material on the public side of the divide he describes, I was also seeking permission for that to be shown to a police officer in Operation Weeting for the benefit of the police investigation, and we had offered in correspondence, the correspondence to which I referred, that that officer would be somebody who would sign the confidentiality --
LORD JUSTICE LEVESON
Subject to anything that anybody else may say, I have no problem at all about an officer who's fully cognisant with the police inquiry but who signs an undertaking seeing the statements so as to advise you as to what if anything ought to be redacted. I have no problem about that at all, but I'll hear everybody else. As regards the further step, in relation to those for the next two weeks who are, of course, Mr Sherborne's clients, I'll rise for Mr Sherborne to consider the matter and possibly discuss with you what the appropriate way forward is and you can identify the statements you're concerned with, because that will make the task of Collyer Bristow rather less intense if they have to speak to three people as opposed to 53 people. You can do that privately and then I'll come back to hear what you have to say.
MR GARNHAM
Yes.
LORD JUSTICE LEVESON
Right, thank you. Does anybody have anything to say about the first situation? That is, obtaining of the confidentiality undertaking that you've all signed from a police officer who is familiar with Operation Weeting, and therefore what might particularly cause prejudice, being able to give Mr Garnham instructions as to redacting some part of the statement for public purposes -- I mean, I'll have seen it and it will be in, but it will be redacted from public purposes if I make an order under Section 19(2). Mr Davies?
MR DAVIES
I don't, sir.
LORD JUSTICE LEVESON
Mr Caplan?
MR CAPLAN
No.
LORD JUSTICE LEVESON
Does anybody else have any observations to make about that? Right. So that's a given. Nominate an officer --
MR GARNHAM
Thank you, sir.
LORD JUSTICE LEVESON
-- and he can sign a confidentiality undertaking and give you instructions accordingly.
MR GARNHAM
Thank you, sir.
LORD JUSTICE LEVESON
I'll rise now for Mr Sherborne to take some instructions and so you can be a little bit less coded with him than you've necessarily had to be with me, and let me know when you're ready. (3.40 pm) (A short break) (3.46 pm)
LORD JUSTICE LEVESON
Mr Garnham.
MR GARNHAM
Sir, thank you for the time. The result of my conversation with Mr Sherborne is that we can arrange this. Provided the Inquiry has no objection, and I anticipate that it will not, we will do it between ourselves by his voluntarily letting me see these statements then we can make whatever submissions we want to you in the light of them.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
That deals with those statements.
LORD JUSTICE LEVESON
You'd better do that quite quickly.
MR GARNHAM
It will happen quickly.
LORD JUSTICE LEVESON
Yes.
MR GARNHAM
The second thing is the undertaking. The original letter which began this process from my instructing solicitor of 10 November proposed a willingness to sign a confidentiality undertaking, so that will follow suit and that provides no difficulty either. The third point I would raise simply in case it ever arises again, although it won't do this afternoon, Mr Jay suggested that there might be some difficulty about documents obtained under compulsion being passed to the police. I interpolate to say I'm not seeking that this afternoon. And he said there might be a difficulty because of the sort of Saunders line of authority. I would only say this in relation to that: Section 21 is qualified by Section 22. You cannot require somebody to provide a statement to the Inquiry that is incriminating of themselves.
LORD JUSTICE LEVESON
Therefore that might be the answer.
MR GARNHAM
That may be the answer. I say that just in case it needs to arise on other occasions. It need not today.
LORD JUSTICE LEVESON
If necessary and we're short of legal things to do --
MR GARNHAM
We can spend an afternoon on that.
LORD JUSTICE LEVESON
-- then we can think about that. All right, thank you very much. Mr Sherborne, that's all right, is it?
MR SHERBORNE
Sir, it is, yes.
LORD JUSTICE LEVESON
Good. I have a request of you, and it's not of the highest urgency but it is moderately significant. I don't think it will cause you too much work. But you have pointed to a number of particularly critical articles -- particularly important, I'm using the word critical -- articles in relation to a number of your clients and have made the point forcefully that there could be no public interest in this particular story and the consequences of harm were very real. And you said, I think more than once, that similar bylines were visible on the stories, in other words written by the same people covering different stories.
MR SHERBORNE
Yes, in relation to the Jefferies case and the McCann case.
LORD JUSTICE LEVESON
Yes. If you could pick out a number of specific examples, and it may be that your clients will have them very much in mind, and maybe they're collected somewhere, if it's difficult, say so, it may be that I will think about asking the specific journalists to deal with the very points you've raised. I'm not saying I will, but I think it's a potentially fruitful line of inquiry.
MR SHERBORNE
Sir, I'm very grateful for that. In terms of that specific point, namely the overlap between journalists who covered the McCann case and the Jefferies case, that is work which will take very little time to do, I can reassure you. I can certainly provide that within the next day or so to the Inquiry.
LORD JUSTICE LEVESON
Yes. I'm not asking you to give me 100 names, because the timeframe within which I'm operating will bite throughout, but you've presented one side of a picture very graphically, and I would just like to make sure that I understand whether there is another side and, if so, what it is, in the context of ethical decision-making at journalist level and at other levels. I can always pick these up with editors, most of whom I think are already likely to be giving evidence, but I just wonder whether in relation to some of them it may not be sensible to go a bit further. I'm not saying I will, but I'm saying that I think it's worth thinking about.
MR SHERBORNE
Sir, yes. We say of course the articles speak for themselves, but I can understand why the Inquiry might want to hear from the individual journalists as opposed to the editors as to why those stories were written.
LORD JUSTICE LEVESON
Yes.
MR SHERBORNE
As I say, I will provide those names --
LORD JUSTICE LEVESON
And the considerations that went into them.
MR SHERBORNE
Sir, yes.
LORD JUSTICE LEVESON
Because that's the other side of the coin. There may be no other side, and I take your point that the articles speak for themselves.
MR SHERBORNE
Sir, yes.
LORD JUSTICE LEVESON
But it's --
MR SHERBORNE
It is, and I'm sure that the particular core participants that this refers to would be interested to understand it, if there is another side to their story.
LORD JUSTICE LEVESON
Yes. All right. That's food for thought.
MR JAY
Sir, may I raise one issue? I haven't seen the text of the proposed undertaking the officer from Operation Weeting would be giving, that is to say solely for the purpose of indicating whether there are any Section 19 redaction issues, but it should be made clear that that is the sole purpose for which the officer can consider the witness statements at this stage and would override any other duty the officer might have to embark on a line of inquiry which might otherwise assist Operation Weeting in general.
LORD JUSTICE LEVESON
Yes, I think Mr Garnham understands that.
MR JAY
Thank you.
LORD JUSTICE LEVESON
And doubtless it can be drafted and you'll agree something and it will be signed and all that will be done very quickly too.
MR JAY
Yes, it will have to be done very quickly.
LORD JUSTICE LEVESON
It can be subject to an undertaking at this stage while it's sorted out. Anything else? We've managed to conduct a full day. I think it is the first of many. Thank you very much. We'll resume at 10 o'clock on Monday morning. (3.55 pm) (The hearing adjourned until 10 o'clock on Monday, November 2011)

Themes

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

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