Wednesday, 16 November 2011 (10.00 am) Right. Do I understand the order of the battle is first the National Union of Journalists and then the Guardian and then Mr Sherborne? Thank you. Right. Opening submissions by MS STANISTREET Thank you, sir. Yours is an unprecedented inquiry into the press that could have far-reaching implications for our industry, so we at the National Union of Journalists felt it was essential for the union that's the voice for journalists and for journalism throughout the UK and Ireland to play a central role. We were therefore very grateful to you for recently granting us core participant status. Can I encourage you to slow down a bit. Yes. Thanks. The NUJ is an independent union and has been representing journalists throughout the media industry for over 104 years. We're a democratic, lay member-led grass-roots organisation. It is members in our workplace chapels and our branches who shape union policy and direct priorities. We speak on behalf of our 38,000 members who work throughout the industry as freelancers and in staff roles in newspapers, news agencies, magazines, online, book publishing, in public relations and as photographers. Our headquarters are here in London and we also have offices in Glasgow, Manchester and Dublin. We represent members collectively where we have collective bargaining rights and recognition, and individual representation also forms a large part of our work. As well as our bread and butter industrial work, we campaign on issues ranging from quality journalism and defending public service broadcasting to fighting for protection of sources and press freedom. I shall say something briefly of my own experiences as a journalist and as a trade unionist, and in case it's thought by including these few sentences in the NUJ's opening statement I'm avoiding the possibility of challenge by cross-examination, I will exhibit this opening statement to a witness statement and the Inquiry team can consider, if it wishes, to call me as a witness at an appropriate time. I was elected General Secretary of the NUJ in April and took over the role in July. For the three previous years I was the elected Deputy General Secretary of the union and had previously been the NUJ's lay vice-president and president after having served on the ruling National Executive Council for eight years, representing all members of the union working in newspapers and news agencies. During that time, I was working full-time as a journalist. I joined Express Newspapers in 1999, working on the Sunday Express. During my time there, I worked in the city department as an interviewer and feature writer, then for the news desk where I worked as a feature writer and then books editor until I was elected to the full-time role of Deputy General Secretary in the NUJ. It was my experience as an NUJ chapel rep at the Express, where we operated a joint chapel between the Daily Express and Express and Daily Star titles, representing members individually and collectively in a whole range of issues, that galvanised my activism within the NUJ and gave me a deep insight into the issues facing journalists working in the press today. My team of officials represent and engage with journalists working in national and regional newspapers, tabloid and broadsheets alike, on a daily basis. It's vital that in an Inquiry reflecting on the problems and issues within our industry, that the concerns, the experiences and insights of ordinary working journalists are heard and I know you're very much alive to this. They are the workers at the sharp end who deal with the reality of life in a pressured, busy newsroom every single day. Our members strive on a daily basis to serve the public, balancing the need to inform, educate and entertain with the need to serve the competing and sometimes conflicting demands of publishers and commercial interests. It's a daily challenge and it's quite frequently a battle. The NUJ is currently making a good deal of effort to identify journalists to give evidence and to share their experiences with the Inquiry, however the stark reality is that in many workplaces there's a genuine climate of fear about speaking out. In order that it's not simply those who have retired or who have been made redundant and left the industry who feel able to make a contribution, we're working with the Inquiry team to ensure that journalists who wish to contribute to the Inquiry can give their testimony in confidence to afford them protection from retribution. The fear is not necessarily just of immediate punishment but of finding that a few months after your Inquiry ends, a journalist who has spoken out may find herself on a list of redundancies. We support your draft protocol on anonymity and will discuss specific measures in relation to particular witnesses with the Inquiry theme. Of course, predictably some of the newspaper owners are unhappy about this, but the reality is that putting your head above the parapet and speaking out publicly is simply not an option for many journalists who would fear losing their job or making themselves unemployable in the future. In our experience, that fear has been a significant factor inhibiting journalists from defending the principles of ethical journalism in the workplace, and in media organisations hostile to the concept of trade unions there's a particular problem. There's already been discussion of the important role journalism plays. Journalism is a force for good, a vital part of any democratic society. People choosing to enter the industry don't, believe me, do it for the money or the career prospects. They become journalists because they want to make a difference. They want to play their part in holding power to account, to shining a light in those dark recesses of society. They want to do their job well, do it professionally and they want to keep their communities informed and expose wrongdoing and the reason why we're all here today is because of excellent, dogged investigative journalism which has brought this scandal to light. Journalists do not, however, operate in a vacuum. It's important to place the examination of the industry's culture and practices in the broader context of the current state of the industry. The newspaper industry, particularly in the local and the regional press, has been in crisis over recent years. The scale of cutbacks, redundancies, casualisation of the workforce and entire closure of titles has made it a very challenging and insecure time for journalists. This has been the inevitable result of the entire economic model within the newspaper industry. Greedy employers have stripped profitable and once proud newspaper titles of their assets. When the days of 25, 30 per cent profits ended, rather than settle for more modest profits that would do nicely for most of our major blue-chips, the response of some of the major newspaper groups was to slash costs further, cut the bottom line, sacrificing quality and content in the process. This is not a sustainable business model and we're seeing the results of this bad management on a daily basis with ever more cutbacks and redundancies. These owners are playing fast and loose with our industry. You can't do that without sacrificing quality journalism, you can't do it without cheating readers of the newspapers they deserve and you can't do it without sounding the death knell of an industry that plays such a critical role in our society. In this context, the more resource-intensive areas of journalism such as specialist correspondence and investigative journalism have become something of an endangered species and a journalist's ability to get out there and research and deliver work thoroughly has been diminished. Agency copy is topped and tailed, press releases are churned out as news. The pressure on journalists to deliver -- I'm going to ask you to slow down again and I'll tell you why, because there are parts of what you're saying that aren't being picked up because of the speed at which you're speaking. Apologies. That's all right. The pressure on journalists to deliver is relentless, often to unpredictable and unreasonable timescales and without the resources to do the job well. Such pressures lead to shortcuts and can result in the abandoning of fundamental principles. That's why it's important for your Inquiry to understand the reality of newsroom culture and the pressures that some journalists in some workplaces have come under to deliver the goods, to write stories that are inaccurate or misleading. These practices are the product of the culture. You cannot separate the practice of journalism and the culture which underpins the industry. To paraphrase the Irish poet WB Yeats, you cannot separate the dancer from the dance. It's not journalists who develop and foster the culture in any one newspaper group. In any workplace, where does the power reside? Not at the bottom, where the majority work to get the job done. It's at the top. In journalism, the reality is that there's often a stark expectation from on high: deliver the goods, get the job done, bring in the story whatever the means. If you don't, well, the consequences are often simple and clinically brutal. At the heart of any newspaper culture is the editor. What he or she says goes. For anyone who's worked in a newsroom, the concept of an editor who didn't know just what their troops were getting up to is laughable. Editors rule the roost. They set the tone, not just in the editorial line of their newspapers but in the way that the entire newsroom operates. What's accepted, what's not, the tone of an editorial conference, whether bullying, which is sadly all too commonplace, goes unchecked, the dispensing of praise or the nature of the inevitable roasting when the goods aren't delivered. To imagine editors as mere bystanders whose underling reporters run rings around them would be fanciful in the extreme. That's why, to anyone with any journalistic nous, the peddling of the line that hacking was the action of a single rogue reporter operating in splendid isolation was as daft as it was unbelievable and that's why it's vital when considering the culture and the practices of the press to examine the broader context of how that culture is forged and cultivated. For NUJ members, a significant way in which they input collectively into that workplace culture is through their workplace NUJ group, the chapel, as we call them, but that can only happen in places where there is a functioning organised chapel. This mainly happens in places where there's a legal recognition agreement in place and a collective bargaining agreement. Mere membership is not enough. There are many newspapers where journalists feel very anxious about their employer knowing that they're members of the NUJ or that they're active in the union outside of work. Nor is the limited right to representation in disciplinary or grievance proceedings enough. The only way a union is able to sufficiently and actively protect the interests of its members is by the establishment of genuine collective bargaining. That process involves putting other issues central to a journalist's work, whether that's staffing resources, commercial pressures, bullying behaviour in the work place or ethics, squarely at the negotiating table. Believe me, senior executives in this industry only sit down with our workplace reps and with NUJ officials because they're obliged to, because we have recognition and an agreement on collective bargaining. Whilst I'm sure there are many employers who would rather not have to bargain collectively, there are many media employers who have a particularly intransigent view in this regard and will go to great lengths to block the NUJ from its titles. Take Rupert Murdoch. He created and funded his own proxy union, the News International Staff Association, which was later refused a certificate of independence by the certification officer because of its lack of independence from the employer. This was established on the eve of the legislative changes being introduced that saw the restoration of trade union recognition rights, all to keep the NUJ and our sister unions out of Wapping. Staff at News International, mostly on the News of the World, who have been dismissed or made redundant in the wake of the hacking scandal, have learnt in recent months to their cost the impact of not having strong and independent workplace representation. There cannot be a genuinely robust and confident representation from any organisation that's not independent whereby means of its funding and actual existence is effectively in the pocket of the company's owner and senior executives. A well-organised union provides a counterbalance to the power of the editors and the proprietors. It can limit their excesses and give journalists the confidence to raise their concerns. The collective can tackle stress and bullying and defend principles of journalistic ethics as well as dealing with pay and terms and conditions. One of the many members to come to the NUJ in the wake of the closure of the News of the World was Derek Webb. He, has you may have seen, told his story to BBC's Newsnight in some depth last week. Mr Webb was hired as a private detective by the News of the World and carried out surveillance for the company for many years. However, he alleges that in the wake of the arrest of the paper's royal editor, Clive Goodman, he was taken aside by a senior executive on the News of the World and told he had to "stop being a private detective and become a journalist". The same senior executive also apparently told him that he must join the NUJ and acquire an NUJ press card. This he duly did. For the NUJ this is a breathtakingly cynical move on behalf of the News of the World but also an interesting perspective on an organisation that's so hostile to the NUJ. Clearly in the minds of senior executives at News International, presumably a proper journalist is one who is a fully fledged NUJ member with a union press card rather than the ones News International dispenses to its staff. You suggested earlier this week that the essential question in this Inquiry might well be: who guards the guardians? The NUJ can help here. For one of the key ways of ensuring "systems within an organisation which promote or induce good behaviours and tend to expose bad behaviours", to quote Mr Jay, is for journalists to have the protection of a trade union. The establishment of collective bargaining is one vital means of preventing the unacceptable "culture, practice and ethics" under investigation in this Inquiry should not be seen as some form of special pleading on behalf of a vested interest group, for the right to collective bargaining is as fundamental as the right to privacy under Article 8 of the Convention and the right to freedom of expression under Article 10. Article 11 protects everyone's freedom of association and "the right to be a member of a trade union for the protection of his interests". In a unanimous Grand Chamber decision of Demir and Baykara v Turkey, the European Court of Human Rights concluded: "The right to bargain collectively with the employer has, in principle, become one of the essential elements of the 'right to form and to join trade unions for the protection of [one's] interests' set forth in Article 11 of the Convention ..." The interrelation between Article 11 and the right to collective bargaining had been earlier described in Wilson and others v UK, a case of an NUJ member which arose out of the considerable steps Associated Newspapers took to derecognise and disempower the NUJ in the 1980s. In that case, the court, which included Lord Phillips, as he now is, held: "The essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members' interests. Furthermore, it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory." The court held that the UK had a duty to protect that right. We don't expect to persuade you to recommend legislation to protect collective bargaining for journalists. We will seek to persuade you to make recommendations which recognise the vital role the NUJ has in protecting journalists from, amongst other things, pressure to engage in unethical practices. We will produce a note on the legal matters referred to here, which we hope you will find of value. In case it might be thought that the empowerment of trade unions to protect the interests of their members at work is not the stuff of public inquiries such as this, the NUJ would draw attention to the recognition given to the role of trade union representatives in the protection of the safety of employees by Lord Cullen in the Piper Alpha Inquiry report, a role which finds statutory form in the Offshore Installations Regulations 1989. We at the NUJ believe that there's a clear link between a strong trade union presence in a workplace and a strong ethical awareness. Collective trade union representation is a moral human right and journalists should not be denied this right in our newspapers. I can speak from personal experience when I say that having the collective confidence of a robust union presence can make an enormous difference when individuals want to speak out on matters of journalistic ethics. In September 2001, when I was one of three NUJ chapel reps at Express Newspapers, we took collectively the unprecedented step of making a complaint to the Press Complaints Commission directly about the reporting of the Daily Express' coverage of asylum seekers. Some journalists at the title, particularly those involved in the coverage, felt so upset and so angry about the racist tone of the Express's coverage and so powerless to individually do anything about it that they were considering leaving their jobs. The NUJ chapel met and issued a public statement about the hate-stirring front page headlines, one of which was "Asylum seekers run for your lives", and what we felt to be editorial interference from the proprietor. It wasn't the only public stance NUJ members felt impelled to take. In 2004, the chapel once again complained to the PCC over the inflammatory and blatantly inaccurate coverage of so-called gypsies coming to the UK during the enlargement of the EU. In both cases we believed the paper was guilty of breaking the PCC's code of conduct on discrimination, which states: "The press must avoid prejudicial or pejorative reference to a person's race, colour, religion, sex or sexual orientation or to any physical or mental illness or disability." Again in 2006, journalists on the Daily Star walked off the editorial floor to hold an urgent chapel meeting and demand that a spoof page called the Daily Fatwah, whose only purpose was to mock Islam, was pulled. The management backed down and the page was indeed pulled that night, and their collective intervention on a matter of journalistic ethics made a difference. In each of these cases a common factor in the offending coverage was editorial decisions on the content were being made on the basis of the resulting spike in sales. It would be impossible for a single journalist to tackle this. Another common factor is that the PCC did absolutely nothing to help. In fact, our complaints merely warranted a short written reply from the then chair, Sir Christopher Meyer, saying he was satisfied that no journalists were put under pressure to write inaccurate or unethical material. Perhaps he got that expression from the paper's then editor who sat with him on the PCC, but he certainly didn't it get it from any journalist at the Daily Express as no one from the PCC even contacted us to investigate. The NUJ is a trade union which has its code of conduct at its heart. It was established in 1936 and is embedded in our rule book and by signing our membership form it's made clear to journalists that they're signing up to abide by the code. We have an ethics council which is a key part of our union structures. We run an ethics telephone hotline which journalists regularly access to gain advice and support. Of course as part of that code, we commit to robustly defending the public interest test and the ability of journalists to do their jobs freely and professionally and we'd vigorously defend members using other means, sometimes of course unpalatable and unpopular, if it's in the pursuit of a story that is clearly in the overriding public interest. That's the duty of a journalist engaged in informing the public. But our code is also about public accountability. It commits journalists to do nothing that would intrude into anybody's private life, grief or distress, unless justified by overriding consideration of the public interest. It commits journalists to do their utmost to correct harmful inaccuracies, it commits them to obtaining material by honest, straightforward and open means with the exception of investigations that are overwhelmingly in the public interest and where that evidence can't be obtained by straightforward means. Clearly the industrial scale of the phone hacking at News International and the breadth of the scope of the stories generated as a result did not comply with the principles of the NUJ's code of conduct. It is in that context of the cut and thrust business of journalistic ethics and the commercial and the editorial pressures that our members can face that we've been campaigning for some years now for a conscience clause in contracts of employment, so when journalists stand up for a principle of journalistic ethics they have a contractual protection against being dismissed, and crucially so they have the confidence and the security to put their head above the parapet in the first place. The idea of a conscience clause was raised by the NUJ when giving evidence to the Commons Select Committee into privacy and media intrusion back in 2003. The committee recommended such a clause but it was rejected by both the PCC, which has no say in industrial matters, and the Society of Editors, which does. The text of our clause is: "A journalist has the right to refuse assignments or be identified as the creator of editorial which would break the letter of the spirit of the NUJ Code. No journalist should be disciplined or suffer detriment to their career for asserting his/her rights to act according to the Code." That's why the NUJ does put forward special pleading on the issue of a conscience clause. The introduction of such a contractually binding protection will be a great advance for journalists and for journalism in the UK. We'll come on to the detail of press regulation and any future model in the later part of your Inquiry, but it's the view of the NUJ and its members that the PCC has failed, abysmally so. We would absolutely resist any changes that would lead to anything akin to the licensing of journalists or anything that would in the slightest dilute press freedom. That would not be a solution to the problems the industry finds itself in. But for years we've had the media bosses' model of self-regulation. It's one that excludes both the producers and the consumers of the media output and represents only the owners. The general public and journalists themselves have had to contend with what's been little more than a self-serving gentlemen's club and not even a club that all newspapers are obliged to join, as illustrated so finely when Richard Desmond's Northern & Shell company walked out of the PCC. It's a model that's failed. But there are models out there, models that have teeth and provide more than a thin veneer of accountability on the owners' part, models that hold newspapers to account and genuinely deliver when it comes to protecting the interests of the public and of journalism. An interesting and relevant example is the establishment of the Press Council of Ireland in 2007. The NUJ played a key role in the establishment of the PCI, which is based on a model that's more co-regulation than self-regulation. We're represented alongside editors and civic society nominees on the basis of full equality on the Press Council. Our own Irish Secretary Seamus Dooley sits on the council's code committee and it's interesting to note that the very same newspaper groups whose executives won't sit in the same room as the NUJ in the UK manage to work quite happily and collaboratively across the water in Ireland as part of the Press Council of Ireland. Just yesterday our Irish Secretary attended a meeting of the Finance and Administrative Committee of the PCI alongside a senior represent of News International. Irish journalism and Irish society has benefited from such enlightened co-operation in the public interest. The increasing consolidation of media ownership and the disproportionate power and influence this provides with it also needs to be considered by this Inquiry. When newspaper titles are bought and sold, there should be a rigorous public interest test. The highest bidder shouldn't be allowed to simply walk away with our national titles in their pocket and the accompanying power and influence that brings. Currently there's a dearth of genuine scrutiny and most sales are usually completed on the basis of a secretive sealed bid where it's only the money that talks. It should not be possible for our titles, whether that's a national newspaper title or a local newspaper, to be bought and sold on the whim of one man or corporation or used as pawns to further an individual's commercial or ideological interests. A media owner shouldn't have our police and our politicians in a stranglehold for fear of their personal peccadillos being splashed over the front pages of a newspaper. No media group should be allowed to achieve such dominance. I've given some examples today of how a robust, well-organised NUJ presence can make a real difference and a positive contribution to the culture within a newspaper and to the broader industry. We're currently engaged in efforts to encourage our members to come forward and play their part and enable you and the Inquiry team to have as good an insight as possible into the reality of their working life and newsroom culture for journalists working across the industry. This will provide examples from across the newspaper sector, including testimony from journalists who can shed real light on the culture within the News of the World, on cases of bullying at senior level, all key factors we believe led to the scale of hacking within the newspaper. I hope to be able to submit more detailed written testimony arising from this work in the coming weeks. For us, this is an Inquiry that will shape the future of our industry and it's vital that the views of working journalists and journalism are heard and seriously considered. The NUJ will do all it can to assist and to ensure our members can concentrate on what they do best and what gets the vast majority of journalists out of bed each day, which is serving up quality journalism that informs and entertains. Thank you for giving us the time this morning. I've deliberately not interrupted. Barristers get used to being interrupted but I didn't want to interrupt you, but I wonder if I could just ask one question based upon what you've said. You present the picture of journalists, which I'm sure is right, entering your industry to make a difference and holding power to account. I equally understand the other dynamic of people fearing for their future employment. But one of the features which has been already identified is that there was a great gap between the Guardian's exposure of hacking and anybody taking it up of some 18 months, and I wonder, if everybody knew about it, why it wasn't that one of your fearless journalists didn't do something about it. Well, I think I've outlined how impossible it is for many journalists individually to raise these issues. Many of our national newspaper titles don't have NUJ collective representation or a workplace culture where individuals feel that they can raise things and not be fearful for their jobs. Just because you recognise, I don't know, in how many of the national titles are the NUJ represented? We're represented at the Express titles, at the Guardian, where there's a very strong, robust NUJ chapel, where the vast majority of staff at the Guardian are members, I think it's 95 per cent of the workforce there. We're represented at the Telegraph. We're not represented at Associated Newspapers -- or recognised, rather, at Associated Newspapers or News International or the Mirror national titles. We are represented, have recognition agreements with many of Trinity Mirror's local newspaper groups. Okay. So what percentage of the industry do you -- In national newspapers? About half. Yes. All right. I'm sure we'll get a great deal more as the Inquiry proceeds. Thank you very much. Right. I think we can probably proceed to hear Mr Rusbridger. I'll offer you the same courtesy that I don't offer to members of the bar, which is to keep quiet. Alternatively, you may prefer that if I have a question which arises on anything you say, I ask it and interrupt, but I'm happy to take my lead from what you would prefer. I'll take you up on your promise not to interrupt, if you ask questions at the end. You prefer me to do that? Yes. Right, very good. You ought to know that it is a courtesy which I won't extend to the bar. They're used to thinking on their feet. I'm not. Opening submissions by MR RUSBRIDGER Thank you for this opportunity to address the Inquiry at such an early stage. I wanted to add to some of the context which we hope this Inquiry takes into account as well as setting out Guardian News and Media's main areas of concern. First, we hope that it's apparent to all that the events that led to this Inquiry were shocking and immensely damaging. Damaging because they impacted on the trust in all journalists. Shocking for what they revealed about one powerful and dominant company, about the responses of the police and the flawed nature of regulation, about the limitations of Parliament and the initial unwillingness of much of the press to write about what had been going on at the News of the World. There was, in short, a failure of the normal checks and balances in society to hold power to account. This Inquiry is being held, as you know and you've heard this morning from the General Secretary of the NUJ, at a time of existential threat to the idea and sustainability of journalism itself. Commercially, newspapers may struggle to survive in the form in which they currently exist. Digital media have sucked advertising out of the printed press, circulations are declining at a rate of up to 10 per cent a year. While digital audiences are growing fast and the possibilities are great, no digital revenue model yet offers certain hope of maintaining editorial endeavours at anything like their current levels. Editorially, the notion of journalism itself is being transformed. Until recently, a newspaper was something produced by a relatively small number of people in the know for a large number of people who weren't in the know. Now virtually everyone has the capacity to publish and to inform themselves. The once a day deadline has been replaced by a 24-hour continuous news cycle, newspapers are moving from text to a combination of video, audio and data, as well as text, so there's a convergence of media which will have implications for readers and which may well have implications for regulation. What was once a one-way publishing process is now more responsive. Most editors are live to the potential benefits of harnessing the ability of others to contribute. They're beginning to think: if we add what you know to what we know, we may end up with a fuller, better picture. We also live in a world in which every reader becomes a potential fact checker. Social media allows anyone to respond to, expose, highlight or contradict what we write and we have the choice whether to pretend that this world of response doesn't exist or to incorporate it into what we do. The more we incorporate it, the more journalism becomes, as it were, plastic. There will be less pretence that we are telling the whole truth and nothing but the truth about a story frozen at the moment that we published it, what Walter Lippman in 1922 called the confusion between news and truth. A journalist today lives with the knowledge that there will be an external reaction to much of what she or he writes within minutes of publication. Journalism today is often less a snapshot, more a moving picture. Three more brief pieces of context, especially given the title of your first module. First, readers are, as in the rest of their lives, consumers. They expect organisations, whether public or private, to be responsive and accountable. Newspapers have often been poor in responding to challenge. Secondly, privacy is not a fringe concern, it's mainstream. Virtually every citizen is becoming attuned to what a significant concern privacy is in the modern world. Anyone who has a Facebook account, who uses Google, who is treated by the NHS, who talks to the police, who has an Oyster card, who drives too fast, who shops at Tesco, who has insurance, who puts their bins out on a Thursday night, who banks online, who has a mobile phone, everyone is more conscious about privacy and how organisations, public or private, handle it. Thirdly, we as citizens are more conscious of the idea of a rights-based society with consequential responsibilities. I hope that adds to the context. Now a few suggestions, the first of which relates to the events before July 2011. Clearly a major focus of your attention in part 2 will be the phone hacking itself. Equally important, in our view, in part 1, is to look at the failures of the 18-month period once the so-called "rotten apple" defence had been exploded by the Guardian, ie from July 2009 to late January 2011. These months are, it seems to us, worth examining because they show the dogs that didn't bark. Why didn't they? What accounts for the reluctance of the police to investigate phone hacking properly even in July 2009? Why did it take four inquiries before they took it seriously? Why did senior officers make untruthful statements about what had happened? Were MPs intimidated or put under surveillance or threatened? Why did the PCC fail in its attempts to get at the truth? Why initially was there such a widespread reluctance amongst other journalists to touch the story? Why did it take an American paper to see the significance of an issue to which so many British journalists appeared blind? To give one example not yet raised I believe in the Inquiry: no British news editor apparently considered it interesting that a former News of the World journalist was in November 2009 awarded the stunning sum of £800,000 for suffering what an employment tribunal regarded as a culture of bullying at the newspaper by its then editor, Andy Coulson. This record payout and verdict against the man who was about to walk through the front door of Number 10 were not judged to be newsworthy. But, and we've just heard this from the General Secretary of the NUJ, a culture of bullying in any organisation is important and it may be highly pertinent to ask whether journalists on the paper felt intimidated and did things they knew to be wrong. I respectfully suggest the Inquiry might like to ask whether this was the case within the News of the World and, if so, what safeguards can be built into news organisations in future so that journalists already working under ever-increasing pressure and in the context of financial insecurity can exercise some moral choices about the things they can't square with their consciences. The answers to these questions about the response to the phone hacking revisions are vital ones for anyone who cares about the health of a democracy. Did people both internally and externally feel a fear of News International? Was its influence across many aspects of British political and cultural life simply too dominant? How did News Corp leverage its commercial, political, journalistic and as we now know outsourced criminal muscle? The second issue relates to internal practices, and particularly those which relate to an honest recognition of what journalism is. In my statement to your Inquiry on press freedom last month, I quoted David Broder, the former Washington Post commentator, and his definition of what a newspaper was. He called it: "... a partial, hasty, incomplete, inevitably somewhat flawed and inaccurate rendering of some of the things we heard about in the past 24 hours ... distorted despite our best efforts to eliminate gross bias by the very process of compression that makes it possible for you ... to read it in about an hour." That passage and exposure to the American tradition of public editors or ombudsmen inspired me to appoint Britain's first readers' editor in 1997 and we note with encouragement that since the start of your Inquiry, two other newspaper groups have decided to publish regular corrections and clarifications on page 2. We would be very happy to share with you our thinking and experience based on nearly 15 years of running a truly independent column, and the value that such columns bring to the newspaper and for readers. This very local, responsive form of regulation, what counsel to this Inquiry termed, I believe, internal regulation, seems to us the cornerstone of responsible journalism and has a material impact on culture, practice and ethics. Thirdly, we've already suggested that the industry might profitably learn from the thinking of others who face similar challenges in relation to ethical dilemmas. You're aware of and counsel has noted the questions which former GCHQ director Sir David Omand suggested any intelligence operation should consider in relation to intrusions into privacy: the harm test, the public good test, the proportionality test, the need for due authorisation and the bar against fishing expeditions. Should you find it helpful, we would like to explore this further. In particular, ways of demonstrating that proper questioning and authorisation had taken place before publication. It seems to us that this is an extension of the sort of pre-publication consideration and precautions which many of our reporters already use under the so-called Reynolds doctrine in defamation. A mention of defamation leads us respectfully to suggest, fourthly, that you consider the extent to which your own thinking in respect of regulation could be dovetailed with the current consultation on the defamation bill before Parliament. I recognise that both you and counsel have stated that this Inquiry does not intend to look at the defamation bill. However, our defamation laws, widely considered to be slow, costly and illiberal, are often used as a sledgehammer to crack a nut which could equally well be solved by a properly recognised system of mediation within a system of press regulation. So if you're minded to entertain thoughts of radical reform of the latter, it might be useful to canvass views on how you could draw on an awful lot of recent and creative thinking about our libel laws. Indeed, your reference yesterday to mechanisms for dispute resolution fair and cheap I believe are at the heart of this. We could stick an M for mediation in PCC, maybe call it the Press Standards and Mediation Commission. It could then be a one-stop shop disputes resolution service, so that people seldom had to go to law to resolve their differences with newspapers. It would be quick, responsive and cheap, and we could even make this a carrot to tempt people into the fold of independent regulation, ie newspapers that signed up to it would have clear advantages over newspapers that didn't. Fifthly, and on regulation more broadly, it will come as no surprise to this Inquiry that we weren't impressed by the way that the PCC handled phone hacking. We said in November 2009 that it was misleading to call the PCC a regulator and we note that the incoming chairman, Lord Hunt, has gone further. It is absolutely not a regulator, in his view. So it could be argued that before we abolish self-regulation, we should first try it. No one has any quarrel with the job the PCC does in mediating complaints. Many people think its code is a good one, if a little too preoccupied with exposing iniquity, and that its adjudications form a coherent body of caselaw. Against that, its governance looks opaque even to people within the industry. Its rules on so-called third party interventions are difficult to follow. If it were not merely a complaints-driven system but a more proactive regime which monitored, investigated and encouraged cultural change, it might make systemic abuse less likely to occur. Its attitude towards privacy, including informal pre-publication advice, is not at all clear and it's a mystery as to why it launched an inquiry into something that it was completely ill-equipped to investigate. It was clearly lied to by the industry's main player, yet appears to lack the powers or the will to do anything about it. So while we think there are useful things to build on, we don't agree with those who think that everything is currently broadly okay subject to a touch on the tiller. A new regulator clearly has to have teeth, the power to intervene and investigate meaningfully and to impose significant sanctions. I note that you have questioned the overly binary debate of statutory versus self-regulation and we agree. If statutory regulation implies some form of state control or licensing of journalists, we would oppose it. The crucial issues, it seems to us, are funding and cost, the expertise/independence of those who run it and serve on it, and that it regulates the whole market, subject, of course, to the definitional difficulties of describing what the market is or will be. If statute can help make independent self-regulation work well, then we would welcome suggested use of statute to be scrutinised properly against concerns of press freedom. For example, there may be carrots and sticks that once recognised in the law or by the courts solve several of the challenges you have already spoken of in making non-statutory regulation work. As discussed above, a PCC successor might offer a mediation and arbitration service covering libel. It could also deal with privacy. Central to both would be a workable and agreed definition of the public interest that not only do we as an industry agree with but should also be prepared to argue in any forum. Privacy is more difficult than libel in two senses. It challenges the industry with the degree to which they would tolerate prior restraint, and however little we like the developing jurisprudence of the courts, there is a problem that the further a regulator diverges from the remedies available in law, the less likely it is that claimants will use the services of the regulator. Finally, and this speaks to all the modules, it seems to us that there's a pressing need to examine the issue of plurality and competition framework. Only last month the tiny family-owned Kent Messenger Group was prevented from taking over seven Northcliffe titles because of the distortion of the newspaper market in East Kent. Yet, until the post-Milly Dowler intervention of MPs in July 2011, there appeared to be nothing anyone could do to prevent News Corp from effectively doubling its already remarkable dominance of British media by acquiring the 61 per cent of BSkyB it didn't already own. If you come to the view that there was a genuine fear of News International in public life, partly, but only partly, on account of what private investigators and criminal figures were employed by them to dig up, then it's important, we submit, to recommend a regulatory and legal framework which prevents media companies in this country from acquiring too much dominance. All journalists worry about any form of interference in freedom of expression and you will have picked up on a widespread anxiety about whether new forms of regulation might inhibit us. From one point of view, no one currently gains very much from regulation. You might think the Financial Times doesn't really need the PCC to make sure that it stays on the ethical straight and narrow. The Northern and Express titles showed just what they thought of constant criticism by the PCC by walking out of it. Some regional and magazine editors see little gain and much expense. The PCC, for all its failings, was born from the view that there was an overriding imperative to agree a common professional and ethical code to which we would not merely pay lip service but which would actually inform everything we did. Only by acting together could we repel the people who really were looking for any excuse to tie our hands, and so we lashed ourselves together in order to be stronger. I think the public has also gained from this, and in the aftermath of an episode in which thousand of members of the public were illegally targeted by journalists, it's important that we keep them in front of mind at all times. The coming period of examination of the press will doubtless be an uncomfortable one in some respects, but we're sure that you will have in your mind the good things that journalists do which more than ever need protection, as well as the work of the 99 per cent of British journalists who wouldn't have a clue how to hack a phone, who don't go to work to snoop into the private lives of others. And it's our hope that with creative thinking you and your team can find ways of bolstering all the good that flows from the best journalism while cutting out the worst. Mr Rusbridger, that sounds like a target in itself. I'm conscious and have been conscious from the various presentations that you've made, both the seminars and the speeches you've given, that this is a topic which has obviously exercised your mind for some considerable time, and therefore I would very much welcome not merely a restatement of the problems, which I am starting to get to grip with, but also some help with solutions that work for everybody. Nobody need convince me that the vast majority, the overwhelming majority of journalism practised in this country is very much in the public interest and has the public interest very much at its heart. But I think you're right, as indeed everybody else has realised, that there is a distance now to go which we can't ignore, and which we ignore at our peril. So let me just ask you a few questions about what you've said, and if you can't answer them now, that's fair enough, I just want them to be thought about. When Mr Jay opened the case, he spoke about these two narratives, the positive and the negative, and I've heard not surprising concern expressed by some of the core participants about anonymous evidence and I understand that, and from a background of the criminal law where anonymity has caused enormous problems, I recognise the issues that are thrown up, but how am I going to get to the bottom of the culture which is hinted at, which is spoken of this morning, unless people are prepared to say it? And how am I going to help those that are concerned about the potential impact that that will have upon them, and their livelihood, which is a not at all ignoble concern, to try and expose what needs to be exposed so that we can get an idea of the corners of the problem? So that's the first series of questions that I have. The second is the slightly different picture that some of the media representatives portray to the picture presented by others. It's encapsulated in the concern that was expressed at a very early stage about lack of tabloid experience, and by tabloid I mean red top rather than including in that description the size of the paper upon which the newspaper is printed. That's not what I'm talking about, as everybody understands. Nobody has suggested that the ethics of those that are mass market newspapers should be different to those which are rather more targeted, and that seems to me to be right, but there is no doubt, it seems to me, that concepts of privacy about which you spoke are differently perceived by different titles, and I need to know how to address that. I need to know how I should be thinking about the concept of privacy, and to what extent obviously those who have been affected by issues of privacy will have extremely strong views, and where the balance is. I think that's a struggle. You mention what safeguards can be built into news organisations so that journalists can exercise moral choices. That echoed something that Ms Stanistreet said about the conscience clause, but is it appropriate for me to be requiring that? Is that a way forward? I'm very concerned about the extent to which the law ought to be prescribing any of these things, not least because that itself impacts on the freedom that I have no doubt is critical to the exercise of journalistic responsibilities. Then you talk about oversight and governance, which I've already mentioned. If there is to be a public benefit test as I believe there should be, then it obviously has to be subjective if the journalist and the editor has to believe it, but secondly, is there place for some objective criteria and a demonstration of oversight that establishes that it has been thought about? It will come particularly to the fore where stories don't actually prove themselves. You could take a story such as the cricketing revelations recently and say, well, that demonstrates, and indeed it does demonstrate, the power of investigative journalism, where there was a real public interest. But one has to be able to make that decision before one knows the result of the test. In other words, you have to have some mechanism to decide this line which is going to involve blagging and steps which might otherwise be a legitimate subject of complaints, is overridden by public interest, even if in the end you don't get the lollipop because nothing comes of it, and yet it then comes out. That's another issue and that's an issue which has to be tested at various stages. The problem about pre-publication authorisation, just to raise a concept -- and I'm afraid you are now getting a whole series of questions which is really, of course, addressed to everybody and come out of everything that everybody's said, but because you're the last core participant, you're going to get it from me -- is how one is going to test some sort of authority. I mean, I know there's been a very real concern, and indeed Mr Mosley has pursued through to Europe issues of notification, but on what basis would that decision be made? Would it be made on the basis of the story that the press wants to put in the public domain or would it require some detailed examination of the facts to see whether that story is justified? I'm not answering these questions, I'm merely asking them. Let me just carry on to the next point. I think there is a great deal of scope in finding some mechanism that allows for the resolution of disputes between members of the public and the press short of the courts, because it's become so expensive or so dependent upon conditional fees that it isn't available to many. I would like to investigate the idea of having some sort of service that does that, that ties into the law and that runs parallel, because I'm not going to be one that cuts anybody out from coming to law, but I do feel that everybody could benefit from some mechanism -- at least I think I feel; I'm only beginning and none of these views are formed, they're merely thoughts -- as to how one can set something up that is for the benefit of everybody. You mention a carrot and a stick, but how am I going to persuade those that don't even subscribe to the PCC that it's a sensible approach? And how am I going to involve that other great media outlet now, the Internet, to buy in? You pick up the point about teeth, and my concern about the binary issue, and I'm sure that the approach -- no, I can't say I'm sure. I feel it's likely that the approach is going to require something rather more nuanced than one or the other, but how can that work in a way that doesn't -- and if I say this once a day, I hope people will believe me -- doesn't impact on the freedom of the press and the freedom of expression, both of which I believe are absolutely fundamental to our society, and I will carry on saying it because that is absolutely my view. Then you mentioned the competition. The word plurality came into my terms of reference quite late in the day and raised monumental problems, but how is one to do that? And even if we are where we are, how is one to take that forward in a way that respects independence and takes the decision-making into an area that is cognisant of those problems? So they're just a stream of consciousness, really, based upon things that you've said but also that I've heard this morning and heard over the last few days. I don't ask you to answer this examination paper immediately, but if there's anything that you do want to add, because some of those I might have asked as questions while you were speaking, you're very welcome to do so. Otherwise, everybody can take on board what I have said and think about the ways in which we can address them in the weeks that are to come. I want this Inquiry to mean something. I am, and I repeat, very concerned that it should not simply form a footnote in some professor of journalism's analysis of the history of the 21st century while it gathers dust. This is an opportunity for your industry, your profession, and I'm very keen that it's used as profitably by everybody so that the vast expense that all are incurring is not wasted. That was a speech I didn't expect to make and wasn't planning, but I hope that it's of value. If there's anything you want to add to what I've said, I would be very grateful. Thank you for responding so creatively to what I said, and if I just give you some brief reactions to what you've said to me and then we can consult and respond more fully. On the point of anonymous evidence, I think that is clearly a difficult one. The reason that Nick Davies and the New York Times and later Panorama and Dispatches, ie journalists were able to get at this story in a way that the police and the PCC weren't was because they spoke to journalists off the record. So when the New York Times turned up in town, we said to them, "If you find and speak to enough people on the News of the World, they will tell you the same thing that they told Nick Davies", which was that this stuff was going on, that it was known about, it was rife and it was ingrained in the paper. The New York Times managed to get two journalists to speak on the record, and the third police inquiry immediately announced they would interview these witnesses as suspects under caution, and of course that got nowhere. So there was a contrast between the people who were trying to get public evidence and didn't get to the truth, and the people who took off the record evidence and did get to the truth. That makes an assumption, actually, but I take the point. Yes, well. No, I understand the point. I think it's inevitable, and I hear what the General Secretary of the NUJ said about the fear of people -- I mean, there are two factors that are going to be at the back of people's mind. One is the retribution factor, which Michelle Stanistreet talked about, which is you're going to be unemployable if you say bad things about the industry in front of this committee, and the other obviously is that if people were frank the police are going to come along and arrest them. So those are two difficult factors which you're going to have to think about and I know you've given a lot of thought to already. And we can think further. On the tabloids versus the broadsheets and privacy, it's true that there is a divide between different types of newspapers, and broadly and crudely, the so-called broadsheets have been more interested in the law of libel and the development of the so-called Reynolds principles, and the tabloids are broadly less interested in libel, use that less and are more threatened by privacy issues. When asked by the House of Commons and the joint committee looking into privacy, my answer has always been that we haven't yet been -- we get the injunctions that everyone else gets about privacy, but no one has yet tried to stop the Guardian from writing about anything on the basis of privacy, and when I gave evidence with John Witherow, the editor of the Sunday Times, before the joint committee the other day, he said more or less the same. He said he thought the balance at the moment was about right. But there are different business models involved and I think the only way it's going to work is for the industry to come together around a public interest defence that they agree to and are prepared to defend. It's been quite striking to me that in the rash of privacy injunction cases in the courts earlier this year, if you do an analysis of them, and there's a handy analysis sitting on the Guardian law site, in most cases the newspapers don't argue that it was in the public interest as defined by the code, so I think we have to have a public interest defence that we believe in and are prepared to argue and if we're not prepared to argue then that tells you something -- And it must recognise -- I'm sorry, I'm now interrupting, but it must recognise, mustn't it, that different newspapers have different audiences who are interested in different things? That is true, and I take on board all the things that my colleagues say about the fact that the commercial model of some newspapers is built on an entirely different kind of content, but it's a slippery road if you go down that argument too much because it ends up at the News of the World. Unless you have universal principles around which we agree, and this is the business of how we lash ourselves together in industry, about things in which -- where we come from different starting points, it has to be around a common idea of what the public good and public interest is. And we must mean that. Including arguing it in court. On the conscience clause, again off the top of my head, I would have thought there would be things that would help this tribunal in the provisions of whistle-blowing, so lots of companies do have whistle-blowing clauses built into their governance, and -- There's now legislation for it. Quite. So there must be something there, but I'm not a lawyer and that's something on which I shall take further legal advice. On the public benefit test, I think it is similar to the Reynolds test, which, as broadsheets, we're quite used to dealing with now, so the best investigative reporters on the Guardian know that they have to answer -- they may be asked these questions if they want to avail themselves of the Reynolds defence. It's about who the source is, what's the motive of the source, what's the quality of the information, have you put the information to the people you're writing about in advance, have you given them time to respond, have you included their response? You're familiar with the Nicholls test. Although I think as an industry we would say that Reynolds didn't work particularly well when it was tested in the courts until the Jameel judgment in the House of Lords, nevertheless at the Guardian we have been able to publish a lot of stories that we wouldn't have been able to publish in the past because the lawyers on the other side kind of know the process that's been gone through and they recognise that they're not going to be able to get a case up and running. So I think that Reynolds is working quite well, and you can take some of that into this privacy thing and that's where the Omand rules are quite interesting, because if you can say yes, we did consider the harm, the good, the proportionality, it was authorised, and no, this wasn't a fishing expedition, which goes to your point about things that may have public interest at the end that didn't look at though they would at the beginning or vice versa -- Correct. -- if you can show your working -- now, I know some of my colleagues and the legal team would be anxious if that became the kind of official audit, but nevertheless I think it's inevitable that any form of regulation is going to say: who knew about this in advance? What questions were asked? Were any notes taken? And I think if newsrooms in the way that they handle Reynolds began to handle these issues in the same way -- I'm not suggesting something that PricewaterhouseCoopers could come and read. I'm actually suggesting something rather less sophisticated than that, to demonstrate that there is a system. Yes. That actually these things were thought about and not just after the event, but in anticipation. Yes, and I think these are reasonable questions for a regulator to ask. I seem to be doing it all at the moment, but at least thinking about it. Yes. Notification I think is complex because it meshes in with lots of other different bits of media law which engage prior restraint. So if you have a confidential document which perhaps you shouldn't have, or you want to put it to the subject in advance for libel reasons, you run the risk that they will get an injunction under confidence and the story will never appear. I understand the problem, and that's an issue that has to be addressed, and I have some very, very quarter-formed ideas, but I'm keen to get ideas from everybody, actually, to see ways in which this could work. I mean, we're only Day 3, and we're going to get to Day 100 and something, I would have thought, so there's plenty of time, but the purpose of the openings is just to put all these things out there. Yes. Is this helpful for me to just respond -- Carry on, yes. Disputes resolution and the carrots and sticks. I mean, what we've been thinking -- obviously under Article 6, anybody can go to law who wants to. I think that a mediator in a pretty cost-free way could, at an early stage, look at meaning, could explore the degree to which the facts contested could decide on the facts, could deal with the prominence of an apology and the wording of an apology. All these things that can take months at huge expense to do through the courts could be done by a mediator. If a mediator kept notes of all that, so there was a record of that discussion, so that if the mediation fell apart you could then show that to a judge, if it went on to trial, and the judge could then recognise whether the newspaper had made a genuine attempt to reach resolution, that could be reflected in the costs or the damages or it could be regarded as a complete defence. Ie if a newspaper had early on put their hands up, confessed their error and said, "We will correct this prominently and pay the damages" and that had been rejected by the claimant, as has happened to us on occasion, I think the judge could then say, "Actually, I think that is a defence". So it's something like the offer of amends or a Part 36 offer. You'd have to have the mediator to have the ability to assess damages up to perhaps a certain level. I don't see why not, yes. And I'm not a lawyer, so the degree to which the primary legislation would have to be involved in order to embed that -- which sort of takes us onto the next issue because this is the statutory versus non-statutory bit. The statutory bit that says in setting up this independent regulator we need to tweak bits of law in order to give force to these things, in order to dovetail aspects of law, we don't have a problem with, as long as the regulation itself doesn't sniff of statutory regulation. Yes, well, I think in the speech the Lord Chief Justice made, he observed models whereby the government isn't appointing anybody, but is setting out regimes whereby independent people are appointed, who then appoint, and one of the examples he gave was the Judicial Appointments Commission. Yes. Anyway, these are all things for the future. Mr Rusbridger, thank you very much indeed. That's probably a convenient moment to have a break so that the fingers of the shorthand writer can cool down. We'll come back at about 11.30. Thank you. (11.15 am (A short break) (11.30 am) Before Mr Sherborne starts, two things. First of all, although I addressed a series of questions to Mr Rusbridger, they should be treated as questions to everybody. I'm sure they will be. Right, Mr Sherborne, I haven't had anything in writing at all from you. I have from everybody else. Should I have got? Sir, you will get. Oh. Retrospectively? It will cover topics which, although touched upon in the oral submissions I'm about to make to you, are largely or fleshed out, I would say, in the written submissions. Part of the purpose of the oral submissions are of course to open the evidence that you'll hear from my clients. Yes. But I will provide the Inquiry with written submissions before the evidence starts on Monday next week. It concerns, as you'll appreciate, legal issues as opposed to evidential ones. Right. Opening submissions by MR SHERBORNE Sir, along with Mr Crossley and his team at Collyer Bristow I represent the core participant victims, all 51 of them. I sat and listened, as you did and everyone else did yesterday, to the representatives of the two largest press organisations in this country. We are here, as you said, not just because of the shameful revelations which have come out of the hacking scandal, but also because there has been a serious breakdown of trust in the important relationship between the press and the public, and it is the general public whom my clients represent in one very real sense. It is really this breakdown of trust that we are here to deal with. That is the terms, of course, of module one of part 1 of this Inquiry. But before I launch into my speech, can I say this? It hardly fills my clients or the public, I suspect, with great confidence that, having listened to the two largest newspaper groups in this country in the face of the well-documented problems, in the face of the experiences which my clients' evidence highlights, and in terms of what this says about the ethics, culture and practices of the press, or at least a certain section of the press, that rather than suggest some concrete solutions to rectify them, or even recognise that there is anything really wrong, other than the unfortunate hacking incident, as they see it, they both urge you that a freer press is the answer. We say that this is symptomatic of a level of complacency amongst the British press, or a part of it. Such editors or newspapers, as was clear from the seminars of the Inquiry last month, are firm members of the "see no, speak no, hear no evil" brigade. It is a theme to which I will return in due course. Before I continue, can I just explain one term, which may well recur throughout my submissions. I've already referred to a certain section of the press. Let me not be Delphic. After all, it's not my strong point. By that I am referring to the tabloid or popular end of the press, and in that I do include the Associated titles. Whilst I accept, indeed I would urge the Inquiry, insofar as it seeks to set standards for journalistic activity, that these are standards which must apply across the board, the experience of my clients, the victims -- and I am here to represent them, not to be impartial -- is primarily and largely at the hands of that certain section of the press, as I will call it, a big section nevertheless, but it is still a particular section. Whilst I'm also sure there are many people who have complaints against the broadsheet newspapers, the main elements of what the core participant victims complain about here in terms of intrusion into their privacy, principally, are features very much of the tabloid or popular newspaper market, something which Mr Rusbridger touched on only moments ago. So far, so good. Let me begin then. There are currently 13 or so journalists from the News of the World as well as a journalist from its sister newspaper, the Sun, who have been arrested and are waiting further questioning. However, it is the whole of the press, and in particular the tabloid section of it, which we say stands in the dock, at least metaphorically so, and certainly in the court of public opinion, if not here. The nature of the charge, at least against some of the press, concerns their culture, practices and ethics, but the indictment could as easily read as follows: illegally accessing people's private voicemails, bribing employees into divulging personal information, blagging sensitive details through deception and trickery, blackmailing vulnerable or opportunistic individuals into breaking confidences about well-known people, the blatant intrusion into the grief of victims of crime, the vilification of ordinary members of the public unwittingly caught up in such events, the hounding of various well-known people, their families and friends, purely because this sells newspapers, and finally, the bullying of those who, in seeking to question these practices, are therefore merely exercising the very same freedom of speech behind which much of this behaviour is sought to be shielded or excused by the press. Quite an impressive charge sheet, you might think. No wonder it may take this Inquiry some time to conduct the investigation. It may take me a little time today, as well, to outline the true, unvarnished extent of the tawdry journalistic trade that we now have in this country, particularly in the publication of personal information about people's private lives, information that in some cases has been rightly denied to the press, or anyone else, as a matter of law. The real code of practice, we say, seems to be for such journalists, in publishing stories about the private lives of people in the public eye, that what you can get away with you buy, regardless of whether it is illegal, unlawful or just plain wrong. What you can't buy you procure, often through deception and lies. What you can't procure you just plain steal. And what you want to publish but you can neither verify nor necessarily prove, you simply make up, because it sounds right or it sells newspapers. On that last point, don't just take my word for it, as they say. We were all treated to a classic example of this when a former tabloid editor, Mr MacKenzie, spoke at one of the seminars. A man who boasted that in his considerable experiences he only checked his sources once. An editor whose view was: if it sounds right, it probably is right, and so you lob it in anyway. Nothing has changed. Before one says, as another former editor and now PR said at the seminar, that this type of journalism has been firmly consigned to the history books of Fleet Street, you should remember that Mr MacKenzie is still deeply involved in this industry and is currently a prize columnist employed by the Daily Mail. Sir, as you said at the outset, it is not the function of this Inquiry to offer applause or to make specific criticisms of any one newspaper or another. My role here is not to give applause to anyone. My role on behalf of those who had suffered at the hands of the press over a number of years means that I am here to highlight the wrongs, systemic, flagrant and deeply entrenched as I say they are. As I've said, I represent the victims and this is really their story. My submissions will be laced throughout with the accounts that they give. While there are 51 core participant victims, there are in fact many, many more people with similar stories, similar experiences, similar narratives of how their lives have been ruined or adversely impacted by the kind of culture, ethics and practices which you will hear evidence about from a selection of individual core participant victims. These victims can explain their feelings and their experiences far more eloquently and far more vividly than I can paraphrase. One may be forgiven if one attended or heard the seminars last month from thinking that it is the press who are the victims here. Victims of draconian libel laws, victims of greedy lawyers on no win no fee agreements, victims of unaccountable judges who arbitrarily impose gagging orders on them preventing them telling us, the public, about what the rich and famous get up to in private. This is no accident. The press is a powerful body. They have a common interest and a self-serving agenda. Why wouldn't they, after all? This is about survival, and they have lobbied hard to try and push their agenda through the pages of their own highly influential newspapers, to influence politicians with the sole objective that there should be less rather than more restriction or regulation, and that if this was so, journalism would be even better. If you need proof positive that it would not, then the setting up of this Inquiry provides it. However, the press have a very powerful voice and should not, as Mr Jay said, be allowed to drown out the voices of the victims. As the embodiment of that voice, a lone voice, of course, amongst the serried ranks of newspapers and lawyers on either side of me, I can say that I don't intend to be drowned out, but I will show that unfortunately, sir, as you feared, a number of individuals have already been vilified for agreeing to share their experiences with this Inquiry, and I will return to this later. There is, of course, a real difference between freedom of speech and freedom of the press. The two should not necessarily be seen as the same. While the first is an understandable and fundamental principle, we can see where an entirely free press, as some would suggest, has got us, and before I leave the narrative which the press wish to espouse, it is worth remembering what another former editor, Ms Rebekah Brooks, told the House of Commons Select Committee in 2003: "Self-regulation under the guidance of the PCC", she claimed, "has changed the culture in Fleet Street and in every single newsroom in the land." I presume by that she meant it in a positive way. Well, eight years on, it is for you to decide, sir, what you think about that as a statement of fact. However, it's hard to resist the temptation to comment that if this is the press's own assessment of self-regulation, I could just as well sit down now. It is equally tempting to point out that it was during the same evidence that Ms Brooks, the editor then of the Sun, admitted paying money to police officers. Mr Coulson, then editor of the News of the World, sitting to her side, stepped in to reassure the committee not only that this only happened in cases of public interest, but to make the now spectacular ill-judged assertion that they at News International always operated within the law. What damage, I've heard it asked, admittedly by those whose self-interest requires them do so, what damage has really been suffered by these practices? We'll hear from a number of people who provide, as I say, a better answer than I can. It is, as I said, merely a selection. There are not enough details, not enough room in court for everyone. It is a sample, sir, as you call it of the bigger picture, a glimpse of the scale of the problem, and it comes mostly from those who have hit the headlines, quite literally, but for every one of them, it should be noted that there are many, many others. However, before I outline this bigger picture, it is important to remember at all times that however loud the voice of the press may be raised, whether in this room or, more likely, outside, through the filter of their very own newspapers, there is a reason why we are all here and it isn't because the press got it right and it isn't because there needs to be greater latitude and freedom given to them. So let's start with the breaking point which caused this Inquiry to be set up. In the beginning was the word, and the word was hacking. A term whose significance until relatively recently one could have been forgiven for not really appreciating. Forgiven if you were a member of the public, that is, since the arrest and conviction of Messrs Mulcaire and Goodman in 2006 was reported but hardly with the level of impact or weight that everyone now realises it truly deserved. Nevertheless, whilst its significance may not have heavily impacted upon the public consciousness at the time, it was something of which the press or certain sections of it were well aware. They chose to ignore it publicly. That was until Nick Davies wrote about it so famously in 2009. Yes, it took a journalist to do it, which is important to note. An old-fashioned investigative journalist, if Mr Davies doesn't mind me calling him such, and no one here is saying that they should be rendered redundant. Of course, it was never going to be the tabloid press themselves who confessed or self-regulated on this. It wasn't the police or politicians who reported it either, both of whom were likely aware. Perhaps Harold Pinter was right when he said, "Most of the press is in league with the government or the status quo". No doubt the accuracy of that statement is something, sir, which you will consider in the later modules of part 1 of this Inquiry. So now to begin with the narratives of those who will give evidence before you. On 21 March 2002, a 13-year-old girl was abducted and murdered on her way home from school. Her name was Milly. Between March and September 2002, she was still believed missing, not just by the public, but most importantly, by her family. Five days later, after her disappearance, a mystery caller left a voicemail message on Milly's phone, apparently inviting her to a job interview in the Midlands. The call was a hoax. A particularly cruel and insensitive hoax. It was such an awful story that it made the front pages. A certain now defunct newspaper put it in their first edition: "Missing Milly hoax outrage". Whilst the woman who made that call and thereby caused distress to poor Milly's family was convicted and imprisoned for five months, what we now know is that another outrage, another act of cruelty and insensitivity, was the one which was nowhere mentioned in the News of the World, and that was the fact that Mr Mulcaire, acting in the course of his work for the newspaper, had deliberately accessed and listened to the missing 13-year-old's voicemail, and worse still, he had even deleted some to ensure there was room for waiting voicemails to come through to her otherwise full mailbox. We don't know who within the News of the World authorised this and at what level. We can speculate, but that's not the purpose of part 1 of this Inquiry. The individual names of those involved in such activities are to be anonymised, in a twist of irony that, whilst it is understandable to protect the criminal prosecution, will not be lost on those whose anonymity has been shattered in the past by tabloid journalists. Of course, the hacking of Milly's phone did not come out until July of this year, her parents having been told just before the criminal trial started in April. And it was this revelation which finally provoked the government into setting up this Inquiry. Mr and Mrs Dowler will tell you in their own words what it felt like in those moments when Sally, her mother, finally got through to her daughter's voicemail after persistent attempts had failed because the box was full, and the euphoria which this belief created, false as it was, unfortunately. Perhaps there are no words which can adequately describe how despicable this act was, but the Dowler story is just one of those you will hear. It comes first, for obvious reasons, but it is not just a story about hacking, in the same way as this Inquiry is an investigation into the much broader and bigger picture. The Dowlers were subjected to terrible intrusion by the press, intrusion at a time of immense grief, and as I will describe, they are by no means alone in this experience. For example, they will explain how in the weeks following her disappearance, and when the reporting frenzy had calmed down, the couple decided to repeat the very walk which Milly had done the day she was abducted. This was no formal reconstruction done with the police. It was not for publicity. It was, rather, a private act, a very private moment, something the couple had decided to do between themselves to try to come to terms with their teenage daughter's disappearance. A way of coming to terms with their grief in private. Or so they thought. But their moment of grief was obviously a photo opportunity too good to resist. Somehow the press found out that they were undertaking that last walk on that particular day and at that particular time. Their voicemails, they suspect, theirs of course, not Milly's this time, were being listened to. The News of the World published an article on that day under the headline "The longest walk", complete with pictures of the distressed couple and a side bar which read, without even a hint of introspection: "Face etched with pain, missing Milly's mum softly touches a poster of her girl as she and hubby retrace her last footsteps." And alongside the picture was a caption which read as follows: "Mile of grief. The Dowlers follow Milly's footsteps from Walton station and below mum Sally can't help but touch the poster of her daughter." First stolen voicemail messages. Why not then steal these precious moments too? Ethically, what's the difference? Both Sally and Bob Dowler will give evidence on Monday. They will be the first of my clients to do so. It is fair to say on any view that with the drip feed of revelation after revelation in the hacking story, as each new fact has come out, each one more outrageous perhaps than the last, it has got to the point where it is difficult perhaps still to be shocked. And whilst I suspect there are those who vehemently deplore the hacking of Milly's phone, or the phone of Shaun Russell, Josie Russell's father, or the victims of the 7/7 bombing, there are some who seem to have less sympathy for the high profile figures whose phoned also were illegally accessed. The basis for this I presume, certainly if the tabloid press's view of the ordinary reasonable reader is right, is that so-called whingeing celebrities deserve to have their private messages listened to. After all, they want the public to watch their films or buy their records or to pay to see them play football. However, I trust that the majority of the population accept that high profile or not, there is no excuse for this kind of what is called news-gathering. Lest it should be overlooked, while Mr Davies was the man who was prepared to write about the dark arts, it was individuals like Sienna Miller who were prepared to take on News International, unlike some of those in government or authority. And it is Sienna Miller and others' actions which forced the hacking scandal to be taken seriously by the police. Without people like her and other so-called celebrities, who knows when or even if the Dowlers would ever have found out about the hacking of their daughter's voicemails? Who knows whether this Inquiry would have been launched? After all, the Surrey Police had known about the hacking of Milly's phone for nine years and the Metropolitan Police probably for several years as well. So before we condemn the wonderful stereotypical rich and famous, as they are termed, and suggest that the law is not just for them, in fact no one, not even the rich and famous, wants that, it is important to remember that it is in fact a sad but true reflection of our system of justice and in particular the lack of state funding in this area that it is only because of those with sufficient resources and the access to lawyers, those terribly grasping claimant lawyers we all hear about, or the bravery of these people to run the gauntlet of the press, that the law, particularly the law of privacy, has now been developed to protect everyone, wealthy and non-wealthy alike. Now, with the demise of conditional fee agreements, giving access to justice for those of limited means such as the Dowlers and others you will hear about, the situation is only going to be more polarised, but of course that doesn't make for good print. It's an inconvenient truth for the press, a press largely, but not entirely, hellbent on self-interest and self-preservation, or to put it another way, continuing self-regulation. As I mentioned at the outset, one of the features of the phone hacking scandal is that victims were not always well-known people or those caught up in headline-dominating incidents. As often as not, it seems, they were people whose crime was simply working for well-known people, people who were involved with or were simply friends of those in the public eye, and therefore who might have access to material that could provide good, but let's face it, relatively cheap copy. Ordinary people, so to speak, who were caught in the cross-hairs, often with very tragic consequences. The collateral damage in a war where every means, fair or foul, has been employed. People who have only been able to bring proceedings against News Group Newspapers because they have the benefit of lawyers who will act on a no win, no fee agreement. People, for example, like Mary-Ellen Field, a distinguished professional, an accountant by training, who was employed because of how good she was at her job by someone very much in the public eye, Elle Macpherson. Ms Field will give evidence to you, sir, about how she became the well-known model's business adviser and confidante, but how when damaging details about Ms Macpherson's private life started appearing in the press, she was blamed by her employer. This is no ordinary story though. The circumstances in which Ms Field was packed off to a clinic in America because her employer believed that her refusal to accept that she was responsible was plainly a denial borne out of the strain of caring for her disabled son and a problem with alcohol. She will explain how she reluctantly agreed, in order to save her job, to travel to this clinic in America, and then, when the clinic sent her back because there was no such problem with her, she was in any event sacked by her employer. These are matters which she will graphically describe. Of course, we all know now that those stories in the press were actually the product not of someone leaking to the newspapers but rather the unlawful interception of Ms Field's voicemails and her employer's voicemails, too. Indeed, the unlawful interception of Ms Macpherson's phone was one of the counts on Mr Mulcaire's indictment. So for those who question, as some outside this room still do, why all the fuss about hacking, maybe Mary-Ellen Field provides an example. Ms Field is by no means the only such person who suffered such a fate. Others have different but equally disturbing stories. The Inquiry will hear from someone who is described by the letters HJK. There is a reason for that. The association of HJK with someone well-known is a matter of great sensitivity. HJK is not well-known, though. I say that before anyone outside this Inquiry attempts a jigsaw identification. HJK's phone was hacked by the News of the World, as the mobile phone company confirmed in a telephone call to HJK out of the blue in the late summer of 2006. This was several months after HJK had been doorstepped by a journalist claiming to be from another newspaper group wanting to publish an expose supposedly about HJK's embryonic relationship with this well-known individual. The connection between the News of the World and this other newspaper group is not clear, but it is hard to think of any other reason why HJK's phone was hacked or this nascent relationship came to light. The effect on HJK was profound. The story about the quintessentially private relationship almost hit the headlines, but was displaced by another story which, thankfully, blew up the same day. It was a terrible experience all round, and in a disturbing postscript, HJK will explain how shortly after having been diagnosed with a serious illness, a photographer who had been following HJK jumped out and took a photograph, leading to concerns on HJK's part that sensitive medical information had been accessed by journalists. HJK would not be the first to have suffered such a fate. It is interesting that in what seems like on one view a fairly brazen approach to their selection of targets, the News of the World even targeted other journalists, albeit broadsheet ones. You will hear from Joan Smith, a journalist, broadcaster and novelist, but interestingly also a campaigner for human rights. Her claim to fame, as it were, and therefore the reason she was targeted, was presumably the fact of her relationship with the member of Parliament Denis MacShane. Their relationship was entirely legitimate and in the public domain, but perhaps it was felt something might be gained from just listening in to see what could be found. Distressing enough, you might think, to be the subject of such prying into your private life, but made all the worse, she will say, by the fact that the hacking of her phone and the fishing around for messages came in the wake of the tragic loss of Mr MacShane's daughter. Tom Rowland will give evidence next week too, a Telegraph journalist for ten years but then a contributor after that to other newspapers. He was one of those victims who was informed by the police about a number of calls that had been made to his mobile phone from a handset within the News of the World newsroom referred to as "the hub". 60 calls in his particular case. It makes sense, you might think, that journalists as well as Mr Mulcaire, the private investigator, might have made calls themselves to these voicemails. After all, they would have a much better idea of what they were looking for, or perhaps better understand what they heard. The interest in Mr Rowland was apparently the details he might have picked up from the contacts he had made in the context of his own journalistic activities with high profile or wealthy individuals relating to the properties that they had purchased. So the News of the World's list of victims includes journalists too. The press are even prepared to turn on their own, you might feel. But perhaps one of the cruellest twists of the whole story is the fact that one of the newspaper's most prominent targets had also been one of its most prominent supporters. Sara Payne, the mother of Sarah Payne, the murdered little girl. Ms Payne spearheaded the campaign, as we all know, to bring in the eponymously named anti-paedophile legislation Sarah's Law, a campaign championed by none other than the News of the World. It is ironic, to say the least, that the final edition of the newspaper contains a letter from Ms Payne in which she thanks them for their support. The revelation, which came only days later, that her phone, the very phone she'd been given by the newspaper as part of the campaign, was likely to have been hacked by Mr Mulcaire, was a sickening postscript, perhaps a new low amongst a wealth of lows, for a newspaper whose former glory has been so fatally befouled by its cultural dependency, it seems, on the dark arts, which sadly give journalism and journalists a bad name. Mr Jay mentioned on Monday when he outlined the scale and extent of the hacking scandal that I would mention the civil claims which are currently due to be heard at the end of January, since I represent many of the individuals whose actions are being tried then. However, I hope I've already given you a flavour of quite how broad the cross-section is of individuals whose private messages were listened to or details were blagged, both those well-known and those who were targeted because the newspaper believed them to be associated with well-known people. There are currently over 50 claims which are being tried, but that in itself is just a handful in comparison to the potential number of claims. We have heard that Mr Mulcaire's notebook contained the names of almost 6,000 potential victims. If you just stop to think about that for a moment, 6,000 people. If you need a comparison, that would fill the entirety of the new velodrome stadium built for next year's Olympics, and those are the details obtained by just one private detective. Of those 6,000 people, the police have only managed to speak to about 600 so far. Whilst their individual stories are all fairly different and unique to them, they do have two important similarities. Let's not forget. One, all of these people were targeted because of the information, private, personal or sensitive information, which it was hoped could be gained to be used for the purposes of stories in the News of the World, stories which made the newspaper money. That's why it was done: to sell newspapers. Not to detect crime or to expose wrongdoing, not to protect society or for the public good. Which leads me to the second thing that they have in common, that is the fact that none of these stories had any public interest whatsoever. There is and was no public interest defence open to those responsible for such criminal activity. No defence for this flagrant invasion of people's privacy. News International's other Queen's Counsel, Mr Silverleaf, basically admitted as much when he gave his fateful opinion in the Gordon Taylor case after seeing just the "for Neville" email back in 2008, and no one says differently now. As we know from the civil litigation, the other things which News International have admitted, through the very same Queen's Counsel, in the Sienna Miller action in which judgment was entered against the newspaper group, was that this was a scheme which was devised or introduced between Mr Mulcaire and a number of journalists. We say a very large number. The figure of 28 has been mentioned in this Inquiry, and I have not heard it corrected. But in any event, it was a systematic and, it appears, highly efficient arrangement which started at one end with Mr Mulcaire using various illegal or unlawful techniques to obtain private telephone numbers, PINs, passwords, unique direct dial numbers and other access information, information which was sometimes used to listen to targets, or, it seems, simply passed on to journalists for them to use themselves to access individual voicemails. That was one end of the scheme. At the other end, the ill-gotten gains, the fruits of these labours, were turned into articles, if possible. Either directly, sometimes as quotes, we think, from the so-called pals or sources that you read about, or just as stand-up stories for which they would otherwise have had no proof. It is important to remember that the admissions made in the Sienna Miller action were not simply as regards accessing her voicemails as well as her email account, using her generic password, but also related to the inclusion of that material in a series of articles and the persistent harassment of her over a number of years, both from the articles published and the continuing targeting and surveillance of her. As Mr Jay explained, whatever may be said now or in January at the civil trial, it has been admitted by the newspaper group not, as was originally claimed, that they were simply liable for those activities of Mr Mulcaire because he had been hired or commissioned to carry them out, but also because their very own journalists were mixed up in it, a large number, it now seems. I am not going to repeat the facts and figures the Inquiry has already heard based on police material as to the sheer scale of this practice, the number of pages in Mr Mulcaire's notebook still being minutely analysed five years after it was seized, or the volume of calls made by him or made from within News International as part of the routine plundering of people's voicemails. What I would say, however, is that the evidence demonstrates not so much a cottage industry, as Mr Jay called it, but rather an industrial revolution, a culture change, we say, away from proper old-fashioned journalistic activity. The precise details of this I will deal with in part 2, not to mention at the civil trial at the end of January, but I will just leave you with one calculation. The police say in the 11,000 pages of Mr Mulcaire's notebook it looks as if there is evidence of well over 2,000 tasks assigned to him in the four years to which the notebooks relate. That means potentially 500 plus stories each year from this single source. Which means, on such a calculation, that there were possibly ten stories in each edition of the News of the World which were the product of phone hacking alone, even leaving aside the other dark arts practised by the newspaper. That may be speculation, although there is other evidence which suggests higher figures, but even on that, it is hard not to conclude that the very foundations of this most popular newspaper throughout these years were built on manifestly unholy and indefensible ground. And, if the newspaper was receiving such an endless stream of stories, and a significant number of journalists were involved, then it must surely raise questions about who knew what and at what level. Again, that is something about which I will have much more to say in part 2. Can I leave you with this taster? Can it really be sensibly argued that this is a simple case where checks and balances were not properly observed and that a handful of rogue journalists were allowed to run amok with the company chequebook? Or, rather, was such activity, the systematic and deliberate employment of unlawful methods, encouraged or condoned at higher positions in the newspaper for the purposes of obtaining stories about the private lives of individuals, the very lifeblood on which this newspaper prided itself? Whatever may be the knowledge of those in senior positions at the time, there was on any view a concerted effort, we say, after the event, to conceal the ugly truth from ever surfacing. There is little that can be said about this because of the criminal prosecutions, at least in terms of the individuals involved. However, some general comments can be made about the bigger picture. Whilst it is comparatively easy now to summarise the activities, the way it has unfolded has little, if anything, to do with News Group Newspapers coming clean of their own accord. Hardly a great advertisement for self-regulation. An examination of the state of mind of those who were involved, especially in successive hearings before the Parliamentary Select Committee, has led to inconsistency and corrections, a tangled web, one might say. But what can certainly be said is that it has revealed at the very least that someone somewhere is not telling the truth. In order to assess the culture, it is important to remember what was said by the News of the World in July 2009. Let me pick out some highlights of the statement they put out on their website. A statement which News International, and that was the website it was put out on, said they had deliberately delayed making until all relevant facts had been analysed and checked, both internally and externally, and this is the statement: "News International has completed a thorough investigation into the various allegations made referring to Nick Davies' initial story. Apart from matters raised in the Mulcaire and Goodman proceedings, the only other evidence connecting News of the World reporters to information gained as a result of accessing a person's voicemail emerged in April 2008 during the course of the Gordon Taylor litigation. Neither this information nor any story arising from it was ever published. Once senior executives became aware of this, immediate steps were taken to resolve Mr Taylor's complaint. "We can state with confidence that apart from these matters there is not and never has been evidence to support allegations that News of the World journalists have accessed the voicemails of any individual or that News of the World or its journalists have instructed private investigators or other third parties to access the voicemails of any individuals. "Further [they stated categorically], in the context of allegations having appeared in not only the Guardian but the BBC and Sky, it is untrue that officers have found evidence of News Group staff, either themselves or using private investigators, hacking into thousands of mobile phones; it is untrue that apart from Goodman, officers found evidence that other members of News Group's staff hacked into mobile phones or accessed individuals' voicemails, and it is untrue that News Group reporters have hacked into telephone voicemail services of various footballers, politicians and celebrities named in reports this week." Pausing there, it is a telling feature of the scandal that the reporting of it was largely, if not exclusively, confined to the broadsheet newspapers and the broadcasting media. The other tabloids, or popular newspapers, ran a million miles from it in the opposite direction. No screaming headlines, for once. No finger pointing between competitors in a brutally competitive market. How interesting, you might think. Although the myth of one rogue journalist has thankfully been exploded, it is one which was perpetuated for some time by the News of the World. Even as recently as September 2010, the group issued a public statement in the face of mounting evidence which said simply this: "We reject absolutely any suggestion that there was a widespread culture of wrongdoing at the News of the World." Of course, it's important to bear in mind, sir, that as Mr Pike, one of its external solicitors, admitted only a few weeks ago to the Select Committee in their unenviable task of trying to uncover the truth of who knew what and when, that News Group solicitors knew perfectly well from 2008, some two years earlier than this statement was put out, that the first defence of rogue reporter defence was blatantly untrue but the solicitors felt bound not to reveal this information because of client confidentiality. Solicitors are bound to keep the silence of their clients, but the clients, of course, are not restricted in this way. The Inquiry will hear from the solicitor Mark Lewis, who will explain in his own words the story of how his claims against News Group started, his dealings with News International and therefore how the News of the World eventually met its fate. Mr Lewis's account of what happened to him, how the Gordon Taylor case ended with an enormous settlement and later the Dowlers' too, how he has been the subject of attack by those in authority, the police and even the PCC in the course of his work and finally how he personally became the target himself of News International, would read a little like a John Grisham novel if only it was fictional, but the truth, as Mark Twain said, is stranger than fiction. Indeed, the revelation in the last few weeks that not only was he under surveillance but private investigators were also instructed to and did carry out covert surveillance on his family, filming his ex-wife and his teenage daughter, is, to use the words of News International's own counsel yesterday, totally unacceptable. And whilst an apology may be some comfort for Mr Lewis, and no doubt he can be asked this, it is important to remember that as with this fresh disgrace and the previous drip drip of revelation after revelation about the conduct of News of the World, that it is all well and good apologising once you've been caught out. How much better if the stables, however Augean, had been cleared out voluntarily by this organisation. Hardly, I would suggest, a task of Herculean proportions. The timing is critical, too, for the newspaper was caught out in this respect not in some nefarious activities in the dim, dark days of 2005 and 2006, at the height of Mr Mulcaire's activities. This was commissioned and discussed with solicitors as recently as the middle of last year, at the same time that News International's offices were telling the Select Committee that the organisation was trying to get to the bottom of what had gone so horribly wrong. It is clear that News Group's response to this was instead to consult with their solicitors -- of course, not the so-called greedy claimant lawyers, but their external solicitors, Farrers, about commissioning surveillance of those conducting litigation against them, surveillance designed to unearth the true scale of what Mr Davies of News International describes as the wrongful and shameful behaviour. Mr Lewis was targeted for standing up to a powerful newspaper organisation, but he isn't the first, as you will hear from me later, and despite the best of hopes, I suspect he may well not be the last. He wasn't, certainly, alone in terms of those seeking to hold News International to account. No, it appears that the organisation commissioned private investigators to carry out surveillance of other key lawyers whose clients were bringing civil claims against News Group, such as Charlotte Harris, who prepared, amongst others, Mr Clifford, and Mark Thompson, who prepared Sienna Miller and let us not forget that News International also set investigators on members of the Parliamentary Select Committee themselves. Remarkable. These, you might think, are the tactics of fear and desperation. But I ask you this: is this what journalism or the protection of it comes to, organisations setting themselves up so far above the law that nothing seems to be beyond the pale? What a culture. What an ethical vacuum, and from a newspaper whose moral crusade is still being championed by News International even yesterday and filled the pages of its final edition. And yes, you might say, in this example it may be the culture of just one of the players in the market, but it is, or at least was, a highly influential one, and we say fairly representative in a number of respects of the rest of the tabloid market. Before I finally leave the issue of hacking, I need briefly mention two things. Firstly, it is important to say that what we have so far may only be just the tip of the iceberg. I don't just mean the fact that the police may only have notified about a tenth of the total number of victims of this scandal. Two of the core participants giving evidence next week will provide a glimpse of what I mean: Mr Hurst, a former member of British Army Intelligence, and Ms Jane Winter. Both will deal with how their computers and emails passing between them were illegally accessed by private investigators working, they say, for the News of the World by the use of Trojan horse software. Mr Hurst's claim was the subject of a Panorama programme and is probably familiar to some of you here. He alleges that his emails were hacked into to obtain information and documents about activities connected to his investigations in Northern Ireland. Ms Winter, with whom he communicated, worked for an independent non-governmental organisation striving to ensure that human rights are respected in Northern Ireland. The second thing I must mention, something Mr Jay said in his opening on Monday, is that the use of hacking into voicemails may well not have been a practice hermetically sealed within the four walls of the News of the World's offices. Indeed, as Richard Peppiatt, the ex-Star journalist who walked out in protest at tabloid culture, asked rhetorically himself at the seminar: who seriously believes that there was just one rogue newsroom, or one rogue investigator, for that matter? Whilst Mr Davies was at great pains yesterday to dispute the action brought against the same defendant, News Group Newspapers, by my client Jude Law over his claim of hacking by the Sun newspaper as well as the News of the World, and to downplay the evidence against the sister newspaper, it would be wrong to think, and indeed as much has been said in the Chancery Division, that the corner names which were mentioned by Mr Jay are by any means the only basis upon which Mr Law's claim is brought. Neither of us can say any more. It is a matter which will be tried in the Chancery Division, although not in January of next year, unfortunately. Sir, I don't know if that's a convenient moment to break shortly. Certainly. Shall we just have until half past, and then we'll come back for another half an hour and then you'll choose your time to break for the short adjournment. I'm very grateful, sir. Thank you very much. (12.22 pm) (A short break) (12.30 am) Yes, Mr Sherborne. Let us pause for a moment then to just take stock. Outrageous and shocking as it is, the practise of illegally accessing people's personal voicemails is, I would suggest, just one symptom of a much greater disease afflicting the tabloid press. As you reminded Mr Caplan yesterday, hacking, as I mentioned earlier, is not the only reason we are here. Although, as I've said as well, having listened to the core participants at the seminars last month, one might be forgiven for thinking that other than hacking, regarded as a historic and isolated lapse of judgment, there was nothing to criticise, really. It is no surprise, therefore, with such an attitude as that from the popular press, that so little publicity was given to the Information Commissioner's report when it came out in 2006. Given that even now there is a desperate attempt to avoid its conclusions, I'm going to highlight some of the things that were said in this initial report, "What price privacy now?" a phrase to which I will return. Mr Thomas concluded, the Information Commissioner, that: "investigations by my officers and by the police have uncovered evidence of a pervasive and widespread industry devoted to the illegal buying and selling of personal information." He went on to conclude that: "The trade in such information represents so serious a threat to individual privacy that this is the first report I or any of my predecessors have presented to Parliament." In paragraph 5.6 of his report, he specifically addressed the issue of the media. He said: "Journalists have a voracious demand for personal information, especially at the popular end of the market. The more information they reveal about celebrities or anyone remotely in the public eye, the more newspapers they can sell. The primary documentation seized at the premises of the Hampshire private detective consisted largely of correspondence, reports, invoices, settlement of bills, et cetera, between the detective and many of the better-known national newspapers, tabloid and broadsheet, and magazines. "In almost every case, the individual journalist seeking the information was named and invoices and payment slips identified leading media groups. Some of these even referred explicitly to confidential information. The information which the detective supplied for the newspapers included details of criminal records, registered keepers of vehicles, driving licence details, ex-directory telephone numbers, itemised telephone billing and mobile phone records and details of friends and family telephone numbers. "The secondary documentation seized at the same premises consisted of the detective's own handwritten personal notes, and a record of work carried out, about whom and for whom. This mass of evidence documented literally thousands of Section 55 offences and added many more identifiable reporters supplied with information, bringing the total to some 305 named journalists." Somewhat surprisingly, given the true public interest in this of all stories, it barely received a mention, at least not in certain sections of the press. Let me write the headline for you; after all, no newspaper actually did: "What price privacy? Tabloid newspapers are chief suspects in the routine illegal buying and selling of personal information. It's official, confirms Information Commissioner. See pages 4 and 5 inside for the league table of shame." And who heads this table? Well, I won't name the main offender, but if I was indulging in the press' favourite practice of jigsaw identification, I might say it earns hundreds of millions a year, it lives in a plush multimillion property off High Street Ken, and its editor is also the chairman of the PCC's Editors' Code of Practice Committee. It was helpful to hear Mr Caplan say that steps were taken by this editor, once the report came out, to stamp out these practices. Perhaps, once he's heard from the victims who come to give evidence here, he and other editors of that section of the market will continue to put their houses in order, whatever it is that you recommend, sir. After all, that is why we are here, and it might just be a good start. But again, we mustn't forget that the roll call of dirty tricks or journalistic tools of the trade, as I suppose they might be called, does not involve just hacking or the illegal trade in personal information. There is also the obsession, in a particular area of this market, with the invasion into the private lives of well-known people, the hounding of people in the public eye, the intrusion into the grief of victims of crime and the unforgivable vilification of those caught up unwittingly in such events, as well as other ethical or cultural problems which my clients will give evidence about. Let's begin, then, with the invasion of privacy. Right at the outset in true media lawyer style, I know I meant to say in the clearest of terms that freedom of speech is an essential part of any democratic society, and I do. No one could or does say otherwise. But, more importantly, it is only one part of the equation. The other side, so frequently ignored or understated by the press, is the right to respect for private life, for home, for family life, for correspondence. Privacy, contrary to what the newspapers believe, is not a dirty word, and it does not necessarily mean the same as secret. Indeed, it is a much wider concept, and whilst I could give you a legal lecture about its importance, I may well commit, as I said earlier, some of this to written form. What it means quite often is nothing more than a type of freedom in itself, the freedom, that is, to make choices, choices about what we do, choices about what we do in private and also what we do in public or semi-public places sometimes, provided that the activity is one which there is a reasonable expectation would remain private. And by private, again, I do not mean secret. Let me give you an example of this freedom of choice in relation to photographs. When I come back from holiday, if I get one, I take my photos to be developed. Some, it turns out, are terrible; most, in fact. Whilst I might show all of the ones I get back, no matter how terrible, to my family, and maybe only the semi-decent ones to my friends or work colleagues because I want them to see a certain historical monument or something similar, there are some which should never see the light of day. That is my choice. Now, the ones that I don't show may be almost the same as the ones that I do. They may, for example, be a bad light or I may be pulling an embarrassing face or something, but the fact that they may contain similar information to the ones that I do show is not really the point. It is my choice which of those moments I show and why, and just because I only show some of them doesn't mean that Snappy Snaps or some other generic high street developers can show all of them in their window. It is this freedom of choice, or, to use another dirty word, control, about how I portray myself to the world or what of my private life I put in the public domain, and it's something which we should all be entitled to do; at least, that is, unless there is some countervailing public interest, a topic to which I will turn, albeit relatively briefly, in due course. The same applies to what I may do in private or in semi public or public places. It is about respect for other people's privacy, regardless of whether you are a celebrity or not. Now, if you expose your entire life to the press and trade off that, truly and actively trade off that, then it may be a different story, I accept. But examples of that, proper examples of that, are few and far between in reality, as some of the core participant victims giving evidence will explain. Most importantly, it is that kind of person, who exposes their entire life to the press, who is not here complaining to you, sir. This freedom of choice is one which you or I, as ordinary members of the public, take for granted, but for people whose careers or talents place them in the public eye, they apparently cannot. It has often been said, even by Lord Hoffmann who has been quoted wrongly by at least one editor as making freedom of speech a trump card, that a right to privacy is a part of every human being's development, and if I may be permitted a moment of lofty prose, the respect which is given to an individual's privacy is as much a mark of a tolerant and mature society as we like to believe ours is, as a free and forceful press. There I go again, putting these two rights, or principles, which often clash, on an equal footing, at least to start with. That is, of course, until the facts of any particular case are scrutinised. Well, I make no apologies for doing so. Not only is a it right as a matter of common sense; it is the law, both here and in Europe. I know the press don't like this, and I will return to this in the context of Mr Mosley's story in a moment, but that is the position. Freedom is not an unqualified concept. It is noteworthy that it was an American writer, Elbert Hubbard, born and bred on First Amendment principles, who famously described responsibility as the price of freedom. The fact that he's also famous for defining an editor as a person employed by a newspaper whose business is to separate the wheat from the chaff and to see that the chaff is printed is too tempting not to mention. Whilst I'm happy to debate these issues in front of this Inquiry, indeed with anyone, it is in truth an academic argument, and I say that for two reasons, the two different definitions of the word "academic". Firstly, because it is largely irrelevant, since the stories which are the subject of the injunctions about which so much heat is generated by the press, never do they contain any public interest at all. They don't involve politics or corruption or the misuse of public money. They are not what one might call the product of investigative journalism. Far from it. They involve celebrity gossip, sport and sex. These are the type of stories where the law is now being presented as a threat to freedom of speech. The second reason why it is an academic argument is that however clever the legal or intellectual arguments may be on each side, the imperative which really drives the newspaper is money. Stories like this sell newspapers. Maybe not literally on the news stands, but these exclusives capture or keep the readership, or so the newspapers believe, and with readership figures comes advertising, such as there is left. And if proof of that is needed, then why is it that you heard some of the media representatives at the seminars citing what was said by various commentators or even the odd judge or two is falling into the age-old trap that public interest is defined by what the public are interested in or curious about, when they said that there was a real public interest in these newspapers being allowed to continue publishing such stories. Indeed, the attitude of the tabloid press to privacy and the challenges which this represents is neatly encapsulated, I say, by the evidence given by Mr Mosley. I say the attitude of the tabloid press generally as opposed to the News of the World, which was the particular newspaper that so spectacularly destroyed his privacy once and for all, because of the haste, as I will describe later, of the other newspapers from the same market to rubbish Mr Mosley after the decision, to rubbish the judgment, and quite remarkably, to rubbish even the judge who made it in July 2008, a pattern which has now become familiar in a certain section of the press. It is a startling feature that despite this obscene rush to trash the judgment and condemn it as wrong, there was never any appeal by the News of the World, a point I think you noted, sir, during Mr Jay's opening. Nor was there any suggestion by the government in its submissions to the European Court that the decision was wrong. And how, I ask, could it be? The story which the News of the World blasted across its front page with the screaming headline, "Formula 1 boss has sick Nazi orgy with five hookers", revealing the details of Mr Mosley's sex life together with graphic images, has nothing whatever to do with public interest. Mr Mosley's work as president of the FIA may have involved a public dimension in terms of imposing sanctions, for example, on the Formula 1 industry, but as much, if not more, was about road safety, something which is really rather boring, I can tell you, but nevertheless incredibly important. Mr Mosley didn't court publicity. Neither he nor his wife nor his sons had any interest in being associated with the glamour of motorsport. However, whilst before the end of March 2008, he may not have been well known to the average member of the British public, and that was a deliberate choice, he is well known now, though. Let's be honest. Who can look at him without thinking about what he chooses to do with other consenting adults in private? And then stop, and ask yourself this: is this something you really feel you're entitled to know about? Whatever your answer, you do know it. And once you know it, it's too late. The fact that he won his case does nothing to remedy that. How does it feel for Mr Mosley, a man who has devoted much of his life to ensuring the safety of others, about which very little is written? He will tell you. Let me go back a little, though. I remember that telephone call on the Sunday morning at the end of March of 2008, and I confess I was reading the News of the World at the time, and there it was on the front page. That is how Mr Mosley first saw it too. He wasn't given any warning in advance, despite the obvious devastation it was likely to cause to his private life and to that of his family. Was this an accident? I can answer that. I say I can. Mr Myler, the editor of the News of the World, answered it himself in his evidence at the trial. He admitted that the failure to give any notice was a deliberate attempt to avoid Mr Mosley going for an injunction, as he suspected he would get it. Extraordinary. And yet the newspaper did not bat an eyelid at this deliberate decision to remove any opportunity for Mr Mosley to protect his article 8 rights. The balance between freedom of speech and respect for a private life is an exercise which, if conducted at all, happened entirely within the editor's office, made by an individual -- and this is not personal to Mr Myler -- who had a direct commercial interest in publishing this story. Is this the right way for the law to work? It certainly is how the press want it to be. Whilst the original story with the Nazi line was bad, in the follow-up story, the newspapers sought to rub salt into wounds because Mr Mosley had the temerity to publicly state that his private activities had nothing to do with the Nazis or anything Nazi at all. It was absurd. Indeed, he was called a liar for this in the follow-up article, which was published on that second weekend, a weekend whilst Mr Mosley was waiting for the court to decide his emergency application to prevent the very graphic images of him being published on the Internet. The injunction was refused, as we all know, even though the judge held that there was no public interest in the story and the article was a gross intrusion into his private life, and it was refused because the damn had burst. Millions of people had already seen these images, as the News of the World had posted them on their website, and it had gone viral across the Internet. Mr Mosley was faced with a choice, as he will tell you: whether to retreat and accept this humiliation, something which the newspapers counted on that he was likely to do, or instead to prepare himself for a full-blown trial, with all the added embarrassment that this would cause. Thankfully, he chose the latter. Thankfully, not just for lawyers, but for ordinary members of the public, because it is a case which has strengthened the protection to the private life of all of us. What happened at trial is, of course, history, but then so is his private life, history. As I said, it is too late to put the genie back into the bottle. And what about the News of the World? Well, they obviously failed to make good the suggestion that there was a Nazi theme, as they did other spurious public interest arguments which the court rejected. But if you want a little insight into some of the tricks of the tawdry trade I have mentioned, listen to Mr Mosley as he will tell you that the Nazi theme was preconceived story for which they needed the facts to fit. We know that because of evidence the News of the World had to reveal in the action. Woman E, the witness, who never showed up at the trial, can be seen on footage shot the day before as they tested the secret camera they were fitting her with. As Mr Mosley describes in his evidence to the Inquiry, you can see woman E being instructed by Neville Thurlbeck, a man whose name is familiar to all here, the journalist responsible for the story, trying to get Mr Mosley, as he wanted woman E to do, to perform a sieg heil salute, telling woman E how far Mr Mosley should be away from the camera if she could get him to do that salute. Of course, there was no salute, and as woman E later apologised, she knew there was nothing Nazi about this at all. Perfect example, you might think, of the example described so vividly by Mr Peppiatt: let's publish the story and worry about the facts later. Publish and be damned is consigned to the history books of Fleet Street, said Mr Hall. I beg to differ. Entrapment was bad enough, but it didn't stop there. There was blackmail, too, we say: the attempt by Mr Thurlbeck to persuade some of the woman involved after the story came out to play nicely with the News of the World and to give them stories for the follow-up edition under the threat of revealing their identities. Mr Neville's email, what you might call the "from" rather than the "for Neville" email, even sent these terrified women unpixelated images of themselves which had been obtained to show them what would be published in the newspaper if they didn't play ball. This kind of blackmail was so commonplace in the tabloid psyche that the editor thought nothing of it at trial. As the judge described it -- this supposedly amoral judge, as one particular newspaper termed him -- it disclosed a remarkable state of affairs. As I say, Mr Mosley won his action, but at what cost? And I mean cost in real terms as well, because though he was awarded £60,000, the largest privacy award to date, he was left out of pocket, particularly as he had to spend considerable sums trying to clear up literally thousands of articles on the Internet or reposting of these voyeuristic images, and he will tell you about that. More importantly, what about the cost to his family? What price privacy, one might say. How did the tabloid press deal with this defeat? Well, having lost in Court 13, the News of the World editor looked for a different kind of appeal: in the court of public opinion, that is. He ran straight to the steps of the RCJ attacking the judgment and accusing the judge of bringing in a law of privacy through the back door, whatever that is meant to mean. He sought to challenge the decision, defending the article, despite the judge's clear rulings, as a legitimate and lawful publication, and decrying this as, yes, you guessed it, a chilling effect on free speech. Our press, he said, is less free today. Our media are being strangled by stealth. He was not a lone voice, however loud. The Sun joined in too, with the headline, "The day that freedom got spanked". Of course, the Sun, we hear now, is trying to distance itself as fast as it can from its former stable mate. The Daily Mail stepped in, too, to defend the News of the World as its editor attacked the judgment and, more importantly, the judge as well. In a speech to the Society of Editors, Mr Dacre complained that the law was coming not from Parliament but from amoral judgments, words he said "I used very deliberately from arrogant and amoral judgments of one man, a judge with a subjective and highly relativist moral sense". His attack went much further and was far more personal, and I won't repeat it, but it was on a judge who was simply applying the law as he was required to do, and, most importantly, as Parliament has in fact accepted by its adoption of the Human Rights Act and the Convention rights under it, and as the House of Lords has frequently endorsed. But once again, let's not let the facts get in the way of a good story. It is an interesting insight into how this section of the press regards itself above the law and it is familiar from the way in which they treat injunctions ordered by the court preserving privacy. This Inquiry may recognise the rubbishing by editors of those who make the decisions as a way of undermining the process itself. Sadly, in Mr Mosley's case, as appears in several other of the accounts you will hear, there is a terrible postscript. In the aftermath of the trial, Mr Mosley's son, who was suffering from depression, died of an overdose, something which he strongly believes was in some way attributable to the very public humiliation that he received. The press's reaction to this deeply sensitive issue hardly covered them in more glory. As Mr Mosley tried to sort out his son's personal effects, he was mobbed by journalists at the house, even though he had written to newspaper editors asking to be left alone. An isolated incident? No. The same is true of his son's funeral. For example, one of the reporters tried to pass himself off as a rambler in order to get in and take pictures. All of this perhaps could have been avoided, Mr Mosley would say, not just for his benefit but for others who also find their lives ruined by unlawful intrusions into their privacy. That is if prior notification had to be given by newspapers before they published stories about people's private lives. That was the basis of his complaint to Strasbourg, that the law should provide a proper remedy, one that is practical and real, and what other proper remedy is there for invasion of privacy? Because once something is made public, nothing else will ever do. It's not like libel, where an award of damages can prove to the world that the allegation about which you complain is untrue. The only effective remedy is one where the stable door is shut, if it should be shut, before the horse bolts. And who should decide whether the stable door should be shut or not? Is it the courts? Trained independent judges? Or would you rather it was the editors, whose commercial interests lie in publication. If you even need to give it a second thought, then you only need to think for a moment about what we learned of the mind of a tabloid editor from Mr MacKenzie's performance at the seminars. And we heard what Mr Myler too said at the trial of Mr Mosley. He published the story even though he knew Mr Mosley would probably have succeeded in injuncting it if a court had been allowed the opportunity of hearing the application. Again, this is a point which I am more than happy to debate, but it is better perhaps if I commit these legalistic arguments to writing. Before we look at the real area of journalism, as I say, where these arguments are tested, namely kiss and tell stories, let me say one or two words about the much discussed topic of public interest. The difference between what is truly in the public interest and what the public are interested in is much simpler than newspapers like to make out. Indeed, it is rather simpler when one realises something which Professor Cathcart pointed out in one of the seminars, namely there are two different senses in one which uses the word. There is on the one hand interest in the sense that I like something, like I have an interest in football or holidays in the sun, or interest as in something which is good or bad for me, like I have an interest in the outcome of a particular decision made by chambers, for example, to put up my rent. Of course, I can understand why the newspapers have an interest, in the second sense of the word, in confusing these two concepts. After all, what the public are interested in, in the first sense, sells more newspapers: celebrity gossip, generally tittle-tattle; and what the public have a genuine interest in knowing about: drug trials, what goes on in Europe with the Central Bank and so on, mostly doesn't. As I always tell my children, things that you enjoy are rarely good for you, and I'm sure if they can understand it, I'm sure journalists can too. I'm not advocating boring newspapers. Don't get me wrong, I like to read about gossip too. Most people do. But just because I like to doesn't mean that I should, or that newspapers should be able to invoke that curiosity, that prurient interest in such matters, to defeat an individual's wish to maintain respect for the boundaries of their private life. It is important to remember the distinction which the Convention on Human Rights makes between these two different and recognised roles of the press in society. Namely, on the one hand, reporting facts, even if controversial, which are capable of contributing to a debate of general public interest in a democratic society, what we like to call the press as a public watchdog. And on the other hand, its role as reporting on the details of the private lives of well-known individuals. The former has a legitimate interest for the public. The latter does not. The Strasbourg court has said as much. Even though it refused Mr Mosley's complaint about the lack of a requirement in this country for prior notification, it repeated the importance of the press as a public watchdog, and therefore recommended that any constraints on this role should be narrowly constructed, given the importance of this kind of expression. However, as to the role in its provision of sensational and lurid news, intended to titillate, it said, or entertain or satisfy the curiosity, your voyeuristic curiosity, as it described it, of a particular readership, it recognised that that was a limited role as compared to the importance to maintain the private lives of citizens, even if they have a public profile. I would certainly not quibble with any of that. There are various myths which have grown up around the term "public interest", ones which are often peddled through the press when arguing against these injunctions. Not in court, since, as Mr Rusbridger confirmed, they rarely do contest them in court, because obviously they are hopeless, but rather through the pages of their newspapers where they believe they can influence the public more directly. As I say, I won't take up time dealing with them now. Nor the associated problem of how, even when such orders are granted by the courts to protect the privacy of individuals, and often accompanied with anonymity orders, that they are somehow undermined by the press. Indeed, there is nothing particularly remarkable about anonymity. It is just the way of protecting the whole purpose of an order, but it does seem to offend against the sensibilities of a certain section of the press who do their utmost to try and undermine this anonymity, producing, as they do, just enough material to speculate, and for that speculation to become rife about the identity of the individual whom the court has deemed worthy of protection. Returning then to kiss and tell stories and chequebook journalism -- I think it's probably convenient now and we'll resume again at 2.05 pm. (1.05 pm) (The luncheon adjournment)