(2.05 pm)
MR JAY
Sir, the next witness is Mr Flanagan.
MR DINGEMANS
I had one question I understood I was going to be able to ask?
LORD JUSTICE LEVESON
Of course you did.
MR DINGEMANS
That's all right. I know it's not very valuable, but I'd still like to ask it.
LORD JUSTICE LEVESON
Well, that's a good trailer. Questions by MR DINGEMANS
MR DINGEMANS
Can I take you to the article of 1 December 2007, for you sir the reference 1645. You were asked what was your contribution to this article and on quick scanning through, you couldn't work it out. Can you read the fourth paragraph up from the bottom?
A. Yes.
Q. Does that help answer that particular question?
A. Yes. I think it was a meeting between the British ambassador and police officers at the head of the investigation and the Portimao District Attorney at the police headquarters in Faro.
Q. Just in case people have no understanding of how joint headlines and bylines work, does that mean, because your name appears on the top, that this is like a sort of lawyer's letter with two names at the bottom, or legal advice that is prepared by counsel, that is prepared and signed and not altered, or do you just file separately and it gets put together back in London?
A. The first name on the byline is normally the person who is putting it all together. My role was as I stated. I went to the airport, I'd literally just landed and it was near the police station so I went straight there and I just stood there and witnessed what was going on, and all I did was relay that, I can't remember, either to the news desk or to the reporter, but it was just simply what I saw which was again police officers wouldn't talk to me, but I saw the people involved leaving.
MR DINGEMANS
Thank you very much.
LORD JUSTICE LEVESON
Thank you. Mr Dingemans, you were probably right, but it's important to be clear. Thank you.
MR JAY
Thank you, Mr Pilditch. It's Mr Flanagan next. MR PADRAIC FLANAGAN (affirmed) Questions by MR JAY
MR JAY
Make yourself comfortable, please, Mr Flanagan. Your full name?
A. Padraic John Flanagan.
Q. Thank you. I hope you'll find in the bundle in front of you under tab 1 your witness statement, which is signed and dated 12 December of this year, and appended to it is a statement of truth. Is that right?
A. It is.
Q. Is this the evidence which you stand by, as it were?
A. I do.
Q. You have been a journalist, you tell us, for 21 years. You followed a typical career path, if I may say so, through regional press and then you joined the national press, indeed the Daily Telegraph in the year 2000 where you have stayed ever since; is that right?
A. The Daily Express.
Q. Pardon me, the Daily Express. You now are a senior news reporter at the Daily Express, is that so?
A. That's right.
Q. You tell us in paragraph 2 that you were the third journalist sent by the Express to Portugal to cover this story. You remained there for more than a month. You visited Portugal four times, usually fortnightly spells, to cover the story. A lot of what you say has already been covered by the previous witness, but did you have any sources on the ground in Portugal which differed from those that Mr Pilditch was talking to us about?
A. I don't know all Mr Pilditch's sources, but I was checking this morning my records and I had between 50 and 60 names and numbers of people that I called regularly on this story. Not all of them in Portugal. Some of them, the extended families back in Britain, but there was a wide variety of sources that I used in Portugal.
Q. In relation to the Portuguese police, can we identify who your sources were? You had no one in the police itself, since they officially could not speak to you, is that so?
A. Yeah. It was impossible to get any official comment from the police.
Q. Right, so sources around the police, we've heard of two journalists and a translator. Were they the individuals who were effectively your sources as well?
A. Probably more than two journalists, I think. There were lots of TV, radio and newspaper crime specialists who were who we made contact with and became friends with, and we helped them on the British side of the story and they helped us on the Portuguese side of the story.
Q. Right, but did they have contacts within the Portuguese police?
A. Yes.
Q. Thank you. Can I ask you, please, about specific stories you wrote. I think the first of these is paragraph 11, 25 October 2007, which is page 31664. You'll find this in the bundle you have probably under tab 4.
A. Yeah.
Q. "Police want answers to 14 questions." This is dated 25 October 2007. Can we be clear who the source is for this story? The answer may be found seven lines from the bottom.
A. I think this story originated actually in one of the Portuguese newspapers and it was written by a journalist I became friends with and I called him up and asked him where he'd got it from and he said he was shown these 14 questions in a document that was to be sent over to British detectives, and said it was absolutely true. That's where it came from.
Q. So when you say "a source within the Policia Judiciaria"
A. Yeah, that's via him, via the journalist.
Q. So the journalist who has written the piece in the Portuguese paper, that was his or her source, and then you're setting this out here in your piece; is that right?
A. Yes, it is.
Q. Can I ask you, about ten lines from the top of the story: "Investigators believe [do you have that?] that members of the party dubbed the Tapas Nine after the Spanish themed restaurant they were in when Madeleine disappeared may have been involved in the crime." Where did you get that from?
A. From the same source.
Q. How was it put to you?
A. I was talking to him as I often did about the latest developments that he'd heard and, telling me about this dossier of questions, he also told me about that he thought the members of the friends that were with the McCanns at the time of the disappearance may have been may have had something to do with that.
Q. Anything more specific or was it at that level of generality?
A. Yeah, it was that general.
Q. How did you believe that this piece, this story, if at all, could be stood up if it ever came to litigation?
A. Well, it would be very difficult to do that. I think it needs to be said that I wasn't sort of working alone, as it were, in Praia da Luz, scratching around for something to send back. These stories were all the result of conversations with the news desk about the strength of them and the sources, and a view was taken whether to proceed or to drop it. I mean, I'm not trying to evade responsibility, but I had to make it clear to my superiors, you know, the strength of the story and whether it was something that they would want me to write up later in the day.
Q. So is this your evidence: you did make it clear to the news desk that you felt that it would be difficult to stand up this story if it were ever tested?
A. Well, I illustrate I don't think I would put it in those stark terms, because at the time, working in Portugal surrounded by every rival newspaper who were working on the same stories, it was my duty to tell my desk what the sources were and where the stories were coming from, but I didn't feel as though it was my sole decision to establish, you know, the whether I could stand up in a court of law and defend it.
Q. No. But in order to assist their decision, did you share your misgivings about the ability to stand this story up with the news desk or not?
A. No. I think once you'd told them the sources and where it had come from, then they could draw their own conclusions.
Q. Mm. How would they do that?
A. Well, by reading what I've written.
Q. Right. So you felt that it would be obvious to the news desk, given that you had misgivings about being able to stand this story up, you needn't spell it out to the news desk, they would make the same deduction; is that the position?
A. Broadly. Working in Portugal, the first question you asked yourself wasn't: can I stand this up? It was: what can I find today? What's the best material that I can offer the news desk and keep up with my rivals and do what I'm being paid to do? Considerations of the law, you know, were always going to be further down the line that day for my superiors.
Q. That's a very frank answer, Mr Flanagan, but are you telling us that the predominant consideration, given all the pressures you were under to produce a story, was to produce really the best you could and then leave it to others to worry about the legal niceties?
A. Well, it's quite a stark way of putting it. You would be discussing with the news desk through the day what you were doing, what was happening in Portugal, what were the likely best lines of the day. I mean, bear in mind that although we're concentrating on single stories here, you know, it's highly likely that when I was writing this, I might have been writing a front page story and a spread inside the paper, so there would be an awful lot of material to work through. So it what I'm trying to say is that there were constant discussions and I felt that the desk were fully aware of what I was doing and the strength of the material.
Q. So judgments about whether to publish in the light of obligations under the PCC code, clause 1, the accuracy requirement, would be for others, not for you; is that what you're saying?
A. Ultimately, yes.
Q. But didn't you feel that you were under an obligation under the code and generally to, if I can put it in these terms, worry about the accuracy of the story?
A. Yes, you would, but you'd also be conscious of trying to do the best that you could to stand up as much as you could, where you could, but, you know, working in a foreign country under their legal conditions proved very difficult.
Q. Yes. I think that eloquently speaks to the difficulties you were under and demonstrated why it would be difficult, moreover, to stand up the story, but then there's the sort of anterior question: why write the story at all?
A. It would be quite a brave reporter to call the desk and say, "I'm not really sure about this, I'm not going to send anything back today".
Q. Yes.
A. Because
Q. Sorry, please continue.
A. I felt that they could see, if they had the copy, the strength of the material and they could take a view on it.
Q. We're interested in culture and practices. "It would take a very brave reporter". Are you able to elaborate on that a little bit for us, please, Mr Flanagan? It may be so obvious it goes without saying.
A. As you mentioned before, the story was extraordinary, this snowball going down the incline, as you said. Bear in mind that every newspaper, TV, radio reporters were there, there was a huge appetite in the UK for this story and there was a huge appetite for this story on the news desk and the with the editor of the Daily Express.
Q. When it all went pear-shaped, if I can put it in that way, a letter before action, I think there was a claim form, it doesn't matter, there was a decision not to defend the case on liability. Were you surprised or not?
A. No.
Q. Because?
A. I think at the Express they're more likely to want to avoid massive legal bills and I just get the feeling that they're more likely to settle cases out of court rather than fight cases.
Q. Even though the damages in this case were mega, weren't they? Okay. I'll ask you about one other piece, Mr Flanagan, at 31619, 22 January 2008. Do you have that one?
A. Yes.
Q. "The manhunt by Madeleine investigators prompted by a drawing of a possible abductor is designed to divert suspicion from Kate and Gerry McCann, the Portuguese police believe. "Last night, sources in the Policia Judiciaria revealed reports of a dishevelled man lurking around Praia da Luz were investigated months ago and found to be groundless. "One stormed: 'The purpose of this latest exercise by the McCanns is the same as always. It's another diversionary tactic.'" So again the "sources in the PJ", that was the journalist, not a policeman; is that correct?
A. Well, it was a policeman source of the journalist.
Q. Was this piece based on anything other than an article in the Portuguese press?
A. I think it was I can't recall exactly, but during the months that we were there a series of likenesses were produced, which always generated a series of stories, and this looks as though this is another release of a likeness presumably based on Gail Cooper's description to an FBI-trained artist. But, yeah, the retired PJ inspector, Moita Flores, was often on Portuguese TV and I think that would be where his quote came from.
Q. Did you feel under pressure to deliver? Almost a continual stream of this sort of story? Otherwise in one sense you weren't doing what was required of you?
A. Yeah. For the Daily Express to send overseas, spend that money on a news operation in a foreign country, is considerable and you're sent there to produce stories. It's quite clear that's what you're there to do, rather than sort of investigate yourself and decide whether there's anything worth writing about.
Q. You tell us in paragraph 19 of your statement there was almost or there was constant dialogue between the news desk and reporters. Did the news desk ever come back to you with this sort of message: "Either we or the editor is concerned about a particular piece; could you stand it up for us, please, explain the reliability of your source?" Was there ever that sort of conversation?
A. I don't remember a conversation like that, but there might have been.
Q. You don't remember one?
A. I don't remember one.
MR JAY
Yes. Those are all the questions I have for you.
LORD JUSTICE LEVESON
I'd like to use the word I used before. These were clearly very fragile stories in the sense that it was all I used the phrase tittle-tattle, but information coming from somebody who was getting information from somebody else, who wasn't supposed to be saying anything anyway.
A. Yes.
LORD JUSTICE LEVESON
That's certainly right. You told Mr Jay that you had some concerns about that. Did you do anything at all to express concern that a lot of theorising was taking place, no solid fact, and this was a great risk?
A. I didn't raise it specifically. I didn't phone and ask someone and say, "Look, I'm really worried about this", but I think everybody was aware of the strength of these stories, how fragile they were. I think it's sometimes the case on crime stories that this kind of procedure takes place where there's supposition and theorising in the absence of any hard information being released. It's a kind of natural tendency to fill a vacuum, and with the Portuguese police's stance on speaking to the press, there was a very large vacuum there.
LORD JUSTICE LEVESON
And you mentioned that all your competitors are there. But who takes the decision well, I suppose I can answer my own question. The decision as to what is right and what is not right is not yours; is that fair?
A. It's partly mine, I think. I do I do have some responsibility, but, for instance, I can't write a story that I know to be a lie and claim to the news desk that it's true.
LORD JUSTICE LEVESON
No, I hope we'd agree about that.
A. But, also, the news desk and the editor also have a key role.
LORD JUSTICE LEVESON
I understand that, and I'm sure you're right. But you appreciate that I am looking at this phrase that we bounce about customs, practice and ethics all the time, and I'm just trying to grasp the nature of the problem. You've been sent out to Portugal, it's costing a lot of money. All your competitors are doing the same. There's enormous pressure, which you've told Mr Jay about, to file something, you want something that's interesting, that's going to command attention. Where does balance, fairness, propriety come into it all?
A. I'm not sure I can answer that.
LORD JUSTICE LEVESON
Well, does it have a place at all?
A. I think it does, but
LORD JUSTICE LEVESON
I'm pleased you said that.
A. it's very difficult on any given day to be able to look at a story, as we are now, in the whole. We know some things to be false, a lot of things to be false, that we didn't know at the time. I think what you try to do is faithfully and accurately report what you're finding out from people who know more about what's gone on than you do.
LORD JUSTICE LEVESON
You see, one of the things you could have said in these articles, repeatedly, is, "This is an impossible job. The police won't talk to us, they're not permitted by law to, but for some unusual reason they're prepared to leak like a sieve to people they know, who will then tell us. How accurate all this is, who knows?"
A. Well, there were critical reports of the Portuguese police. There's a convention that newspapers don't tend to write about their own problems, they don't write about journalism, they don't write about the challenges that reporters are facing to gathering stories. Maybe in the media sections of the broadsheets they will, but it's not saying
LORD JUSTICE LEVESON
But don't you think and I don't edit a tabloid newspaper, indeed any newspaper, but don't you think that's itself a very substantial story? You all back in the UK want to know about this missing girl. We want to give it to you. We want to find out. And this is the problem we've got.
A. Mm.
LORD JUSTICE LEVESON
And the result is that "Everything I say you must now take with a pinch of salt." Because you personally were taking it I'm not saying you didn't believe that you were being given genuine information, that's the honesty bit that you mentioned, but I rather gather from the thrust of what you say that you did not find this particularly comfortable, so you're saying that's not a story?
A. I think it is a story, but then you're faced with the problem: what do you fill the paper with the next day?
LORD JUSTICE LEVESON
But the one thing you don't want to fill the paper with, surely, is stuff that is terribly damaging to people and may be complete piffle.
A. As I said, I think all you can do is the best that you can in the circumstances.
LORD JUSTICE LEVESON
Yes.
A. That's the dilemma. And it's true that especially reporting on crime stories, you know, the effects on the families of victims is appalling. And I would like to take this opportunity to apologise to the McCanns for adding to their hurt and distress through what I wrote. Only a week or two ago we had an advisory from the Dowlers reminding us about the effects of seeing a photograph of their murdered daughter in the paper every time somebody wrote about the deleted emails story, and it brings it home to you what a searing experience it must be to keep being reminded. So we are mindful that these stories can be incredibly distressing, but at the heart of the story it is a crime, a little girl went missing, and while I was out there, that was the focus.
LORD JUSTICE LEVESON
I understand. But it's not as though the problem is unique. I mean, one can look at what happened and I'm not in any sense asking you questions about it, but one could look at what happened to Mr Jefferies thereafter. And everybody goes like a train at a story, which is destructive. I have made it very clear that I am an absolute believer in freedom of expression, there's no question. But I am concerned to find a way of identifying balance, which might, I appreciate, mean that the story is not in such bright colours.
A. I think that's a reason why we're all so interested to hear what you conclude.
LORD JUSTICE LEVESON
You're not alone. All right, thank you very much. Thank you very much indeed.
MR JAY
The last witness is Mr Fagge, please. MR NICHOLAS FAGGE (sworn) Questions by MR JAY
MR JAY
Your full name, please, Mr Fagge?
A. It's Nicholas Hilton Fagge.
Q. Thank you. You provided us with a statement which bears yesterday's date. It doesn't have a statement of truth on it, but that's not a criticism, Mr Fagge. Do you stand by this statement as your evidence?
A. I do. I don't think I have it with me. It's in the other bundle. Excuse me.
LORD JUSTICE LEVESON
Do you not have a copy?
A. My statement is just there. Excuse me.
LORD JUSTICE LEVESON
That's all right.
MR JAY
Mr Fagge, dealing with your career, you started as a journalist after a career in advertising in 1996. You obtained your NCTJ qualification. You then worked in the local press in Camden and then via the National News Agency and Ferraris; you joined the staff at the Daily Express at the end of the year 2001, is that correct?
A. Correct.
Q. You left the Express in August 2010 and you're now a staff news reporter at the Daily Mail?
A. Correct.
Q. Thank you very much. You tell us in paragraph 2 your experience at the Express. You had covered a series of major news stories, the tsunami in Sri Lanka and Indonesia, criminal proceedings relating to the murder of Caroline Dickinson and various other high profile stories, is that so?
A. Correct.
Q. You also speak French and Spanish, which was relevant, I think both languages, relevant to the Madeleine McCann case; is that so?
A. Correct.
Q. You explain in your statement how you were involved in the Madeleine McCann story. First of all, you went to Morocco in September 2007 because you speak French and you were following up a lead there, I believe; is that right?
A. That's right, yeah.
Q. And then you went to Portugal. In Portugal, we've heard about sources close to the PJ, two journalists in particular, and a translator. Were your sources the same or different?
A. My sources certainly would be amongst those, as we all made friends with different people and there were different people there at different times, I certainly had two journalists I trusted and spoke to almost well, on a daily basis, as well as other people I spoke to more infrequently.
Q. Yes. Looking at this at a reasonably high level of generality, because I think we've derived the picture from previous witnesses, did you share the concerns we've heard them express about the ability to stand these stories up if it ever came to litigation or something similar?
A. From the outset of my filing stories from Portugal, I'd always make the news desk aware of who the source of the story was, how much credibility we'd give to it, but ultimately said to them they had to make the decision whether or not they thought it was legally safe, and in fact on the top of every single story I ever filed from Portugal, I would write, "Please legal", as I'm sure my colleagues did as well. This is a reference to ensure the news desk pass the story to the lawyers working for the newspaper to determine whether it was legally safe or not to publish.
Q. But did you, regardless of the steps you took to get the matter covered by legal advice, did you have concerns about the ability of the Express to stand these stories up if it ever came to litigation? Given the nature of your sources.
A. In Portugal, I wouldn't be thinking about if it came to the High Court, in all honesty. I would be doing my best to verify the story as best as I could. I wouldn't be thinking about a potential libel case some time in the future. I think that's unlikely.
Q. But you would be concerned, of course, with clause 1 of the PCC code and the requirement of accuracy, wouldn't you?
A. Yes.
Q. And you'd also be concerned, wouldn't you, in more general ethical terms, that your story should indeed be true, and if the matter had to be tested, you would be able to substantiate your stories, wouldn't you?
A. I'd certainly verify the story as best as I could and try to be as accurate as I possibly could be, but, as you've heard before, you couldn't get the police to verify anything at all, therefore you'd have to rely on less credible sources because you'd have to talk to somebody to talk to somebody else.
Q. Yes. This weakness in the evidence base, if I can describe it in those terms, was that a matter which you expressly communicated to the news desk, or did you cover it simply by the moniker "legal please" or words to that effect?
A. The working day would start about 8 o'clock in the morning, when you'd speak with the news desk, explain what the developments had been overnight, explain what stories the Portuguese papers were running, and you'd probably last speak with them about 8 o'clock in the evening. All through the day they knew exactly what was happening, you'd explain the strength of the stories, and if there were legal concerns, you'd explain them as well.
Q. So were you surprised when the matter, as it were, turned litigious in February 2008 and had to be resolved by a substantial payment to the McCanns?
A. No.
Q. And why not?
A. Because the editor at the time decided it was the only story he was interested in and put it on the front page almost regardless of how strong the story was.
Q. Can I just understand that answer, please? Are you suggesting that he ran the story regardless of its truth or are you suggesting something different?
A. No, not of its truth, but the Madeleine story was on the front page of the Daily Express more than any other newspaper because he decided it would sell newspapers. It became an obsession of his. I don't know quite how what more to say.
Q. Okay, but in the evenings then over a beer in Portugal with your colleagues, seeing this obsession played out on the front pages of the Express, weren't you troubled by the direction in which this was going?
A. Yes.
Q. Okay. We know this was a very big story, we know you've written other stories where the same difficulties haven't arisen, I trust. Was this the only occasion in which this sort of difficulty arose, or are there others?
A. I can't think of another situation similar to this.
MR JAY
Unless it's thought helpful, I'm not going to go through the individual stories because it's the same
LORD JUSTICE LEVESON
The same point.
MR JAY
point. Thank you, Mr Fagge.
LORD JUSTICE LEVESON
Well, you've heard what I've said to your colleagues. If you have any different answers to the questions I've asked, I'd be interested to hear them. It can't just be a question of sales, can it?
A. I think you have to ask the editor that, sir.
LORD JUSTICE LEVESON
I might do. But in relation to a story like this, where you're hearing through several layers, to what extent do you feel it's right, as the journalist on the ground, to spell out perhaps in an article, perhaps some other way, the the word I have used is the fragility of what you're reporting. Or do you think it's just sufficient to say "legal"?
A. No, these would be conversations that I would have with the news editor of the day, or over a number of days. I explained the difficulty of establishing exactly what did happen in certain circumstances, the information I received or the new information I'd learnt about. This would be conversations with the news editor and the news desk in general. It wouldn't merit an article or even really a
LORD JUSTICE LEVESON
But it is a maybe it isn't. I must be wary about seeking to write stories. It is a story, isn't it, how impossible it is to get information that's reliable? Or isn't it?
A. It is a story that was published in the Daily Express and I think a number of other papers about how incompetent the Portuguese police appeared, but Madeleine continued to be missing, the interest in the story remained very high, there were new developments each day, of which the newspaper and the readership were interested in.
LORD JUSTICE LEVESON
And the impact on the victims, that's unfortunate but there it is?
A. Yes. It's tragic.
LORD JUSTICE LEVESON
Is it unfair of me and you're entitled to answer "yes" is it unfair of me to be concerned that after all that happened, then when we got to a similar high-profile case somewhat later, the press broadly act in a not dissimilar way in relation to Mr Jefferies?
A. I wasn't there.
LORD JUSTICE LEVESON
I know.
A. You may take that view.
LORD JUSTICE LEVESON
I think that's probably fair enough. Right, Mr Fagge, thank you very much indeed.
A. Thank you.
LORD JUSTICE LEVESON
Thank you.
MR JAY
Sir, that concludes the evidence for today. I should point out that the statements of Messrs Pilditch and Flanagan were made available on Friday, not yesterday. Mr Fagge's statement, which we've seen is dated yesterday's date, was necessarily only made available to the CPs yesterday, which was as soon as we obtained it.
LORD JUSTICE LEVESON
Thank you very much for that information. Doubtless, it will be passed to Mr Sherborne. Right. Housekeeping
MR JAY
Sir, that leaves any housekeeping matters for 9 January and beyond.
LORD JUSTICE LEVESON
Yes.
MR JAY
Maybe I can move myself to a slightly more comfortable place. The position is that the timetable for the remainder of module one has been circulated to the CPs and I hope you've seen the latest version. We are running three and four-day weeks as before. We are starting on 9 January and we're finishing on Thursday, 9 February. That will conclude module one.
LORD JUSTICE LEVESON
Not entirely.
MR JAY
No.
LORD JUSTICE LEVESON
Because it's likely that there are some witnesses who cover all three modules, who by definition we ought only to call once, and they will come and deal with everything.
MR JAY
Yes. A strategic decision has been taken precisely along those lines, that some witnesses exceptionally will be called twice, for example Mr Campbell, but otherwise we've taken the view, well, we'll call them once, in which module do they most conveniently fit? And that's the way in which we have proceeded.
LORD JUSTICE LEVESON
Yes. We've already had one example, because you asked some questions of Mr Morgan yesterday which touch on module three.
MR JAY
Certainly.
LORD JUSTICE LEVESON
Yes.
MR JAY
In order to facilitate the remainder of module one, we have suggested that the core participants provide a skeleton argument, which summarises their evidence, in particular the evidence bearing on corporate governance and systems. Those skeleton arguments, we hope, will be available in good time for the 9 January start. We will provide, if necessary, further summaries and focus on the oral evidence which is most likely to assist you in identifying culture, practices and ethics, but a lot of evidence will be taken as read and will naturally be considered. But the key evidence will be called in the allotted time.
LORD JUSTICE LEVESON
Very good.
MR JAY
We hope that will work well and will mean that in general terms the Inquiry is on its timetable.
LORD JUSTICE LEVESON
It's a mistake to say that, Mr Jay.
MR JAY
I'm going to continue to stick my neck out and run the risk of being proved wrong, but it is not, of course, the overriding objective. The overriding objective is a fair Inquiry under section 17 of the Act.
LORD JUSTICE LEVESON
Of course it is.
MR JAY
But we have to have regard to the timetable and we'll continue to do so.
LORD JUSTICE LEVESON
If any of the core participants are concerned that there is some feature of the case which we have overlooked or not provided justice to, given that I am not descending into the detail that a number of the examples that have been generated have suggested might be valuable, because I'm taking a much more over-arching view, and only taking two or three examples to look at in a bit more detail, the one of which we've dealt with most of today, then of course I shall listen to any concerns, but fairness remains the watchword that I am trying to apply to all. Is there anything else?
MR JAY
No.
LORD JUSTICE LEVESON
I have something else. I'm sorry Mr Sherborne isn't here to hear this. I think when he opened the case on behalf of the core participants for whom he appears, he said that he intended to provide something in writing to deal with aspects of the case which he would not mention in his opening. I'd be very grateful if he'd make good that I don't say undertaking, but assurance.
MR JAY
Yes, it was written submissions on the law, which would be helpful. If anybody else has written submissions on the law, doubtless we'll get them.
LORD JUSTICE LEVESON
I'm sure we'll get them. I have no doubt we're going to have to analyse where the law of privacy presently stands. The second thing that I'd like those who are acting for core participants to consider is this: there are inevitably some credibility issues that will arise. I take very much on board Mr Browne's point today about specific points not being put, and the concern that cross-examination is inevitably being very restricted, if not effectively prevented. But I would be grateful if the core participants would address themselves to issues of credibility so that by the end of module one, or within two weeks thereafter, if they have submissions on the credibility of witnesses, they can make them in writing. I make it abundantly clear that the reason that I am keen to do that in relation to module one, and I'll hear anybody who wants to suggest that that's not feasible or appropriate, is so that I can consider the narrative and those features that are contained within Count 1 concurrently with the rest of the Inquiry. I am very concerned not to hear the entirety of the Inquiry and then be left at whatever date we finish with volumes of evidence, even more volumes of transcripts, and then left, as it were, to start from scratch on the analysis. So I want to start the analysis, because I do think these three modules are comparatively self-contained, sooner than that. From your perspective, Mr Jay, do you see any problem with that?
MR JAY
No.
LORD JUSTICE LEVESON
Right. I'm going to ask others. I'm sorry, Mr Rhodri Davies, you always seem to get the short straw for a first go and you're entitled to think about it and you can think about it over the break we're about to have.
MR DAVIES
Yes.
LORD JUSTICE LEVESON
But I'm sure you understand why I want to do what I want to do.
MR DAVIES
Yes. One can well see that both from the Inquiry's point of view and probably ours, it's not a good idea to wait until the end of June or July in order to make submissions on evidence which has already been given now. Two thoughts have struck me. One is that two weeks from the end of the evidence on module one may be a bit quick for what might be a significant job, and the other is that of course, as you mentioned
LORD JUSTICE LEVESON
You have the whole of Christmas to do everything in the last five weeks.
MR DAVIES
Indeed there are some things happening in January as well.
LORD JUSTICE LEVESON
Yes, I understand the point.
MR DAVIES
And you have also already made the point this afternoon that there will be some witnesses giving evidence later on matters which relate to module one. So to that extent it would be incomplete.
LORD JUSTICE LEVESON
Yes, but I'm sure Mr Jay could identify, if you can't identify, who those witnesses might be and the impact they are likely to have on the evidence that I've already heard.
MR DAVIES
Yes.
LORD JUSTICE LEVESON
Because although it has legitimately been the subject of questions, I repeat I will not be seeking to analyse precisely who said what to whom or when, or did what to whom.
MR DAVIES
Yes.
LORD JUSTICE LEVESON
Because that would not be fair in the context of part 1 of this Inquiry.
MR DAVIES
No, we are very alive to that, but I just wanted to make the point.
LORD JUSTICE LEVESON
I understand.
MR DAVIES
That there will be an incompleteness there. Whilst I'm on my feet, can I raise two other matters shortly? One is the question of what in fact happened with Milly Dowler's voicemail. I don't want to say anything substantive about that, but it's simply that you indicated that before the Inquiry broke for Christmas
LORD JUSTICE LEVESON
Yes. That's on my list, but by all means address it now.
MR DAVIES
Our position on this is that we have a considerable interest in the material on that, but most of it is not in our hands any more, so I don't think that I can suggest anything positive for the moment. I think it's more in the hands of the police.
LORD JUSTICE LEVESON
So yours is just a gentle nudge to me to remind me what I said so that I say something to require it to be done?
MR DAVIES
Yes.
LORD JUSTICE LEVESON
Thank you very much. It's in my mind.
MR DAVIES
Thank you. The other point, which I only want to mention, is in relation to the Motorman data you made an order orally on Friday, I think, ten days or however long ago it was, which was then quite recently put into writing. To our perception, there is a difference between what was said on that Friday afternoon and the written order.
LORD JUSTICE LEVESON
Oh.
MR DAVIES
I've mentioned that to junior counsel for the Inquiry and I just wanted to get it on the record, because it's had the result that until the written order came out, we were complying with what we thought you had said, which turned out not to be the same as the original order.
LORD JUSTICE LEVESON
You'd better tell me the difference, Mr Rhodri Davies.
MR DAVIES
It's simply this. Our understanding at the end of the Friday afternoon was that we could retain the data on a hard drive, or in fact counsel's hard drive and solicitors' hard drive, I think until the end of the Inquiry, for the practical reason that it's extraordinarily difficult to access it if you wipe it off and return it to a single memory stick every time. The order made is that it should not be retained on a hard drive except for the period it's actually being used. That's the written order. When we saw the written order, as soon as we saw it, we complied with it. So we are currently in compliance with it but it's not quite what we expected and until
LORD JUSTICE LEVESON
I remember the discussion, because the concern expressed I think it might have been Ms Palin(?) who expressed it.
MR DAVIES
I think it was Ms Boase, but I may be wrong.
LORD JUSTICE LEVESON
I think you're right was that it would be difficult for more than one person to look at it at any one time.
MR DAVIES
Yes, exactly.
LORD JUSTICE LEVESON
You're quite right.
MR DAVIES
Particularly if one of them is in Linklaters' offices and the other is in chambers at the Temple.
LORD JUSTICE LEVESON
Yes. Thank you. I'll
MR DAVIES
I just wanted to make sure that was on the record before we broke for Christmas.
LORD JUSTICE LEVESON
Yes. Let me see if I can do more than put it on the record. All right. Thank you.
MR DAVIES
That was all.
LORD JUSTICE LEVESON
Thank you. Let me deal with the core participants who are newspapers first. Mr Caplan?
MR CAPLAN
Thank you, sir. I would like the opportunity to discuss it, if I may, with my team. As far as the issues of credibility are concerned, sir, obviously there are difficulties that arise from the procedure under the Act and the procedure in this Inquiry. I'm not sure in fact it's an issue, I hope, that will concern us as much as others. One issue I think that is of possibly some concern is the narrative. I know that frequently you have stressed that you are looking at the general picture and not the detail, but there are many occasions when we have gone to the detail.
LORD JUSTICE LEVESON
Yes, that's absolutely right, because in order to reach conclusions about the general picture, one has to go sometimes a bit into the detail.
MR CAPLAN
Yes. Sometimes we've gone rather a lot into the detail.
LORD JUSTICE LEVESON
All right.
MR CAPLAN
But clearly I think it's a question of focusing on those issues that clearly are going to form part of the narrative as far as you are concerned, and it may be it's for us to speak to Inquiry counsel to get more particulars.
LORD JUSTICE LEVESON
That's entirely reasonable. The more that everybody can be helpful, obviously, the better. But, Mr Caplan, you will understand what I need to do, not merely to identify the egregious behaviour about which we have heard, but also to ensure, as I think I've also said several times, that it is put into context among the rest of the work of the press.
MR CAPLAN
Yes.
LORD JUSTICE LEVESON
So I want to be balanced and fair, in other words to comply with the very standards that I've just been putting to some of the witnesses.
MR CAPLAN
Yes. Obviously we're all anxious that should happen.
LORD JUSTICE LEVESON
Good.
MR CAPLAN
Thank you.
LORD JUSTICE LEVESON
Is there anything else that you want to raise?
MR CAPLAN
Not at the moment, thank you.
LORD JUSTICE LEVESON
Thank you very much indeed. Mr Dingemans, here you are.
MR DINGEMANS
I have nothing to say, thank you, sir.
LORD JUSTICE LEVESON
Thank you. Right. So the Metropolitan Police? Yes?
MS MICHAOLOS
Sir, as regards the credibility issue, I don't have any submissions to make now and we'd like to consider that over the Christmas adjournment.
LORD JUSTICE LEVESON
Right.
MS MICHAOLOS
As regards what we're proposing to put before the Inquiry in relation to the Dowler issue, Mr Garnham, I understand, has been keeping the Inquiry informed. It is in hand. The Metropolitan Police will be submitting a note to the Inquiry. We hope to have that for some time in the beginning part of the Inquiry sitting in January, but obviously
LORD JUSTICE LEVESON
I hope you have it in time for the beginning part of the sitting in January, too.
MS MICHAOLOS
But I'm not in a position to give any guarantee, which I'm sure you appreciate.
LORD JUSTICE LEVESON
No, I'm
MS MICHAOLOS
The importance of anything being put forward being accurate.
LORD JUSTICE LEVESON
You don't need to persuade me about that at all. Right. Do you say anything about the data point that Mr Rhodri Davies has raised?
MS MICHAOLOS
I don't, no. I can't make submissions about that.
LORD JUSTICE LEVESON
All right, thank you very much. I have not forgotten. Is there anything that you want to say on behalf of Mr Sherborne and Collyer-Bristow?
MR LOWLES
Not at this time.
LORD JUSTICE LEVESON
Thank you very much. The Guardian?
MS PHILLIPS
No, save that we have given to Mr Jay our note on the Milly Dowler incident.
LORD JUSTICE LEVESON
Thank you very much. The National Union of Journalists?
MR HARRIS
No, nothing to add, thank you, sir.
LORD JUSTICE LEVESON
I'm sure you're aware that there's a topic about which I do need some evidence, indeed there are a number of things I think I'm waiting for evidence from you.
MR HARRIS
Yes, sir, investigations are being undertaken.
LORD JUSTICE LEVESON
Thank you very much. Right, Mr Jay? Mr Rhodri Davies raises the issue about data. I could go back to the transcript, but I have a clear recollection of the discussion, even if I incorrectly identified the person who raised the problem.
MR JAY
Yes.
LORD JUSTICE LEVESON
And that was if more than one person wanted to see the data, because different people are working on different aspects of it, there would have to be a facility to store it. I thought that I had agreed that that was a sensible
MR JAY
The issue was batted about a bit and I'm afraid I can't recall what your final view was expressed orally.
LORD JUSTICE LEVESON
No.
MR JAY
My recollection is that that which you put in writing reflected your final position orally.
LORD JUSTICE LEVESON
But I think we'll resolve that in the hour we have for the afternoon. I think I want to resolve that quite quickly.
MR JAY
Yes.
LORD JUSTICE LEVESON
Thank you very much. I'm sure that you'll be able to have a discussion with the other core participants in relation to how views as to credibility might be marshalled first of all to ensure that they are at the right level of granularity I'm sorry and secondly to ensure that they're ordered in a way that's helpful rather than everybody doing what they feel might be helpful and then finding that I have eight different approaches.
MR JAY
Yes.
LORD JUSTICE LEVESON
Thank you very much. Anything else anybody wants to raise?
MR DAVIES
I'm sorry to stand up again. Two things. I didn't know the Guardian had lodged a note with the Inquiry, and I would like to know whether that's going to be available to core participants.
LORD JUSTICE LEVESON
It will be available to core participants in some form, but at the moment it is not.
MR DAVIES
Yes.
LORD JUSTICE LEVESON
I have received it and I know I've received it, but I know that I have received it at this stage on a basis that does not permit me to provide it to others, and I don't think at this stage it's appropriate to do so.
MR DAVIES
Very well.
LORD JUSTICE LEVESON
Thank you.
MR DAVIES
And so far as the Motorman data is concerned, I have to say, I wasn't here on that Friday afternoon, but Ms Boase tells me that what happened was you gave an oral judgment, she then raised the practical problems
LORD JUSTICE LEVESON
That's true, she's right.
MR DAVIES
and that you indicated that you would modify it.
LORD JUSTICE LEVESON
I remember it. Thank you. I will solve it and, if necessary, amend the order before concluding this evening.
MR DAVIES
Thank you.
LORD JUSTICE LEVESON
Ms Phillips, I've accurately understood, I did not mention when Mr Davies identified material because of the basis upon which I received the document, but I'm sure that there will come a time when, whether in that form or a slightly different form, it will have to be made available.
MS PHILLIPS
I think that's correct. I think at the moment because everybody is putting in what they are putting in and because nobody is seeing what everybody else is putting in, then there will need to be a process devised so that if people want to pick other people's things apart or whatever, we all have the same opportunity.
LORD JUSTICE LEVESON
I understand that. Once more, I shall be fair about it.
MS PHILLIPS
Of course, thank you.
LORD JUSTICE LEVESON
Thank you very much. It only then leaves me to thank everybody for the very hard work they've put into the Inquiry, both in its preparatory stages, and since we started in November. I'm conscious that some of those appearing before me have looked greyer on some mornings than on other mornings. Nobody said it would be easy. And I hope that in addition to doing all the tasks that I've set for everybody, they have an enjoyable break. Thank you very much indeed. (3.12 pm)
