Mr Toulmin, we're on tab 51, the letter from the Guardian of 10 July 2009. You were given certain advice by Mr Rusbridger: "May I suggest that you: "(a) Write to the Information Commissioner to ask him to share all the material his office gathered during his Motorman man investigations. To my knowledge, the PCC has never asked for or seen this material, which would give you a good idea of the extent of the problem of hacking and illegally obtaining private data." I think the position more precisely is that certainly after the publication of the two reports in 2006 Mr Thomas made it clear that the names of the journalists were not going to be shared with anybody, including the PCC, but I think Mr Rusbridger is right, is this correct, when he says the PCC has never asked for or seen this material?
A. Well, we touched on this earlier. My recollection only is that Sir Christopher Meyer did ask to see it, though you might have to check that with him tomorrow.
Q. Okay: "(b) Write to News International to ask them to share with all the documentation relating to the use of private detectives which is in the possession of Scotland Yard. If they have not retained copies they could, I imagine, ask Scotland Yard to release copies of the material to you." Was any consideration given to that?
A. Well, consideration was given to all these points by the Commission when it met. So they would have discussed the way ahead and the most appropriate thing to do, given the limited powers available to it, and then they would have proceeded accordingly. So the answer so your question is: yes, consideration would have been given to it.
LORD JUSTICE LEVESON
But you didn't need power to ask, did you?
A. No, but I'm saying the Commission would have considered that point based on its approach to the whole matter. The question was about whether consideration was given to it.
And then (c): "Make direct enquiries (as you have not, I believe, so far done) of News of the World executives and reporters around the time of the Gordon Taylor, Clive Goodman and Motorman exercises. The names of the relevant journalists will be found in the Motorman and Scotland Yard papers." Putting to one side Motorman, again, he's right, isn't he, in saying that you hadn't made direct inquiry of News of the World executives and reporters save for the letter that was written to Mr Myler; is that right?
Q. Was that issue ever pursued?
A. Well, I think the answer to that should be found in the subsequent copies of correspondence between me and the newspaper. That was the result of the approach that the Commission decided on at its various meetings that it had before it pronounced on the subject.
Q. Well, the matter then continued, as it were. We can, I think, deal with the subsequent correspondence quite economically. Let me just identify it. At tab 32, there's a letter from you to the chairman of the DCMS committee dated 13 July 2009.
Q. You make the point I paraphrase that the PCC doesn't have formal investigatory powers so there was no question of launching a broad inquiry. You wanted to complement the police inquiry. Then you say on the second page, eight lines down: "We're also testing News International's 2007 submission to us against the claims made in the Guardian, to see whether there is any truth to the suggestion that we were misled." I think there were two aspects to this: not merely the aspect of a continuing investigation but also the parasitic aspect of whether News International, particularly Mr Myler, in his submissions to you, had misled you, which in itself would have justified further inquiry and investigation. Do you see that?
Q. That, presumably, was a matter of great concern to you, because if Mr Myler had misled you, that would have certain serious ramifications, wouldn't it?
A. Yes, it would.
Q. Mr Abell, in fact, wrote to Mr Davies next at 40743 under tab 54, asking for further evidence. This was in, really, the aftermath of the Guardian piece on 9 July. At tab 56, you ask some further questions of Mr Myler. Can I just draw your attention to the first bullet point: "Does it remain your position that the illegal behaviour of Clive Goodman was a rogue exception and that no other journalists or executives of the newspaper were aware of the practice?" That was the first time you had put that specific question to anyone at the News of the World, wasn't it?
A. I should think it was.
Q. Then the top of the next page: "It has been pointed out that while Clive Goodman was a royal journalist, most of those names said to have had their phones tapped are non-royal figures and the judge in the Goodman/Mulcaire case apparently referred to Mulcaire dealing with others at News International. Can you identify these individuals and what the judge was referring to?" So that was, if I may say so, a rather good question, but the first time you'd put it, I think?
A. (Nods head)
Q. It was obvious that at that point you had read the transcript and perhaps less obvious that you'd seen it before; would you agree?
A. Yes, I think that's probably right.
Q. You got a very strong letter back from the News of the World, Mr Myler, tab 57, which we've looked at with Mr Myler. Our page 40725, where he says very clearly: "The allegations by the Guardian were not just unsubstantiated and irresponsible; they were wholly false." He really adheres to the position that it was only one rogue reporter, doesn't he?
A. He does, very strongly, I would say, yes.
Q. What happened after then was that further questions were asked, in particular in relation to, I think, a leaked report of a police officer that there were 6,000 mobile phones hacked, and that was specifically denied. Your report came out in November at tab 67. Do you see that?
Q. I say "your report". Is it fair to describe it as you being the principal author of this report?
A. Well, what happened was that the PCC looked at this issue over, I think, three different meetings, and it was very unusual in the sense that normally what would happen would with a complaint is that the PCC secretariat, headed by me in those days, would produce a draft recommendation for discussion to start off the discussion. In this case, it was unprecedented and I was uncomfortable about doing that, so the board of the PCC looked at two meetings at the issue, and on the second occasion I drafted a summary of where we'd got to, in order to take instruction from the Commission about what further should be said about the conclusions. So it was actually the other way around from normal.
A. So far as I remember. So whilst I will physically have typed the words, they were the they amounted to the decision of the Commission.
Q. Thank you. I think there was a draft at tab 57 sorry, it's not tab 57. I have seen a draft.
A. There is a draft that then went to the third meeting, I think. That may be what you saw.
Q. Tab 61 is one of the drafts.
Q. We can read indeed, have read the report as a whole. The conclusions are at page 41341 at 13.1. Do you see that?
Q. "The Commission's latest inquiry into this matter has been concerned with whether it was misled by the News of the World during its 2007 investigation, whether there's any evidence that phone message hacking has taken place since 2007 when it published a list of recommendations." Then there's some expository sentences. It's 13.2, "Was the PCC misled?": "The Commission has spoken to and obtained information from a number of people and sources." To identify those, primarily Mr Myler, but there was also material in relation to Mr Davies, I think, but quite limited, and subsequently, I think, further information was obtained in relation to this police officer I've mentioned and the 6,000 mobile phones.
Q. But that wasn't available, I think, at this point?
A. That's right.
Q. You say: "Set against the Guardian's anonymous sources are a significant number of on-the-record statements from those who conducted enquiries and have first-hand knowledge of events at the newspaper. While people may speculate about the email referencing Neville, the Taylor settlement and the termination payments to Mulcaire and Goodman, the PCC can only deal with the facts that are available rather than make assumptions." Had you seen the email referencing Neville?
A. Yes, I think that was in the bundle that went to the Commission in the papers that were supplied based on what had appeared in the Guardian. Obviously not the whole thing, though, because I think
Q. It had been substantially redacted.
Q. But that was available to you, was it?
A. I'm fairly sure it was you will have it in the papers, but I'm fairly sure it was in the bundle that went to the PCC.
Q. I think I know the answer to this. Did you ask to see any of the papers which bore on the Taylor settlement?
Q. To see any of the papers which were relevant to the Taylor settlement?
A. From the News of the World?
A. No, we didn't, no.
Q. So when you say "the PCC can only deal with the facts that are available rather than make assumptions", you probably mean the limited facts which you had obtained from Mr Myler or were otherwise in the public domain; is that correct?
A. By virtue of the Select Committee hearings that were going on and the public statements of the police, yes.
Q. Of course, the conclusions of the Select Committee weren't published until February of the following year and we can recall those. "The PCC has seen no new evidence to suggest that the practice of phone message tapping was undertaken by others beyond Goodman and Mulcaire or evidence that News of the World executives knew about Goodman and Mulcaire's activities." You probably regret that sentence now, you'd say, with the advantage of hindsight?
A. Well, I think what I'd say about this is that this was what the Commission wanted to say at the time. I, as the secretary, was responsible for capturing that. I think it was obviously wrong and I think the decision to make a sort of qualitative judgment on the evidence before us in terms of dismissing the Guardian's evidence was a major mistake. There's no doubt about that. It's very regrettable that that happened. So of course, yes.
Q. Are you saying that the decision to make a qualitative judgment on incomplete evidence wasn't really your decision but the Commission's decision?
A. Well, I don't I mean, the director of the PCC doesn't make decisions. They're an official. And as I said to you and you can see at tab 61 when this went to the Commission for the second time, there were no conclusions. There were no draft conclusions then because it was unprecedented and it was important for the Commission to meet and discuss the way that they wanted to handle it and what they wanted to say.
Q. The first time we see any conclusions in a draft report if you look at tab 65, please. This is the iterative draft of 29 October 2009. If you look at 41043, you'll see conclusions which look very similar to the conclusions we were reading in the final version.
Q. This is obviously a report which is going to the Commission as a whole, but can I just understand how it worked. Was there an earlier meeting at which the sort of conclusions it wanted to reach was discussed?
A. Yes, that's what I'm saying, exactly.
Q. And you then put those ideas into formal terms
A. That's exactly right. So there was a meeting it would have been in the September. I think somewhere in all these bundles I've actually seen some sort of notes relating to that, or interaction with Commissioners. The PCC will have all of that sort of stuff. Where there was a exactly as you describe, a discussion about what should be said and could be said based on what had been discovered, and then it was my job to go away and capture that. That was then sent back in the draft, which you see at tab 65.
Q. So I should really be asking the Commission, not you, to explain these conclusions; is that fair?
A. Well, what I can do is give you an insight. Obviously I was in the room but in terms of the decision-making responsibility, that was for the board.
A. And I wasn't a member of the board.
Q. Fair enough. So when we look at paragraph 13.3 of the conclusions, back at page 41341, it having been stated that there's nothing to suggest the PCC was materially misled during its 2007 inquiry again, the word "inquiry" is used but that one's been flogged dead as a point, but at 13.3: "Indeed, having reviewed the matter, the Commission could not help but conclude that the Guardian's stories did not quite live up to the dramatic billing they were initially given." I mean, that statement and the language (inaudible) in which it is formulated comes then from the Commission; is that right?
Q. That, I suppose, is the one sentence which everybody has alighted on as being, with the advantage of hindsight or otherwise, the most problematic?
A. Well, it's a major mistake, and so far as I've had any influence in hindsight, I wish I'd done something to take it out, but I was the secretary of the board and that's what they wanted to say.
LORD JUSTICE LEVESON
It wasn't just a one-off, because it was in your draft.
A. Yes, because, as we've just
LORD JUSTICE LEVESON
I understand. So they had time to think about it.
A. Yes, but I do think it's important to say I mean, it clearly has achieved significance in hindsight and it was a major mistake and a hostage to fortune, but the board of the Commission, so far as I can well, I can certainly attest to the fact that these were people approaching this matter in good faith, trying to do something of use, and by the time we got into 2009, of course, it was too late to pretend that the PCC had never done anything about it, because they'd already had that 2007 report. There was nothing in it for the members of the Commission and the impressive lay members to deliberately land the PCC with this major problem of falsely suggesting that the Guardian's story wasn't as important as it seemed.
Q. Mm. Maybe a more parsimonious approach might have been to have said in the conclusions words to this effect: "We still haven't carried out a full inquiry because we believe our powers are circumscribed, and the limited inquiries that we have carried out, of Mr Myler in particular, appear to demonstrate that these activities did not go outside Mr Goodman and Mr Mulcaire. On the basis of that limited information and Mr Myler's assurances, we can't conclude that we were materially misled back in 2007." Full stop and left it at that. That might have been a bit wiser, mightn't it?
A. I think that sound much better.
LORD JUSTICE LEVESON
How about: "Actually, we're not a regulator at all. We're a complaints mechanism, and it's a misunderstanding of what we do to think that we have anything to do with this at all in the absence of a complaint."
A. Well, again, that was that would have probably have been preferable, but rooted in the activity of 2007, which was to look into how the newspaper was applying the code and whether there was this sort of structural problem. It had got into it for better or worse, and then there was an allegation it was misled and we've heard that that would have been very serious, so it was in a very difficult position.
LORD JUSTICE LEVESON
But if you'd said that first time around, then the industry could have thought about ways of getting to grips with these questions. As it is, all the industry has ever said is: "Well, there's a wonderful self-regulatory system."
A. Well, these matters are very obvious now. I think that all I can say is that in 2007, in the expectation that the issue had been the criminal issue had been dispensed with by the courts, the PCC in good faith wanted to do something that would be valuable to the public in order to make sure these things didn't happen again, and that was the genesis of this activity. Of course, it's easy to pinpoint where it could have taken a decision not to have got involved at all at this stage.
LORD JUSTICE LEVESON
I'm not necessarily driving at just using hindsight. I'm driving at: what should the system be now?
LORD JUSTICE LEVESON
Whether it's good enough, whether it does what it says on the tin or whether it needs improvement, and if so, in what way.
A. Well, I think there are a number of things that can be done to improve it. Perhaps we'll come onto those once you've finished with the phone hacking. I don't know.
I think I probably have, apart from well, I won't ask that question. The future, then, Mr Toulmin. You are no longer, as it were, constrained by any loyalty to the PCC, although I'm sure you still possess it, but speaking frankly, where do you see the way forward?
A. Well, I think it's important, since you're looking at structural things, to very much preserve the very, very good work that the PCC does, and now I'm on the other side, I have used it on behalf of my clients and it does provide an excellent, quick, free service which resolves things on the go. And if you're a type of person who is on one of the newspaper websites, which reach now many, many millions of people, you're not so interested in what's going on happen in a few months' time; you want it changed as matters unfold. And I think the PCC is very well placed to help with things like that, and I think preserving that ombudsman service, which it does do brilliantly, is essential. In terms of the phone hacking lessons, obviously I think the PCC would maintain it never tried to get to the bottom of the issue because it couldn't, and I think actually what we've been talking about today in terms of 2009 shows in very sharp relief the limitations it was under, but I think there's talk of having some sort of separate standards body that would do that, but that, I think, maybe should be separate from the complaints-driven things. In terms of the membership of the Commission, that's obviously a major problem, having one newspaper group outside. I think ways must clearly now be found to make sure that people take part. One of the issues, obviously, is the passage of time. In 1990, when the PCC was set up, all the groups were agreed that this was the right thing to do, but proprietors change and editors come and go and people's agendas change and so on, and there must be some mechanism available. I think the that the industry will be given the chance or may be given the chance to show how that can be done, and if not, then it might just be the time to come up with a simple piece of legislation that just outlines that the industry should come together and provide an ombudsman service for the members of the public, because, at the heart of this, really, is protecting the public from what can be, obviously, the overweening, occasionally, power of the press. And finally, I think I'd say that the landscape around the PCC was clearly changing. It was set up before the days of the Internet, before the days of the Human Rights Act, and as I said before, the time that proprietors thought it would be a good idea to come out of the system on the basis of not liking the biscuits or whatever it was, and clearly issues around the Commission have changed, and one of the most significant ways is the development of privacy. And what has happened is what a lot of people warned would happen, which is that you've had a sort of a two-tier system. There's no we actually developed some ways of obtaining compensation for people in a voluntary way but I think there needs to be a recalibration of that, so that I think there's become an expectation that privacy intrusions will be compensated in some way, perhaps not all of them, but certainly the more serious ones.
Q. I've been asked to put this question to you in relation to the McCanns, particularly the period September 2007 to January 2008, when there were 38 defamatory articles in the Express and arguably others in other newspapers, and it's said the PCC did nothing during that period. When you were watching what was going on or not going on, did you form a view, even privately, about the desirability to intervene or not to intervene in that particular, if I may say so, egregious case?
A. Well, I think what we've clearly established here is that the PCC is a complaints body. It needs the engagement of people to complain, and talking generally, the way that we took the system forward was to try and engage those people in the with the Commission if there was a problem that we could help with. And I think certainly the McCanns was a case where we spotted very early that it might obviously be a huge story, that they were vulnerable members of the public and that we would be well-placed to help them if that's what they wanted. Very early on, I think it was my then deputy who is now the director, found a way of reaching them, I think, or something happened probably three days after Madeleine went missing. We also helped with issues around their I think their return to England at some point. I remember having a conversation with the council about the physical presence of journalists and TV vans and all this stuff around their home. Christopher Meyer was in close contact with them because they'd been his wife had been helping them out, I think, in relation to their campaign. So it wasn't as if there was no contact between the two parties but the system does require a complaint and while they used the anti-harassment service, I don't think there was a complaint about those defamatory articles and I think they did speak to the chairman of the PCC about them he'll tell you all about it tomorrow and they went to court.
Thank you very much, Mr Toulmin.
LORD JUSTICE LEVESON
The next witness is Mr Stephen Abell. MR STEPHEN PAUL ABELL (affirmed) Questions by MR JAY
Thank you, Mr Abell. Your full name?
A. Stephen Paul Abell.
Q. Mr Abell, in the bundle of witness statements, which is bundle A, which I hope is available somewhere, you'll find under tab 3 your witness statement.
A. Bundle 1A, yes.
Q. It's 408 pages long.
A. I'm sorry about that.
Q. 727 paragraphs long and signed and dated by you on 16 September last year. This is your formal evidence to the Inquiry; is that right?
LORD JUSTICE LEVESON
Mr Abell, it's not a matter or it shouldn't be a matter of regret. I'm grateful to you for the monumental amount of work that you clearly put into preparing this comprehensive analysis of the work of the PCC.
A. Thank you.
LORD JUSTICE LEVESON
Which has been very helpful.
A. Thank you.
Mr Abell, we'll use your witness statement as the path through your evidence, which of course would be logical. I'm going to ask you first of all about yourself. You, of course, are the current director of the PCC. You graduated from Cambridge University in the year 2000 and then went straight to the PCC; is that right?
A. (Nods head)
Q. In various capacities you worked your way up the system and became director in December of 2009, I believe; is that right?
A. That's right, end of December.
Q. Thank you very much. Some of your statement is entirely expository and uncontroversial. Other parts will warrant further discussion. But in order to make sense of your evidence, I'm going to ask you to talk to certain parts of your statement, allow me to summarise other parts, but not deal with all of it, because there isn't time.
Q. Paragraph 30, first of all, at page 33500. You deal conceptually with the status of the Editors' Code of Practice.
Q. There are really two elements. There's an element which tracks the common law and you give the example of privacy, common law under the Convention and clause 3 of the code and then there were individual clauses which provide extra protection, such as clause 8 for hospitals, which isn't really part of the common law but which is there because there's thought to be a good reason for it; is that correct?
Q. But in terms of the jurisprudence of the PCC itself take the example of privacy does the PCC take into account decisions of the courts in framing its own response to complaints?
A. Yes. I think we're all very aware of decisions of the courts, and because clause 3 of the code asks the Commission to make judgments effectively about the Human Rights Act, which is the same exercise employed by the courts, that we are very conscious of rulings as they come down.
Q. Thank you. In paragraph 86 at page 33511, you summarise Sir Christopher Meyer's permanent evolution, which he announced at a speech at the Newspaper Society in May 2003, which I believe was fairly soon after he arrived; is that right?
Q. The key points you summarised: the increase of the lay members to 10. So the balance from 2003 has been 10:7; is that correct?
Q. Secondly, public members would be appointed following an open advertisement process and the first vacancy attracted over 1,000 applications. I'm going to deal with the issue of selection in a moment. Then the creation of a charter compliance panel. Could you explain a little bit about that, Mr Abell?
A. Yeah, the idea was that there would be people who could examine and request files on an almost random basis, either based on a random selection of file numbers or based on certain types of cases things like cases involving children or cases that had taken more than 12 weeks to complete or cases involving death and they would have a look at the files in their entirety and make recommendations about how we might improve practices check.
Q. Thank you. Then the appointment of a charter Commissioner who could review decisions of the PCC in the event of further complaint; is that right?
A. Yeah. Really on handling grounds, it was established. So if someone came to him and said, "I don't think my complaint was handled probably", he would, again, get the whole file and then, in my role as running the complaints department, I would have lots of exchanges with him where he would talk about the case and then come up with a judgment.
LORD JUSTICE LEVESON
Not too quickly, please, Mr Abell.
The final point I want to address in terms of permanence of evolution is the Editors' Codebook, which is a sort of exegesis of the code itself. The codebook, however, was written entirely by editors, isn't it?
A. It's written by the secretary of the Editors' Code of Practice committee, but very much in conjunction with the office of the PCC. So he will come to us with ask for our thoughts on cases, what we thought were significant cases, but he would write it himself in the end.
Q. Thank you. In paragraph 87, the 24-hour emergency helpline which was set up in 2003, how well publicised is that helpline?
A. We recently, over the last two years, had an advertising campaign which focused quite considerably on it. It's one of the things you get drawn attention to when you go onto our website. It's one of the parts of our work that I think people who work at the PCC are most proud of and think can be the most effective, because it means that people who are concerned either that there's something about to appear in the paper or there's knocks on the door late at night or at any time can get in contact. So we try and publicise it a lot. It's what we spend a lot of time trying to do. We ran an advertising campaign I think in 2010, which really made clear the existence of this 24-hour hotline.
Q. Thank you. That ties in with paragraph 89, where you explain the desist notice system.
Q. Which you also say is at the heart of your work today. In your own words, please, what is that system and about how often a year is it activated?
A. It's really designed for people who do not wish to speak to the press, either after they've been contacted once or twice. Generally, if they're at the centre of a news story, most often through no fault of their own, they'll be contacted by someone from the press, legitimately in most circumstances, but they will take a view that they don't wish to speak, and we quickly realised that we could co-ordinate that request by circulating it to the industry and indeed the broadcasters as well, because Ofcom by statute doesn't have any pre-broadcast powers. The PCC informally sends these messages both to broadcasters and to members of the press. So it's used primarily, really, to help members of the public who take a view that they don't wish to speak to the press, often because they're bereaved, but it may be because of anything. It's also used by public figures who are concerned about paparazzi attention. If they wish to convey to the industry their concern about either a particular incident involving paparazzi or a pattern of behaviour, we communicate that on their behalf, with the intention that editors will then be able to take a judgment about material which they decide to publish, because once they publish it, they take responsibility for the conduct of those who have obtained it, and if there's concern about that conduct, it should lead editors to not publishing the material, which would affect the market for the photographs.
Q. The issue of paparazzi photographs is one you take up later on in your witness statement and we'll come to it.
Q. You tell us in paragraph 94 that when Baroness Buscombe became chairman in April 2009, she announced that PCC governance would be subject to an independent review. The review was completed and this is paragraph 98 in July 2010, made 74 recommendations, and I think virtually all of those were accepted, weren't they?
Q. Now there's a further review process, perhaps a more existential one, in the light of this Inquiry, which to some extent supersedes the 2010 review, so we're not going to go into the detail of that.
Q. Can I deal in more detail with the issue of the structure of the PCC and the way in which members are appointed.
LORD JUSTICE LEVESON
Before you do that, just on the topic that you've been talking about, if you issue a desist notice, it isn't a breach of any code not to comply, is it? Or is it?
A. Well, clause 4 of the code makes clear that journalists, once asked to desist, must leave the property, stop asking questions and move away. So if you convey the desist message, the newspapers are aware that they've been asked to desist and they return. They would be breaching the code, unless there was a public interest justification.
LORD JUSTICE LEVESON
And what would the potential sanction for that be?
A. We would expect, having made contact with the complainant, to receive a complaint and it be considered as a complaint.
Is it, following on from that, a more serious matter, though, that it's not an injunction, because it doesn't have that force, but if an instruction by the PCC to desist has not been complied with and the complaint is brought not specifically because the instruction was not being complied with but is brought under clause 4 of the code, is it an aggravating factor that the recommendation or the notice has not been complied with?
A. It would very much be. Generally speaking, in almost every occasion, particularly involving members of the public, the people leave. I mean, the virtue of the system is that and this slightly appeals to self-interest of editors who don't want to send reporters to somewhere where they're not going to get a response, no doubt, but ultimately if there are people there, they tend to leave, and the success rate, because we often speak to complainants afterwards, is actually quite high. So the other slight way it can be used is more prophylactically, where we have families who are bereaved, they know an inquest is going to take place in three months' time or three weeks' time, and they can use it to make clear to reporters in advance that they're not going to speak to reporters and they shouldn't be contacted. So in my experience, very, very seldom has there ever been an issue which follows up, because it has actually been rather universally complied with.
Q. The issue of appointments of members. This is paragraph 110 and following of your witness statement, but you'll need to turn up bundle B1, tab 6, which is the articles of association.
Q. If you look at article 5 at page 34555: "The number of members of the Commission shall be not less than 9." Well, now it's 17, shall not exceed 17: "Members of the Commission shall be appointed in accordance with Article 6 below, provided at all times the majority of the total number of members who are appointed shall be public members." So there's power there to have the 10:7 split we see now. Three class of member under Article 6: chairman, public, press members. 6.2: "The chairman shall be appointed by PressBoF." That is the industry body which, you explain in paragraph 357 of your witness statement, is comprised only of newspaper members
A. And publishers, yeah.
Q. And publishers. Can I ask you about the relationship, as far as you understand it, between PressBoF and the PCC? The PCC is entirely funded, is this right, by the levy which PressBoF imposes on its members?
A. Yes, that's right.
Q. Do you happen to know how that levy is worked out vis-a-vis PressBoF and its members?
A. I don't know the full detail of it. It's based on an equation that really relates to the size and sale of publications, so the bigger publications pay more and it's based on a formula that's agreed with the industry.
Q. Thank you. Obviously, News International will pay more than that's one end of the extreme, and a small magazine on the other?
A. That's exactly right.
Q. Going back to clause 6.2: "The chairman appointed for such period and upon such terms as PressBoF may, in is absolute discretion, think fit, and PressBoF shall be entitled to vary or revoke such appointment." The position, therefore, before the independent review in 2010 because there was a change is that the chair was appointed entirely at PressBoF's discretion. That's correct, isn't it?
Q. The position now, on my understanding and this it is paragraph 110 of your statement and therefore would have applied to Lord Hunt but not previously. There's an independent assessor involved?
Q. And consultation with the public members of the PCC before the appointment is formally made by PressBoF; is that correct?
Q. How did it work in relation to the last appointment? Was it a recommendation which was made to PressBoF or did PressBoF have a shortlist and then choose for itself from amongst the names put forward?
A. My understanding is they consulted with the Commission through the deputy chairman of the PCC but the ultimate decision from the shortlist was taken by PressBoF. The Commission didn't exercise any role in that.
Q. Okay. Indeed, under the articles, there's no difference between public and press members, but the position has changed de facto
Q. under the Buscombe review. 6.3: "Subject to the provisions of article 5 above, the public members and the press members shall be appointed by the Appointments Commission for such period upon such terms as the Appointments Commission may, in its absolute discretion, think fit." So the Appointments Commission, we can see under clause 10.1, is comprised of the chairman, the PressBoF chairman and three other independent persons who are nominated by the chairman of the PCC and the chairman of PressBoF. That's correct, isn't it?
A. That's how it used to be, yes.
Q. So under the old regime, both public members and press members were appointed pursuant to those processes; is that correct?
Q. The position now, if I've correctly understood it, is that the press members are nominated by their trade associations, as it were, and the Appointments Commission has no formal role; is that right?
A. Well, the Appointments Commission has been abolished. It's now a nominations committee of the PCC comprising lay members only, which was felt to be a better approach because they would have a greater sense of what the Commission would need in terms of personnel. So to make it more independent, that was changed, and it was recommended by the governance review that as editors were being provided in their role as editors, the Appointments Commission wasn't really exercising much of a judgment on them, so it was decided to split the processes and say the lay people should be appointed by a more robust and a more independent process, and the editors would be openly were more clearly provided by the trade bodies.
Q. So we should look more closely then at the appointment of the lay members, the public members.
Q. As you say, they are now appointed or selected by a nominations committee of three lay members of the PCC, together with an external independent assessor; is that correct?
Q. How are the lay members of the PCC chosen to serve on the nominations committee?
A. I believe it was agreed, in the first iteration of it, it would be the chairman and the deputy chairman, as there was then, plus a volunteer, and then it was discussed when the nominations committee was empanelled, effectively, by the Commission, and a figure said that he would do it and he was the third person. It was agreed by the Commission that it would be those three.
Q. Right. In relation to the public members, as you say in paragraph 115 of your statement, there is an open competition; is that correct?
Q. Have you been involved in the workings of the nominations committee in any way?
Q. Could you tell us a little bit how it works then? Is there a long list, a shortlist with interviews, and then final selection by the PCC itself on the recommendation of the nominations committee?
A. There is the nominations committee met to agree criteria for the appointment. That formed the basis of the advertisement. We then had 3,000 applicants for the post. The first sift was undertaken by the independent assessor, with help from me and the independent assessor together. That led to a reduction to a field of a couple of hundred, I think. The nominations committee then met to discuss those couple of hundred. There was a long list created of up to 50, I think. At that point, there was consultation with PressBoF of: here is the list of the 50. One of the criteria is "must be able to command the respect of the newspaper industry". He was invited to make any comments. They weren't a veto, by any means, but a chance to make comments. None were made in the event. The nominations committee then agreed a shortlist for interview. The interviews took place with three members of the nominations committee, the independent assessor and me asking questions. So I sat on the panel but I don't think I was a voting member but I asked questions based on my experience. That led to a very short list, which was then promulgated to the Commission with the recommendation that they accept it, which in the event they did.
Q. We know from article 53.7 we've seen this this morning that in carrying out its functions in relation complaints, the Commission shall have regard to generally established freedoms, including freedom of expression and the public's right to know and defence of the press from improper pressure. Were interviewees asked for their view of and possible approach to those general principles?
A. They were I think the list of criteria in my statement at 116.5 talks about an interest in and appreciation of the dynamics of a free press and freedom of expression and a recognition of the need to balance with other rights. So they were asked to discuss what a free press means, but what it specifically means in the context of protecting the rights of people, particularly bearing in mind that the preceding comments are talking about particularly vulnerable groups of people who were in need of assistance.
Q. Thank you. So it's not just Article 10; it's balancing Article 10 against Article 8?
A. Yes, and I would say that that's and the way when it gets to a complaints process, it's Article 8 would have slight primacy, but one has to look at it within the structure of something that seeks to preserve the existence of a free press. Certainly that wouldn't be a trump card at all.
Q. Thank you. The other aspect of the structure, looking at it more widely but admittedly outside the PCC, the Code of Practice Committee, which you it up on in paragraph 350 of your witness statement, that, in formal terms, is a subcommittee of PressBoF; is that right?
A. That's right.
Q. There's no lay involvement. It's comprised entirely of newspaper the proprietors and editors; is that right?
A. Although the chairman and the director were asked, as a result of the governance review, to have a clearer role because the chairman and director had ten meetings and it was decided that they should have a much clearer role in representing the views of the Commission on the Code Committee.
Q. And also there is a process for public consultation for any amendments to the Code, isn't there?
A. There's an annual audit where the public are asked to make suggestions, the Commission considers whether it wants to make any suggestions and interest groups do the same, and that feeds into an annual consideration of the code.
Q. So in practice, then, is there a process by which ongoing issues and concerns of the PCC, particularly in the context of possible code amendments, are fed back to the Code of Practice Committee for consideration on an annual basis, if not more frequently?
A. They can be, and if the Commission has a code issue, it would be fed back to the Code Committee, and the Commission is asked to ratify changes to the code as well. So the Commission has to be happy with the terms of the code it's working with but the primary consideration of the content of the code is by the Editors' Code committee and the idea is that editors must recognise that that's a document that they can work with.
Q. So is this right: there's no possible of the PCC itself imposing an amendment on the Code of Practice Committee; the ultimate decision resides with that committee?
A. Yes. The Commission could raise an issue and it could not ratify an amendment with which it disagreed, but it couldn't impose an amendment which the Code Committee wasn't seeking to make.
LORD JUSTICE LEVESON
Does that mean it's the lowest common denominator about these rights? Because if it doesn't get through the editors, it never gets anywhere?
A. It has to the editors have to agree that it's a principle, but I think that they would have to explain why they didn't want to put it in if there was a legitimate reason to put it in. So there's quite a lot of explanation of that point, but ultimately the decision is made by the Code Committee as to whether it should be contained. But it's not entirely a passive process.
Q. Have there been situations where the PCC has been keen to amend the code in a particular way but that hasn't happened, owing to resistance within the Code of Practice Committee?
A. To my experience, there's never been anything as definitive as that that I can recall. There have been examples where the Commission has asked for clarification or raised an issue about specific clauses of the code, but I can't recall ever the Commission saying, "In our view, this has to change", and then the Code Committee refusing to change it. I think that would cause a constitutional difficulty if that point was reached.
LORD JUSTICE LEVESON
A. I suspect if the Commission felt very strongly that there was something either wrong with the code or there was something not in it that prevented it from doing its job, it would create a difficult if the Code Committee was point blank refusing to consider it. That's not happened in my experience.
The difficulty would be a political one, not a legal one?
A. Oh, it would it would also, yeah, raise a question about the relationship between the two bodies.
Q. Can I raise a number of issues, many of which I've gathered from commentators and those who criticise the PCC, in terms of the structure and just put them to you
A. Of course.
Q. for your comment? Given that the relevant standards are set by the adjudications the PCC makes and we can see the number it makes each year and given that there is a broad principle of precedent stare decisis which the PCC operates, it's not in the interests of editors generally to make adverse decisions, particularly on important points of principle, in individual cases, because they might find themselves subsequently at the wrong end of a principle which they themselves have participated in creating. (a) Do you see the point, and (b) is it a structural flaw?
A. I understand your point, but I don't agree with it. I think that the structural answer to that is to have a body that is not dominated by editors, so the majority of 10:7. I'm not saying that is a definitive that's the best ratio that's possible, but what that does mean is there are ten independent-minded people who would ensure that decisions are not being driven by editors, if they were to intend to do that. My experience is that there isn't a resistance or act of propulsion by editors in either direction very often. It's often a debate around quite fine issues. I think the structural guarantee of having 10 independent people means that whatever the editors' views are, there are people who are not editors who ultimately are the majority in the organisation.
Q. Although editors are always in a minority numerically, owing to their greater knowledge of the subject matter and perhaps owing to certain personalities, in practice the views of editors tend to overbear those of the lay members. Is that a fair observation?
A. No, I don't think it is. I think also a lot of the expertise in the code resides in the staff of the PCC, which has s helped to frame some of these decisions. The PCC now has on it a former judge, a former chief constable, a professor in media law so there are people there with areas of expertise that possibly go beyond editors' expertise of the code and the law, and I think that they're appointed as independent people. So the personality argument I think doesn't work. The people who sit on the Commission are quite strong personalities. I think to join the PCC, you'd have to have a strong personality.
Q. Given the clear interlinkages of personnel, money and power through PressBoF, PCC and the Code of Practice Committee we can see the extent to which they're interwoven, even in the current improved system the structure is not independent because we see too tightly interwoven the interests of the press, as it were, over and above the interests of any individual?
A. I think that there are virtues in the notion of buy-in and involvement of the industry which are considerable, but I think that the risk will always remain that it doesn't look like it's sufficiently independent and there's a risk that there's not sufficient external scrutiny of all that is going on, starting from the funding and the code, going downwards, and I think one of the virtues of something like this Inquiry is that it's an entirely external examination of the over-arching structure. I think a lot of what with we have at the PCC, particularly in my experience, has changed a lot of the internal structures, but the over-arching architecture has remained for a considerable period of time, and I think that when one starts considering about appropriate mechanisms in this area, one has to look at the compete picture, and that starts with funding and agreement as to powers. It contains the code of practice and the functions of the PCC. So I think there is great virtue in involvement in the system, and buy-in into the system and you can see, if that stops to happen, where problems can arise. It's not to be underestimated, but one has to balance that against the issue of independence, and I think there is a legitimate demand for external scrutiny on all the processes to ensure that independence.
Q. It may not be the fact of lack of independence; it may be the appearance of lack of independence. One way to improve that and remove that appearance would be, for example, to say that only retired editors should sit on the PCC. It is that a proposition with which you would shall sympathetic or not?
A. I wouldn't be dogmatic against it. I think one could come up with other ways of involving the industry without using retired editors. One could have editors who are more clearly framed as consultants or experts to an adjudicating panel, rather than voting members. My concern about ex-editors is simply the speed of the industry, the way it moves. I think there's quite considerable change that goes on underneath people's feet whilst they're in post and once they're out of post, things do shift. So I think the expertise argument is strengthened with people who are still in the heat of the fray. I think that people who are retired editors and it depends how half you go back. Cultures change quite considerably in newspapers and there are retired editors who this Inquiry will have seen who may not be quite as in step with the current culture as well.
LORD JUSTICE LEVESON
I can't think who you're talking about.
A. But it is an issue, and I think the speed of change is such I'm not dogmatic against it and the difference between appearance and reality is not necessarily insignificant, because in people's minds they have a view and that view needs to be shifted.
Do you subscribe to the view that the PCC is not a regulator in the proper sense of the term but is rather a complaints-handling service with one or two add-ons?
A. I think there is a sort of danger of semantics here, but I think that the PCC is a complaints-handling body which has pre-publication work, does training work, does guidance work, and I think it's part of a system that clearly has regulatory aspects. If, by "regulator", we mean something that is more interventionist, the PCC has not shown itself to be that. I think while it has certain powers invested in it, I don't think they are sufficiently spelled out or the structures attendant upon them are sufficiently clear to place it in the category of regulator that people might consider it might be. I think it is, as its articles make clear, primarily a complaints-handling body. It does have attendant other roles to perform
LORD JUSTICE LEVESON
It developed some other roles, rather than has them. It developed them for itself.
A. And I think and the articles give provision for that, so I think it has been a sort of
LORD JUSTICE LEVESON
A. organic development, but the problem with that sort of development is it lacks clarity and an over-arching viewpoint. I think that what's happening
LORD JUSTICE LEVESON
One of the concerns is that people thinking about a regulator would think about a body that was over-arching, that took a coherent, cohesive look at an entire industry, or whatever it was that it's regulating, identified standards for everybody to meet and ensured in some way that people came up to those standards, whereas the PCC is looking at specific cases and doesn't over-arch in that way.
A. I think there's a very good point there, that the way the PCC and this is not to say the PCC is negligent on the issue of standards. It's seen itself as taking small cases and developing broad principles, whereas what you're talking about is to take broad principles and find a method of enforcing their adherence, and I think whilst there may be provision, in the broadest sense, for the PCC to do that, no concomitant structure has grown up with it to enable it to nor is it resourced, as it stands, to do that. So I think the attitude towards standards in the PCC is we try and set out more clearly now, so it can be absolutely clear, that what we're doing is to have a complaints system that holds editors to account, have a proactive role to try and get people within that system and to do additional work on guidance and pronouncing on the code. That's what we do, and I think are resourced to do. The question I think is a very good one is to say: if we're starting from scratch and having an over-arching view to it, here are a set of standards, and the PCC or the body that there is becomes should have this clear structure and power to enforce that. I think the mechanism to do that might be to say to newspapers: "You have your own internal standards much more clearly defined and the role of the new body should be to make sure that you hold yourself to those standards and have proper processes." That's not currently in place at the moment.
Q. The standards, of course, are set out in the code of practice but in very general principles. If you want to see the articulation of any more precise standards, you look to the adjudications, which spring from individual complaints. That's the way it operates.
Q. So if you want to see general rules, the general rules spring only from individual situations, which have given rise to a complaint and not otherwise. That's correct, isn't it?
A. That's the primary root of them. They have led to general guidance, for example, and I list the 20 or 25 guidance notes the PCC has issued. They are rooted in the code and they are likely to have been occasioned by information that was brought to the Commission's attention by virtue of a complaint, but there is that provision to take those specific cases and make a broad lesson, which I think is a valuable role.
Q. Can I deal with the complaints process, which you address in paragraphs 188 and following. What I'm going to ask you to do is turn up the 2010 annual review, which is tab 49 of bundle B1.
Q. If you look at the annual review and the statistics for 2010 at page 36503, you can see the position. There was over 7,000 complaints but rulings in 1,687 cases, and that included, of course, the PCC-brokered amicable solutions. Can we seek to summarise it in this way: we've heard about the sifting of new complaints and the extraction of anything which was plainly outside remit or plainly misconceived; is that correct?
A. Yes. People would write to us if it was nothing to do with newspapers, for example, we would send them to the body that it might be appropriate it might be about adverts, it might be about behaviour of newsagents. It might be very, very incomplete information, where someone dashes off half an email and we write back to them and say, "What do you actually mean?" and they never come back. A large proportion of people dash off that first email and then do not continue in any way to engage with the process, often because their concerns are more nebulous than focused on a specific article.
Q. If we're looking at the statistics then for 2010, 821 out of the 7,000 were immediately ruled out as being outside remit. We know that from page 36509.
Q. Then 2,274 were not pursued. This was presumably the cases which started with incomplete information or which died an early death; is that correct?
Q. So that accounts for about 3,500, half of all of them. If the complaint is deemed to fall within the remit, there are then two stages. If the complaints officer considers that the complaint raises no prima facie case, it's presented to the Commission for an immediate decision?
Q. But if it's thought to raise an arguable point, it then goes through to a fuller investigation; is that correct?
A. Yes, and the Commission, if they disagree with that first prima facie presentation, their first step would be to say, "Actually, we don't have enough information on this", or: "This looks like it might be something more significant. Please go and write to the editor and find out more information."
Q. Right. We heard from Mr Toulmin what happens when the investigation starts. The newspaper must reply within seven days and then the process of mediation starts. Can I just have your view as to the role the PCC takes within the context of that mediation
Q. and the extent to which it assists the claimants or is entirely impartial. Can you help us with that?
A. The way I explain it to complaints officers and the way we discuss it internally is I see the role of a complaints officer as 60/40 in favour of the complainant, if that is necessary, in the sense that some complainants will not be best placed to know the full position, know really what the code says or what the newspaper might be expected to do. So I think there is an advocacy role for complaints officers to take on board the concerns of the complainant and drive them. I think the other function it can be difficult, but I think it is appropriate for a complaints officer to sort of ride two horses. One would be to push for mediation and to find ways of doing, and the second would be, as that process goes on, to try and ensure that enough information is available that should the mediation not be successful, the Commission will ultimately be able to reach a decision. So I don't think it's a neutral act by complaints people. I think their job is to grip the issues and to try and bring them to a conclusion, and that will invariably be by assisting the complainant.
Q. Thank you. If the mediation process succeeds, self-evidently that's the end of the matter. Correction, apology, bouquet of flowers or whatever the solution might be. But if the matter then is not resolved amicably, as we heard this morning, the matter proceeds for ruling or determination, and there are three possibilities: either no breach of the code, or breach of the code but publication has offered sufficient remedial action, in which case no adverse ruling is made, or finally there's adjudication. An adjudication might be either upholding the complaint or rejecting the complaint; is that correct?
Q. Can I ask you about what happens in Commission meetings. You explain in paragraph 204 that the full file is seen, presumably by each commissioner, and under 205, there isn't a formal vote but a consensus is sought to be attained. How does that operate in practice?
A. The office will disclose the full file. It will make a recommendation to the Commission of one direction or another. The chairman will then invite comments from commissioners. Sometimes the Commission will all declare they are content with the officer's proposed recommendation. Other times they will start raising comments. It's then the role of the chairman, together with the director, to bring those comments together, with the intention of reaching an agreed decision. Now, commissioners can say that they fundamentally disagree with the decision, in which case it will be taken away and more work done on it. What tends to happen if a commissioner doesn't feel very strongly about it or if feels the merits of the argument run in counter to their own, they may well bow to the will of the majority, content that they can stand behind the decision, but the movement will be to try and have everyone say what they think and a consensus position reached.
Q. You attend these meetings as secretary to the Commission
Q. and separately as an officer of the Commission's director, no doubt. Just give us a sense of how decision-making breaks down to this extent obviously we're not concerned with the confidentiality of individual decisions, but do you get a sense that the press members tend to line up on one side and the public members on another side, or is it far more nuanced and complex than that?
A. It's more complicated, and it really depends on the issues of each case. I've very seldom, if ever, seen all editors agreeing and all lay commissioners taking an opposite view. It's often people raising different issues. Editors will say in their experience what they would think. Sometimes they say, "We wouldn't have done this in our paper for the following reasons", which I think commissioners give regard to, as one might expect, but they are quite often long, complicated exchanges where people will also say at the start, "I think one thing", and at the other end they will say, equally fervently, they think something else. So there is quite a lot of exchange and deliberation, which is proper, I believe.
Q. Thank you. Now look at some key rulings in your statement.
LORD JUSTICE LEVESON
Just before we go to the rulings, before we forget the point, you've spoken about mediation, which then allows the complaint to drop out of the system and it goes nowhere else; is that right?
A. It used to be more like that one of the things that has changed in the last couple of years is if there's something significant in it often the complaints officer will flag it up to me and then to the chairman of the Commission, who will write to the editor or write to the managing editor and say, "This looks like a significant issue. Can you reassure us what happened here?"
LORD JUSTICE LEVESON
It's not just that that I'm thinking about; I'm thinking about the industry as a whole. If lots of the cases are being mediated, then the rest of the industry will not know what are the issues and how they're being resolved so that their own guidelines internally can be changed or modified in accordance with the views
A. I think that's a fair point which has been sought to be addressed by (a) the statements of resolution are now very, very full indeed. So when we do resolve a case, we publish a full summary of it, which we then communicate via Twitter and on our website. The training that the PCC undertakes is not only about adjudicated decisions; it also takes in resolved cases. So if a resolved case raises a specific issue, we use that as an example. One case I can recall was when a woman was photographed in a public place outside a shopping centre and the photograph was used by a magazine in a discussion about her potential ill health with an eating disorder. The editor of the magazine eventually settled with a very prominent apology and undertakings about the future, but it was relatively near the Naomi Campbell decision and it was an example of a photograph in a public place but containing a quality of information that related to privacy, and therefore it was a significant issue for the PCC, and in our training that we've done, in our public pronouncements, we've specifically drawn attention to that to say to people: although it was settled, which was right and proper and was what the complainant wanted, the issue was more significant than that.
I think that leads on to maybe it's the same point, but the principles of precedent which set the standards or enunciate the standards which we see in the adjudications, either upheld or rejected. To what extent are the adjudications you feel representative of the type of cases the PCC is seeing in any particular year? It may be that statistically they're not because they only represent those cases which, for some reason have not been settled. On the other hand, it may be said that's exactly the same as civil litigation, where the vast majority of cases settle and only a few get to court and it's the few which get to court which set the standards. How does it work, do you think?
A. I think that we're conscious in the office of a case that is significant, with significant implications, and particularly if it's a serious breach of the code, where we will seek to carry out the mediation function, as we always would do, but we'd also try to ensure that if that's not successful, that is flagged up immediately to the Commission as a case that's worthy of publication, that will hopefully set standards. So we keep in our mind I mean, there are three mechanisms by which cases can go to be sort of formally promulgated by the PCC. One is that commissioners can see it via correspondence and feel it's significant enough to warrant that. One is that it's a breach of the code that's gone unremedied, and the second is where it's a potentially grey area which would benefit from public discussion. So we seek to try and channel that, if possible, whilst still balancing the wishes of the complainant, because the intention should be that the adjudications, of which there aren't many, we have to make a virtue of the fact that they therefore can have more impact when they do come out and if they fix on specific areas, we're keen and alive to bringing that out.
Q. It may be there are situations where a complaint officer feels that there's been a serious breach of the code, that it would be an open-and-shut case if the matter ever went to adjudication, but if the impetus is to try and broker a settlement, that message may not be communicated to the complainant. Or is it a message which is communicated to the complainant?
A. I think the idea is that the complaints officers discuss with complainants what they want. So in those sort of cases I would expect a complaints officer so say, "This looks like a fairly straightforward breach of the code, although I can't guarantee" what one doesn't want to do is for a complaints officer to promise to a complainant effectively: "This will be upheld", and then that not happen, which I think would be hugely disappointing to someone. But I think I would expect them to speak to the complainant and say, "There's a strong argument that this will be handled in this way and published. There's an equally strong argument that the newspaper, because of that, will be willing to do this, that and the other. What do you actually want out of this?" There are some cases where no remedy is possible. As soon as we get in the realm of identifying victims of sexual assault or certain serious privacy intrusions, it's very hard to see what the remedy could be. Those cases tend to select themselves, as well.
Q. You don't have power to fine, but as part and parcel of the conciliation processes, does monetary consideration ever pass hands?
A. We do allow it to happen and we will be party to it if that is what the newspaper is willing to do and that is what the complainant wants. So we do have cases settled by ex gratia payments. Some people in the industry are very happy to do that because they see it as a way of settling complaints in full and final settlement. Others are more reluctant to do that, and so we don't have the formal authority to say, "You have to compensate to X amount", but it does take place as part of the broad mediation process.
Q. In your experience, is this right, that very few successful complaints, whether resolved amicably or following an adjudication, then turn into civil litigation?
A. I think, yeah, few I think a couple of year, two or three a year that I've become aware of. There may be more that I'm not aware of, but I would expect to be made aware of.
Q. May I ask you about four or five key rulings, understanding, as one must, that to look at just a few cases in the context of the comfortable number you refer to in your witness statement may not be representative.
Q. I raise them either because one case is particularly notorious, but some have been mentioned in this Inquiry. The Clare Balding against the Sunday Times case, "Dyke on a bike", that's 33611 in your witness statement. You comment on that one. That's quite recent, during your time as director.
Q. We heard from Mr Witherow on this and that the term "dyke" he says is often used in a non-pejorative fashion and therefore either is not discriminatory or might be regarded a fair comment. Clearly, the PCC took a different view. Are you able to assist on why that was so?
A. I think one has to look at the context of the article itself, and I think Mr Witherow's argument, which I do understand, is that the valency of words changes over the course of time and certain communities can reclaim them and they have different meanings to different people, so a website that treats the term "dyke" might be in the context of a reclamation of a word. It might be in the context of a community of people who feel content with that word. My recollection of the article was that it was an attempt to be sort of humorous about Clare Balding in a negative way. I don't feel that one reading that article would regard it as a neutral use of the term. My own view at the time, which remains, is that clause 12 of the code is designed to protect individuals from pejorative use of terminology, and I think "dyke on a bike" to me is a relatively straightforward breach of clause 12 of the code. I don't agree with Mr Witherow's version on that.
Q. In that case, the final decision was made by the Commission and not by you. Again, was that a case which the Commission reached fairly easily as opposed to officers within the Commission?
A. I think there was debate about it, because of the cultural issue, because of the almost philosophical point about the meaning of words and their effect, and also because it's relatively rare for the PCC to get a complaint like this, possibly due to the existence of if you read papers from the 1980s, use of what might be considered to be discriminatory references to sexuality and particularly homosexuality were very common. We don't get many complaints like this. So there was a full and frank discussion of it, including by editors, but to my recollection it was the unanimous view of the Commission that this was a breach of the code.
Q. The most controversial case I think the Commission has received in recent years is the Daily Mail Jan Moir article on the death of Stephen Gately. The piece itself was 16 October 2009, before you became director. You were deputy director, I believe, at that stage.
Q. But the adjudication where the complaint was rejected was February 2010. Am I right in saying that you had involvement in not in the decision, but at least you observed the decision being taken?
A. Yes, I was involved in it, absolutely.
Q. That was a particularly controversial case. I think there were at least 22,000 complaints; is that right?
Q. Your website crashed that day, and the headline, although it was removed soon after by the Daily Mail, was "Why there was nothing natural about Stephen Gately's death". It raised issues under clause 1, accuracy, clause 5, intrusion into grief, and clause 12, discrimination, because it was said that the implication very strongly was that it was homophobic, basically. First of all, how did the Commission approach that case and to what extent was there consensus on the conclusion?
A. When it first happened I mean, I think we may have been an example of what was called "Fry-bombing", when Stephen Fry, who has a million people following him on Twitter, directed people to the PCC's website. So he directed a million people to go to the website at one time and that, I think, led to the crash. But there was a large body of people who were deeply concerned about this article. We then contacted the family of Mr Gately through the band's PR apparatus to seek their views on it, and his partner subsequently made a formal complaint. This was a case that took a long time through the Commission, and indeed internally at the office, with a lot of considerations on both sides, because on the one hand, there was the issue of comment such as these made in the aftermath of a death, which touched upon lifestyle issues connected to the sexuality of Mr Gately. On the other hand, there was this notion of the right of the press to comment freely and vigorously on matters that were well established in the public domain, even in the context of someone's death, and so there is a balancing exercise to be struck. I think the Commission, if you read the full decision, which is a very long decision that tries to bring out some of these points, sought thoughtfully to engage with each of those issues. It came up to the view that it was just short of a breach of the code, although it did criticise the paper within that framework. I believe there will be some Commissioners who felt it went over the line but the majority and then the consensus was that it just stopped short of the line.
Q. One point on that case, that the use of particularly in the headline "Nothing natural about Stephen Gately it's death" given that the clear evidence was that he died from natural causes, didn't that necessarily engage a breach of article 1, particularly when one read it in conjunction with other language in the article itself, which had pretty clear homophobic overtones?
A. I think the intention of the Commission was certainly to examine it in that context. My understanding of it was the article did make clear the precise medical diagnosis. It seemed to me that the contention of the columnist was that certain lifestyle factors not exclusive to the sexuality of Mr Gately were the subject of her criticism, and so he died there was some discussion of drug-taking. There was some discussion of another partner being involved, sort of late nights in at club and going back to a hotel. It seemed to be at least or the Commission took this view a rhetorical point about she was saying that people, to her mind, possibly I don't want to speak for her that natural death involves people dying quietly of old age in their beds and she took a view that the dissolute circumstances surrounding this made it not natural as a point of opinion. The article did make clear that the medical diagnosis was not of improper practice or improper behaviour but she was formulating an opinion based on her view of the world and possibly her sense of the view of the world of her readership. It's a difficult point, and I think the Commission wrestled with it, but that was the conclusion that they ultimately drew from it.
Q. But if, as a matter of fact, the death was due to natural causes, commentary around alleged lifestyle factors which, by definition, did not contribute to the death as a matter of fact, were inaccurate, weren't they, in the context of clause 1?
A. Well, I don't think that the word "natural" necessarily has only a medical connotation there. I think it's a term that one can use as a point of perspective, what is natural and what is not natural. I don't think it's necessarily and the Commission did not think it was an inaccuracy in that sense.
LORD JUSTICE LEVESON
I think it's probably sensible to take five minutes.
LORD JUSTICE LEVESON
Thank you. (3.35 pm) (A short break) (3.45 pm)
Paragraph 240 of your statement, the issue of prominence of the published remedy. That is an issue, I think, which rankles not necessarily most but certainly significantly with many complainants and also features, I think, in the related issue of the public perception of the PCC. Can we take it in stages? In relation to an adverse adjudication, the PCC does not have a right to insist exactly where and how that adjudication is published; is that correct?
A. No, although the code was changed at the beginning of this year to say that the location has to be agreed in advance with the PCC through the director.
Q. That was introduced in January of last year
Q. but does that mean that the PCC can insist where the adjudication is published?
A. No, it means it has to be agreed with them. The power to direct where it should appear still does not
Q. I think I've correctly understood it. It's still a question of negotiation you will try and get the editor to follow your will but ultimately you might have to yield to the editor's view or it becomes a matter, again, of discussion and consensus; is that so?
A. Yes, or if the editor exercises his discretion and publishes it in a way that the Commission finds not to be sufficiently prominent, it would give rise to the case being considered again and possibly upheld a further time.
Q. Is this right as well: it's not just a question of the location of the publication of the adjudication, but also the size of print and exactly how it's headlined? These are also matters which would be up for discussion?
A. Yes. The code has a requirement that the PCC is referenced in the headline. So that's a matter of requirement and a failure to do that would require some form of action. But the precise layout is not something on which the Commission tends formally to take a view.
Q. Wouldn't you agree, particularly in this context, where there's been an adverse adjudication by the PCC, that it's evidence of a weakness in a system which depends ultimately on consent that the PCC, as quasi-regulator, if that's what it is it may be less than that cannot insist to the editor in breach to publish the adverse adjudication in a particular way according to the wish of the PCC, rather than the wish of the newspaper?
A. I think it's it sets a limit to the power of the sanction, certainly, and if one were to look, as I've been thinking about, to the future, one could conceive of increasing the power of sanction by saying either that all adjudications must be referenced, for example, on the front page, whatever the circumstance, and secondly that the precise location would be a matter dictated by the organisation itself. The argument has always been that things move very quickly and pages change shape and the right to put things in a certain way in a newspaper, notwithstanding the terms of what the code require, must be a matter for the editor, and I think that's often been a prevailing argument. But it seems to me and I think people would agree with me on this on the Commission that if one were to look at a way of increasing the power of the critical sanction, which would not involve anything massively significant other than the agreement of the industry that this would take place, one could say adjudications should appear always trailed on the front page and always in a location dictated by the organisation.
Q. It might be said that the newspapers' holding out for some sort of control over the publication of adjudications or even the publications of apologies and corrections is short-sighted because it might be contributing to the demise of the PCC itself, because in terms of public perception, the public say, "This demonstrates that the PCC is without teeth because it can't even insist in an adjudication case how the newspaper must publish the offending adjudication." Do you accept that?
A. I think there's a risk with any over-arching system of self-regulation that newspapers in this case don't provide sufficient provision and that would lead to people losing confidence in it. I think if you actually look at the way newspapers historically have responded to apologising, one could argue that they would garner greater trust with their readers if they did it more readily and more openly. But sometimes a view is taken on a specific case or as a matter of principle that doesn't push in that direction.
LORD JUSTICE LEVESON
That's interesting. One of the greatest complaints I heard in the weeks that I heard evidence on this topic was you labour away at the PCC complaining, batting forward the correspondence, and then you need a very large magnifying glass to read the ruling in your favour. You must have read the evidence that I received.
LORD JUSTICE LEVESON
But that does seem to have a degree of force to it.
A. I think there's a and I think that one can look at a process of improvement here but one that perhaps hasn't gone far enough, and I'm very conscious that the rulings that we do now I think are longer and require greater prominence in their promulgation by the paper, but I think that there's been a process of improvement in this area. You might well conclude, and we may well conclude, that it could have gone further and should go further in the future. I don't I think that's a legitimate position to take.
LORD JUSTICE LEVESON
Paying for it to be published in somebody else's newspaper? That was an idea that somebody had.
A. Yeah, I'd not heard that idea before. With all these things, if everyone agreed to it, it could be done. I think if people didn't agree to it, it would seem hard to legislate, even with a small 'l', for. I think the idea of publicising very clearly when it has happened is something that should be considered I think newspapers can control their own publication and the work of the PCC has been to try and publicise it ourselves. So we tweet about it, we encourage other people to write about it. So that notion is something that we're quite warm on, I think.
Ultimately, is there a philosophical question here that the PCC feels there's only a certain distance it can go in terms of insisting because we are dealing with a system of self-regulation which depends on the consent of the newspaper, or is it a question of the PCC pulling punches which it could land if it wished to?
A. I think certainly my experience is that in this area we strain as much as possible to get prominence. I think the system is consensual and there's no getting away from it, but as I said, that carries with it a benefit because you can get things which would be fought against if the system was non-voluntary, particularly the fast-moving stuff. So getting stuff taken off websites very quickly, the anti-harassment work, the pre-publication guidance work that is a feature of a system that is pitched at the flexible, fast-moving end. What you lose at that end which you would gain by a greater certainty of powers you lose, I suppose, some element of authority, because it's authority that is that at the moment is based on collaboration and
LORD JUSTICE LEVESON
I don't understand why you would lose the fast-moving end if you had a little bit more power at the other end.
A. I think provided that power was accepted and established and structural present, I'm not disagreeing with you. What I'm saying is that at the moment the certain flexible side of things are in the nonformal consideration. So if the system had a greater formality, then the work of removing things quickly or giving advice may become more structured and that may lose some of its speed, but I'm not disagreeing with that.
Issue of pre-notification. The DCMS Select Committee in February 2010, paragraphs 91 to 93, recommended that pre-notification should be the norm and the code should be amended to make that clear. That hasn't happened, has it?
Q. Why not?
A. I think the Code Committee were awaiting the outcome of Mosley, which was a judicial consideration of some of those issues. I think it's recently considered it further. I don't think it's entirely finalised its position. I think some people in the Code Committee read the Mosley decision as arguing against a codification of a general principle. I think the PCC in its interpretation of the code in the area of accuracy has gone some way to defining the need to contact in advance, particularly on contentious issues. So I think that the code has certain provisions for it in accuracy. I think there's an argument that the code could change to say the general expectation will be that there is prior notification, and the editor will be expected to make an argument why that hasn't taken place in a particular case, because one can conceive of investigative journalism where it would be wrong to put someone on notice of things that are about to appear. But one could easily say that should be an argument that it should be for an editor to make and explain clearly why they've got done it. The issue we've sometimes had we had a case last year where the editor felt that the information was not contentious, it came from a source close to the person, and they didn't go to that person for comment. Now, I think we, in our view, concluded that was a wrong decision, but it was a relatively fine decision to have to make, not because I think the editor was concerned about the risk of injunction but rather they took a common sense view, as they saw it, that the issue wasn't such that would benefit from a comment. So I think there's quite a large area of this where it's a fine decision to make. I don't think it's always very straightforward. The example you've discussed with Tim Toulmin about Burrell was relatively clearcut, but there will be areas that drift into the grey a little bit.
Q. I don't think the DCMS committee were concerned with grey areas in that sense. All they were saying was that as the general rule, pre-notification should be written into the code. That means, of course, that there may be exceptions from the general rule and the editor would have to demonstrate that an individual case fell within the exception, but that would simply reflect the sound common sense position, which would do justice to both sides in the balance between free speech on the one hand and privacy on the other; would you accept that?
A. I don't disagree with that.
Q. The decision of the European Court of Human Rights was solely on Article 8. It wasn't on domestic law or on good practice, was it?
A. No, and I think that there's as I say, the work of the PCC in this area has pointed towards good practice, best practice, in the area particularly of accuracy.
Q. Is there a sense you feel within the Commission that the Mosley case, as it were, has dictated the agenda? "We don't like Mr Mosley very much anyway" Sir Christopher Meyer has, in effect, said that, as I will make clear to him tomorrow "and that means we will not move towards an amendment of the code"?
A. No, I don't think that at all. I think, speaking personally, and I would say probably for the majority of the Commissioners, one should have a great deal of personal sympathy for Mr Mosley based on those peculiar circumstances of his case, because of he reading that information and seeing those pictures and that video about himself without being aware that it was going to come, at a personal level one can see how terrible that would have been. So I don't think there's any view of the Commission corporately about Mr Mosley, except to say on the specifics of the case it was quite likely he would have found favour with the judgment of the Commission if they had been asked to make one. So I certainly don't accept that at all as a motivating factor.
Q. Okay. I'm going to pass over significant further sections of your statement and take them as read, because many of them are expository, and pick up the story in relation to phone hacking at paragraph 513.
Q. As far as you're concerned, you're director now from December 2009, so you produce a paper in January 2010 in which you refer to additional evidence which had come to light. You've also I perhaps should cover this in paragraph 510, page 33788, referred to libel proceedings by Mr Mark Lewis in the context of something Baroness Buscombe said at a lecture. So additional material which comes to light but which, I think I'm right in saying, doesn't cause you to update the report at that stage; is that correct?
A. That's correct.
Q. Then the DCMS report in February 2010, and we can recall the conclusions they came to
Q. referring to the "for Neville" email, the February 2005 contract, the Taylor settlement and the various other matters.
Q. In paragraph 515, you received a letter from Mr Rusbridger in September 2010 criticising your report and drawing your attention to a piece in the New York Times. Maybe we should turn up that particular letter. It's in file B4, tab 74, at the very back of the first B4 file. Page 41447, where Mr Rusbridger draws your attention to certain evidence which we know about but which I'm not going to read out, draws attention to the New York Times work and then says, at 41449, level with the lower hole punch or just above it: "The contrast between the PCC's report and the evidence of people with direct knowledge of events at the time is striking. The PCC, which has not, to my knowledge, spoken to a single journalist inside the News of the World newsroom at the relevant time, has accepted an official version of events. Four award-winning reporters who have done first hand investigation of their own have arrived at a directly opposite conclusion. So did the judge who heard the evidence in the Goodman case." Did that letter cause you any disquiet?
A. Absolutely well, I don't think it took that letter to necessarily cause me disquiet. I was aware of the New York Times piece being prepared really from the time I became director onwards. It subsequently appeared. We had this letter from Alan Rusbridger, who I'd met when I became director to discuss his concerns with what had happened in the past. I then prepared for the Commission a summary of the position as I saw it, based on Mr Rusbridger's letter but also based on what the New York Times had said and what had been around really in the preceding six months. So it did cause me disquiet and I reflected that disquiet to the Commission and asked them to consider it.
Q. Yes, you did that in a paper which I think you wrote in September of 2010. It's under tab 75, so it's going to be in the next of the B files. It summarises the position. I'm right in saying that you wrote this, am I?
Q. Can I ask you to look at page 41466, paragraph 39, under the heading "The validity of the 2009 report reopening the inquiry": "The Commission must consider whether the fresh material means that the 2009 report should be revisited (as suggested by Rusbridger). In 2009, the Commission was seeking to take a view on the material that it had seen in relation specifically to the issue of whether it had been misled in 2007. It is, of course, wrong (and mischievous) to suggest that we instigated an 'inquiry' into the practice itself and somehow exonerated the News of the World. That perception persists, however, as does the argument that we should have instigated such an Inquiry (even if we didn't)." So you were having it every single way you could there, I think.
A. Well, I'm trying to reflect, I think, the fact as I go on to say, the problem with how this was considered by the Commission was a lack of clarity about what it should and shouldn't be trying to achieve here and how it then sought to go perform that.
Q. You take this up again in paragraph 46: "The latest information perhaps suggests we should examine internally how we came to the conclusions we did and the extent to which we were clear enough about our remit and role from the beginning. This is still potentially perilous: would we commit to issuing a statement on the subject? We might actually consider this as part of our ongoing response to the governance review, which recommends the Commission give consideration specifically to the clarity of its role in difficult areas such as this." What internal examination was given, do you think, to the issue of the use of the term company "inquiry", whether it was an inquiry and whether it should have been an inquiry if it wasn't an inquiry?
A. I think certainly what then subsequently happened when we created, in January 2011, the phone-hacking review committee, almost it's primary function, or one of its functions, was to look at these reforms and come to a view about why how we operated in this way, if what mistakes were made and how one could, within the current structure, have done things differently.
LORD JUSTICE LEVESON
Just before you go to January 2011, still in your report, there's a prescient comment in paragraph 52: "There's no doubt that the breadth of the allegations is damaging to the PCC in that it will suggest to people that a system that allows such behaviour to take place is no fit system at all." That's right, isn't it?
A. And I think the point I've always said is that the over-arching systems, including the PCC's role in this, and in how the rule of law was enforced, the fact that this went on and it went on to whatever extent and we are still trying to establish we, by which I mean everyone, are still trying to establish the extent of it. It is a legitimate criticism that a system of self-imposed standards, enforced by the PCC which I don't want to suggest hasn't achieved material gains in other areas, but while that system was existent in 2003, 2004, 2005 allowed this to take place and I think we have to accept, very clearly, responsibility.
LORD JUSTICE LEVESON
A system of self-imposed standards? That's getting much closer, actually, to what you do, but when you wrote to Mr Rusbridger, you still used the word "self-regulation" in a way that actually blurs just this point, when you say: "I know you are a supporter of effective self-regulation and hope you will continue to help the PCC in achieving it."
A. I think that perhaps a lot of people have been guilty and I wouldn't recuse myself from this of imprecise language. My point is that the system of self-regulation, the existence of the Code Committee, the role of the PCC, the role of PressBoF in funding that, that is a system of self-regulation, and the question has to be asked and I think that we were right to ask it was: in this specific case, how did that system succeed or fail? And it is about self-imposed standards. That's what I take "self-regulation" to mean in the purest sense about it. That's to say there is a systemic point there to say newspapers are undertaking to restrain and regulate their own behaviour, and the PCC is the mechanism that that's enforced currently. But I don't disagree. I think the key question that comes out of phone hacking always has been not only the precise behaviour of the PCC, but the whether the system was such as to provide a proper mechanism for stopping it happening in the first place. It did not stop it happening in the first place. One can make an argument that if people are going to commit criminal acts and then conceal them, there are very few systems in the world that can catch them, but that doesn't mean that this system shouldn't be held responsible for allowing it to happen.
LORD JUSTICE LEVESON
I understand that, and I readily recognise that there will be questions about the police and many others.
A. Of course.
LORD JUSTICE LEVESON
But presumably one could devise a system that identifies self-imposed standards which actually is rather less dependent upon consensual opt-in than the present system.
A. I think that if one were to spell this out first, you could still have the element of agreement to it but it would have to be very, very clearly set out in advance, and that seems to me to be to say and we got close to this in the work of the phone hacking review committee. You need to say newspapers have to take responsibility for having internal processes that deal with the access of personal information, including from third parties, and that would have to be across the industry. The role of a future more of a regulatory body would be to say, "And our function would be to check that you're doing that, and if you fail to do that, to impose sanctions for that." That, to me, is the standards work, that although the PCC has had a role in standards and certain powers, that leap has not been made yet, and I think one of the virtues of this Inquiry and you will make your own judgments about this will be just to take a step back and look at the over-arching structure and see what's missing or what might be changed. That, to me, I think is a standards function. I'm not entirely sure it couldn't be achieved by agreement, but it would have to be set up and established for all to see, so that people then clearly consent to it.
LORD JUSTICE LEVESON
I'm going to run ahead of myself. I'd rather let Mr Jay take the line forward but there are a number of things there that I'd very much like to take up with you. I'll wait my turn patiently.
I do want to leave half of hour of your evidence to cover these matters. You're confronted with the horns of a dilemma to this extent: either the PCC had power to investigate and should have investigated, on the one hand, or it didn't have power to investigate but should have had the power to investigate, and therefore there's a systemic problem on the other hand. There isn't really a mid-position here, is there?
A. No, although I think the PCC clearly, because it exercised this, had the ability to ask questions. It clearly came to a judgment about the answers of those questions. Now, either because it didn't consider itself to have the full authority or the resource to pursue this fully, I think the PCC doesn't have the clearly defined mechanism to explore this type of systemic issue with the News of the World properly. You might say that it theoretically had the power and didn't test that out. Either it regarded itself as having limited power or indeed the power and resources that were available to it were insufficient, but it got into a position where it was making, as I say, a qualitative judgment about information that it wasn't really in a position to do, and the Select Committee, which has, arguably, greater powers than the PCC in terms of calling witnesses and having oral hearings to test it, they didn't necessarily reach any greater findings of facts, but they were more sceptical about the information which they did receive, which I think is a factor in this.
Q. Yes, and they also, although it wasn't on oath, interviewed a significant number of witnesses, didn't they?
Q. Which the PCC did have power to do, but it didn't clearly have the will and perhaps not the resources
A. I think it had the ability to ask questions, and you know, you spoke to Mr Toulmin about this. If one of the points of a system of self-regulation over-arching should be that newspapers volunteer accurate information to it, and if the PCC took the view that the News of the World were very, very strong in their position, one would expect them to be honest and full and frank with the PCC.
LORD JUSTICE LEVESON
It depends upon their relationship with the PCC, and that's one of the issues, isn't it? What is the culture of the relationship?
A. What I find interesting is even if you speak to people who are more hostile to the News of the World, like Mr Driscoll, who has reasons to have concerns about the News of the World it talked about the seriousness with which they dealt with complaints, and I can testify to that and that of other newspapers, that if you get a complaint, their response to it they, in my view, do take it seriously and I feel that they have a responsibility, which they exercise, to be frank and co-operative with the PCC. In this area and to take it to a logical conclusion, when Mr Toulmin wrote to them saying, "What information do you have, is it a rogue reporter?" one would expect them to be honest about that.
There are two aspects of culture, if I may, which I can take up with you in the context of the News of the World and its response to the PCC. The first point: would you accept that if one knows that the body to whom you speaking, here the PCC, does not truly have teeth, you might have reasonable grounds for feeling that you can get away with more and perhaps be less economical with the truth, whereas if you're
LORD JUSTICE LEVESON
Probably more economical with the truth.
Q. Yes, pardon me. Whereas if you're dealing with a regulator in the strict sense, you wouldn't dare misrepresent the position to them. Would you accept that?
A. I think clearly the notion of financial sanctions is a power that the PCC doesn't have and would focus the mind. What I'm surprised about, looking back on it, is that things were said both to the Select Committee and the PCC in a public forum, when there were people who will have seen evidence, wouldn't have known that that wasn't necessarily the true position. So to me, I think one would expect newspapers, if they're speaking to an external body that is likely to publicise what they say, that would be a reasonable check on what they disclose.
Q. One wouldn't dispute the generality of that, but I was making it slightly more piquant to this extent: that if, for example, a lawyer were to misrepresent the position to his or her professional body, the automatic consequence would be erasure or being struck off. It's as simple as that. That's not going to happen in this context because you don't have any teeth. Although the expectation might be the newspaper tells you the truth, ultimately the newspaper knows that there's no sanction if it doesn't tell you the truth. That's true, isn't it?
A. Yeah, and I think that as we internally and this has been discussed externally look at ways for improvements to the system, one could have as a whether you agree with the contractual notion or not, one could have, as a matter of agreement, by contract in advance, disclosure of information and clearly a fixed penalty for failing to do that, and I think that's a perfectly reasonable proposal, taking on board the lessons of the News of the World.
Q. Yes. The other cultural point it's a slightly more loaded or possibly even sinister one is that there's there may be a special relationship between News International, a particularly power body, and the PCC, which caused the PCC, either consciously or perhaps subconsciously, to pull its punches. Is that fair, do you think?
A. I don't think it's fair, no, not in my direct experience of the relationship with News International at all. In terms of complaints, in my time, there was no News International person on the Commission while I've been director, and so the relationship we had with those papers were primarily on the complaints function, and in that sense, their managing editors were quite good at dealing with the PCC in terms of complaints. There may be an issue here of the PCC's relationships with managing editors and some of these responses may have come from a more corporate position.
Q. International comparisons. Paragraph 688. Can we just try and summarise the position here? Accepting, of course, that historically, culturally, socially, the position of the press in any particular country is going to vary, and we won't necessarily understand, for example, how it might operate in Denmark as opposed to the Balkans, as opposed to Estonia or wherever.
A. No, I agree with that.
Q. You point out in paragraph 691 that all bar three, I think, of the PCC-like organisations in Europe are voluntary in nature. There are three that have some basis in legislation: Denmark, Luxembourg and Lithuania; is that correct?
A. Yes, as understand it.
Q. If we can take the one that's possibly closest to the United Kingdom, the Danish Press Council. You explain it's established by legislation and entirely funded by the media. Do you happen to know who sets the relevant standards? Is it the council itself or is it the legislation?
A. I do not know, I'm afraid. I could find out, but I don't know.
Q. Funding. Paragraph 694. The longer-established Press Council is generally funded in full by the media industries they operate, although in some jurisdictions there's some degree of state subvention; is that right?
A. Yes, the most notable example being Germany, which has a no-strings-attached grant from the government.
Q. Paragraph 701: "The primary work of all press councils is the investigation of complaints." To your knowledge, do any press councils or commissions set out standards more generally?
A. No, I think that they are considered to be primarily complaints-handling bodies.
Q. You give the answer to this, 705
LORD JUSTICE LEVESON
Does that mean they have no standards bodies?
A. I think that my understanding is that they are no, they are primarily these are the bodies that exist in these countries, and they're primarily public-facing complaints bodies.
LORD JUSTICE LEVESON
But does that mean that in these other countries, there may be somebody to whom you can go if you have a complaint about the press but there is no body that oversees standards at all, even if it's not called a Press Council?
A. My understanding would be that there is not another body. I know that the ombudsman in Sweden has an educational role in terms of training and promotional work, but there's a large extent to which that crosses over with the PCC as well. I don't believe that there is another body to which I'm not referring here.
Culturally, the country which has the closest association with the United Kingdom, of course, will be the Republic of Ireland.
Q. You tell us a little bit about the system. They have an ombudsman system, one which is akin to an ombudsman, I think in paragraph 711; is that correct?
A. That's right.
Q. Do you have direct knowledge of the system in Ireland which you can share with us?
A. A little bit. To my understanding, it is rather similar to the PCC, except for this two tier approach that it takes, and the fact that its existence is referenced in the Defamation Act, which I think is a significant factor to which you will no doubt refer, and I think is an important one.
LORD JUSTICE LEVESON
I think you're probably right, yes.
A. Actually in terms of structure, it is they used quite a lot of PCC expertise in terms of setting it up, so it is primarily a complaints-handling body. The ombudsman takes a lot of complaints. He refers them up if he thinks there's a breach of the code. That, though the council acts as an appeal to a certain extent to the ombudsman role, but they tend to track the work of the PCC, so they would have developed, I believe, an anti-harassment service following on from the PCC developing it. Structurally, the ombudsman/Press Council relationship is significant, and it's the Swedish model, but in reality that's just a two-tier approach to the same thing, which is really dealing with complaints.
LORD JUSTICE LEVESON
Is that voluntary?
A. It is voluntary, yes, although it's incentivised, I believe, by the Defamation Act.
LORD JUSTICE LEVESON
Incentivised by the Defamation Act? In other words, there's some benefit?
A. There's a Reynolds-type benefit, but to say I believe, and I don't want to hold myself out as an expert in this
LORD JUSTICE LEVESON
You don't need to concern yourself. We'll find out.
A. But my understanding is the incentivisation is that if you are a member, you can have at least a shot at a Reynolds defence by saying you're a responsible journalist.
If you're not a member, you can't?
A. No, although I think the difficulty that exists is that if you're, say, an NGO or a charity, you can still say you have your own set of standards internally that you're following which still will allow you to avail yourself with Reynolds, but I suspect if you're a newspaper that's not a member, the judge would look pretty dimly on you trying to say you're a responsible journalist if you're not a member of a system which deals with responsible journalists.
Q. Before we look at the future, may I just touch on the Desmond problem, as it's been described to us by others. In this smaller file, which is section 5, it's under tab 34. B5.
A. Section 5, tab 34?
Q. Yes. It's an email that you sent to the Commissioners on 4 January 2011, which is just before, I think, Northern Shell pulled out, because that was in mid-January.
Q. There was warning of it because they refused to pay the subscription.
Q. As I think they'd done in 2008 and 2009?
A. That's right. The difference then was that we continued to consider complaints but that position had changed by 2010/2011.
Q. The point you made, if I can paraphrase it, in the middle of the page, is that if they're not going to pay and indicate they're going to stall payment, the next step is for the PCC to decline to deal with complaints about the titles: "This will inevitably cause the PCC practical, philosophical and procedural problems." Then you attach two papers. The papers are available, but what I'm going to ask you to do is to summarise for us those three problems.
A. It sounds I think I was getting carried away with my own rhetoric there. I think the practical and procedural are probably closely linked together. If people wish to make complaints, particularly members of the public, and we're not able to offer a service to them, that is a significant practical problem. There is the secondary problem of a lot of our work is based on pre-publication work, and that's based on willing co-operation. That would no longer necessarily be forthcoming. The philosophical problem is the one that you'll be very familiar with, which is that if you're going to have a system, in the broad sense of a term, of self-regulation and a major player doesn't want to be part of it, that raises a serious issue about the functionality of that system.
Q. That's the penultimate paragraph of the email at 43237. It's also in one of the two attaches papers, 42331, paragraph 15.
Q. Thank you. The strengths of the PCC many of these you've covered in your evidence. Can I just ask you to clarify one point, which is the time it takes for complaints and investigations to be determined on average. This is paragraph 723, point 2, page 33871.
Q. When you say investigations take an average of 33 working days, what are you including within "investigations"? More precisely, are you excluding the investigations which fail at the first hurdle because they're out of remit or they fail to raise a prima facie case?
A. Yes. We're excluding those. The overall turnover of all complaints in 2010, I think, was 17 days, but that includes all those which go at the first hurdle. The investigation is one where we've taken it up with the editor and are having an exchange with correspondence.
Q. Thank you. I think in 2010 we had 1,229 of those?
A. Yes, and I think it's gone up to 13,00 and something in 2011.
Q. So an average of 33 working days. The weaknesses. First of all, existential. It's not a regulator in what you call the classical sense, possibly in any sense of the term, would you agree, Mr Abell?
A. I'm happy that we shouldn't use the term "regulator" to describe the PCC. I think it performs some functions that a regulator would. I think pre-publication intervention, having a code of practice, training, they are regulatory functions, but I'm that's why I don't believe it is should self-describe as a regulator. That's why I say it there.
Q. In 725, you address a philosophical question about whether an industry with freedom of expression at its centre should be subject to the more formal and then you have "statutory" in brackets regulation. Can you explain what you mean by that?
A. Yeah, I think there's two points there. One is the statutory point, which will be endlessly and rightly discussed, which is: if you versus a statutory involvement in the system, how far can you have that whilst still preserving freedom of expression? Then there's the second point, which is not even an issue, I think, necessarily to do with statute, which is that if we believe in a relatively unfettered circulation of information, then the powers of any body, whether based on statute or not, to intervene, to impact on editorial decisions, has to be carefully considered and weighed up. So I'm not saying merely that self-regulation is good, statutory regulation is bad, which is often a very simplistic way of looking at it. My point is that at the heart of the newspaper industry is legitimately the notion of people exercising their freedoms to be polemical sometimes, editors exercising their discretion about what information should be included, responding to the needs and wishes of their readers. That doesn't necessarily break down into a statutory/self-argument, but actually breaks down into a more fundamental one, which is: within the context of that industry, what checks should be placed on the circulation and dissemination of information? I think that's a very important philosophical question, whatever the structure you're debating.
Q. There are at least two different concepts there. Are you saying that given the nature of the activities newspapers habitually and traditionally carry out, the weight that should be given to Article 10, freedom of speech considerations, which we do see in article 53.7 of the articles of association, should be very much stronger than the Article 8 or privacy rights of individuals?
A. No, I don't
Q. Is it a matter of philosophy?
A. No, I don't think that's right. I think on the specific cases they have to be weighed properly. My mission is if you're thinking about a structure, one has to have regard for the nature of the industry itself, and I think that can't come at a compromise of the rights of individuals. I very strongly believe that the way the PCC has operated has never been Article 10 at the expense of Article 8, and I don't think even its construction is based on Article 10 at the expense of Article 8. My point is: in those cases you have to conduct the requisite balancing act, but I think regard has to be given to the nature of the industry when coming up with the over-arching structure for doing that.
Q. Possibly I'll come back to that point. Is there truly an objection to statutory regulation if it's made absolutely clear that neither the legislative nor the executive will be responsible for the imposition of any standards?
LORD JUSTICE LEVESON
Or indeed whether the standards have been broken. The question is and I think you might have put it correctly that statutory and self is an artificial description of the debate.
A. I think that the risk of legislation is that the course of legislation can lead to things being added and amended by the system of Parliament we have, and so there's a risk inherent in legislation because titles can be changed of bills and amendments can be made and debated. That's right and proper, but it does raise the spectre of a parliamentary involvement in setting out the principles and therefore the effect of the regulation. But I think, speaking personally, that if one can conceive of statutory recognition of a body, or a system where the existence of it and its broad framework was recognised by the state, that comes short of statutory regulation. I think that's a perfectly legitimate aim to be examined. I think that is different to either conferring powers to the state or even conferring backstop powers to the state, because I think that does raise legitimate questions.
LORD JUSTICE LEVESON
This goes back to what Mr Jay called the Desmond question. Mr Desmond made it abundantly clear why he withdrew from the PCC. He clearly has very serious differences with some very big players in the PCC.
A. Well, actually, my understanding Mr Desmond, I think, didn't want to pay the money, was the first thing that I ever heard about this and consistently heard about this. His objections, I think, were less to the PCC as to the and maybe this doesn't matter, but I think it was to the over-arching system. Mr Desmond does not regard himself collegiately with other people in the industry who do subscribe to the system. I don't think he likes the idea of a funding body like PressBoF on which sits people with whom he is not in tune. So I think his concern is notions of collegiality which he doesn't feel.
LORD JUSTICE LEVESON
That may be a fair way of putting it but it's not a very happy position to be in that our system, whatever the system is, depends upon that.
A. No, but I think one and this may not be a hugely helpful answer but either you believe that there is a prospect of universality of a system or you don't. Now, to me personally, the advent of online, the number of people who look like they can be newspaper-like products online with varying jurisdictions means notions of universality which existed very strongly 20 years ago "Here are the following papers which exist" becomes harder to manage. Clearly, the system has to have the buy-in and the binding agreement of the major players action that's why the Desmond problem is called the Desmond problem; correctly, in my view.
LORD JUSTICE LEVESON
But it's not just, actually. There are magazines that aren't in the PCC.
A. Sorry, my point is this: major players have to be involved. How does one conceive of a system which definitionally encompasses everyone who is performing a newspaper-like function? Private Eye's not a member of the system either. I don't think universality actually is possible in the new world we live in, but clearly every significant player needs to be caught. That, to me, I think is a real dilemma facing everybody, because if you had a system which Richard Desmond signed into and was bound by and people like the Huffington Post, who I understand would be willing to get involved voluntarily you could create that which would cover the vast majority of what people conceive of as significant players. That, I think, is an achievable aim. To come up with the notion that everyone who performs a newspaper-like function should be caught and compelled, and if they don't agree or play along with that compulsion, that would need to be enforced by someone, the state saying, "We are catching you as a newspaper, we expect you to do this and we will have some form of enforcement if you don't go along with it" that, to me, I don't thinking is actually practicable any more in the world we live in. So I entirely agree that you have to have the players in and you have to try and encourage membership but and try and bind them in once they are members, but I think the notion of a compulsion across the board for universality, personally speaking, I don't believe it achievable any more.
LORD JUSTICE LEVESON
Whether it's desirable to achieve is another matter. Don't set me a challenge. The desirability of it may be something else, for reasons that you forcefully argue.
In paragraph 725, you identify a number of weaknesses. It's not clear whether you're saying these are perceived weaknesses in certain quarters or they're weaknesses which you believe have validity.
A. I think some and to me there's a if a perception is sufficiently widely held, it is as significant as something that is real. So I don't wish to diminish something by merely saying it's a perception. People can do that and that diminishes the importance of perception. For example, concerns about independence to me in terms of the practical work of the PCC in the complaints handling, I have no personal concerns about independence, but if people feel that they can't have confidence in the system because of concerns about independence, that's a very real concern. I feel, from my experience and some of the work we've done, that people have regard and confidence in the PCC as a complaints-handling body. I firmly believe that. But notions about independence are absolutely crucial to the whole system. So I don't want to necessarily always draw the distinction between perception and reality, because I might have a view of the reality but that doesn't mean I don't have to deal with the perception.
Q. No, that's a very fair point. What about the issue of sanctions, for example, where you say: "Some observers question whether sanctions I think it may be fairer to say that most observers do outside the newspaper industry itself.
A. I think the issue of sanctions to me has always been predicated on how you would introduce, say, fines into a fast-moving, complaints-handling system. I think the answer to that may be that you don't but if you were to be much more obvious in the future in a future manifestation of systemic issues, what might be called standards issues so you deal with the complaints in a fast, economical way, which I think you can make an argument does not include a monetary aspect, because that could slow it down, but you then have a systemic role to look at issues of broad standards or internal systems that could carry with it a financial penalty, because it would be a much more drawn out process anyway, much more formal, and the issue of fines then could be brought in without necessarily compromising the ombudsman function, if you like, the complaints-handling function. And once you make that mental leap into sort of two prongs, to me the notion of fines becomes more of an attractive option.
Q. But if the fines are only going to be levied in the context of an investigation which has identified a systemic failing, possibly there are two problems. First of all, the complainant won't see any link between the transgression in his or her case and the imposition of a condign punishment. Do you agree with that?
A. That's possible, but if you're clear enough about it and you still have imposed a suitable sanction in respect of the complaint, then he or she, the complainant would have the advantage of whatever that sanction may be, or settlement even, but the systemic point would be addressed post hoc. If people are aware of that, and indeed if they're informed about it when it arises, then I think they would take some succour from that potentially.
Q. The second point is that given we're investigating or might be investigating systemic issues of the nature the PCC or its successor body would only be doing that exceptionally, there would be considerable delay. That would not necessarily bolster public confidence, would it?
A. I think what it would be able to do is you would still be able to offer swift redress to complaints. There would still be all the existing operations of the other authorities, but there would be an appropriate response after the event that would lead to standards changing punishment, if that is necessary, but systems changing for the future. I think that people would want to see that, and reading the evidence here, one of the things that people say, quite rightly, is whatever happened to them, one can talk about how that should be remedied but they don't want to see it happen to someone else. So that, I think, is a very powerful step that the public would want to see.
Q. I think with much of this, when you're identifying either the perceived weaknesses or weaknesses which some observers have identified, it keeps returning to the extension problem or the definitional one. Is the body we're talking about effectively going to be a self-regulator in the sense in which you define the term namely, it's responsible for standards within the industry which the industry itself imposes and itself ultimately enforces through the PCC or are we talking about a regulator with greater teeth, possibly with a statutory framework, but not necessarily one which
A. To me, I think you can go a long way with definitional clarity, and which can include greater teeth by saying that's why the two-pronged approach and leave aside the potential third prong, which I know you're interested in, to do with arbitral reactions to libel and privacy, which I think is something that can be brought in or out as you or others decide. You have a two-prong approach, and if it's agreed in advance and this seems to me to be the clear benefit for the future. We have been internally discussing and I know Lord Hunt will go into this in detail his proposals that have followed on from the work of the reform committee to which I refer in a sort of confluence of ideas. If you have it contractualised, and whether or not you think that's sufficient and you require a legislative background, but at least, even if you don't have that legislative background, you have it accepted and agreed in advance that these will be the two functions, that these will be the penalties for failing to disclose or failing to maintain internal standards, and yet this will be the complaints function, which I think the PCC and I do want to be clear about this. While I'm very keen to come up with proposals that may or may not be useful to you to how to make it better, I don't want to leave the impression that I don't think the people at the PCC have not done a tremendous job in helping people, because I firmly believe that they have. But if the real benefit would be clarity and agreement, and I think you could achieve that by a contract in advance to say, "We expect the body to do the following things and we will contribute to the body in the following ways", and that would be agreed in advance, irrespective of what the legislation ended up.
Q. We'll hear more about this tomorrow. Framework which you're suggesting may be the way forward is a contractual framework, possible statutory mention of it, but not imposition of the framework through statute, clear understanding of what the rights and obligations are under the contract, and, is this right, participation in the contract for a fixed-term, but on the other hand you can't compel people to join up to the contract in the first place?
Q. Did I get all of that correct?
A. To my mind, that is how I see it. Now, the notion of compelling people to be a member is not one I can offer the perfect answer to.
LORD JUSTICE LEVESON
Well, the way you can do it is not so much with a stick
A. As with a carrot.
LORD JUSTICE LEVESON
as with a carrot, and the question then and you've identified a possible carrot yourself, that there is recognition of your membership of the club, or whatever you want to call it, when consideration is given to perhaps available defences or indeed to whether there is a risk for exemplary damages.
A. I think that sort of incentivisation is very appropriate and should be strongly considered. I suppose the difficulty one has to come up with is if that incentivisation leads to every major newspaper player, some online sources that otherwise would be outside the system wanting to be members, a general kite-marked view that if, by doing so, you're declaring to your standards you have a set of standards something we've been very keen to push and I'd remain keen to push if with all that you get all the major players, a few online people, so you're starting to create a clearly regulated sphere, if that is considered to be enough, then I think that is very workable and doable. To me, the risk comes, which I don't agree with, in saying, "But anyone who looks like a newspaper online has to be in", because I don't think that's achievable, and if we can all be honest enough to say we need to have the majority of people, or the most significant people, or people who are performing a newspaper-like function the most, that readers would expect to have standards, that is a legitimate aim, and I think should be achieved, but that means dropping the notion of universality, and if the consensus is that that is doable, then I think that allows practical consequences that mean something is achievable there.
LORD JUSTICE LEVESON
I don't see why it shouldn't be universal if the carrot is sufficiently attractive.
A. True, but if some people are carrot averse, and they decide not to do it, then if we can live with that, I suppose, is the question. But you're right, the more attractive that you make it, the less of a problem it would be.
I think we're all agreed the problems are going to arise more acutely if a major national player refuses to take up the carrot, on the one hand, and the smaller online outfit does so on the other because we may be able to live with the latter and not the former, politically
A. Politically, and I think from a consumer perspective we shouldn't have to live with a big-player problem.
Q. What happens under the contractual model if, after a year or two, the major national player says, "I don't like this system any more; I'm out", although in theory it's a five-year contract or whatever, how do you enforce
A. No, there are questions whether you can build in compensation arrangements, because in a contract you can't build in penalties, but you can build in compensation, but that would be difficult. I think the bottom line with all of this is that if major players aren't willing to be part of a system, then, even though it doesn't want to, and even though it creates huge difficulties, something more impositional from the state will have to take place.
Q. So is the contractual model then yet another iteration of the last-chance saloon
A. I don't think it is.
Q. let's see how that plays out before we look at the statutory model?
A. I don't think it is because I think (a) it doesn't preclude a statutory model, because I think we can talk about I think it's really important for the newspaper industry that they don't just throw their hands up about statutory regulation the whole time. I always say that there's a sort of Voltaire on his death bed, the priest said, "Do you deny the devil in all of his form?" and Voltaire, said, "This is the wrong time for me to be making enemies." I think the newspapers have to be exactly that way in regard to statutory regulation or statutory involvement. They have to accept that people need to be involved in this. It has to be a measurable set of standards that they're following up to. So the contractual thing is not in the absence of a legislative recognition, but to me offers a more solid, a more explicit and a more enforceable model than there is at the moment.
LORD JUSTICE LEVESON
Do you think that each one of those advantages is itself desirable? More explicit, more solid, more enforceable?
I think I'll leave it there.
LORD JUSTICE LEVESON
There's a rather small detail that I'd like to ask you about. It's not considered small by those who complain about it. You may have read or seen the evidence of a number of groups last week who spoke with real feeling about the failure of the PCC to be prepared to deal with complaints from such groups
LORD JUSTICE LEVESON
where, by definition, there would not necessarily be an individual complainant. Domestic violence, women's groups, those concerned about Islamophobia and the science group. Is there any reason why the code should not be devised in such a way that permitted such groups to pursue complaints? There will always be the remedy of being able to knock out the ones that you feel don't advance anything or don't otherwise engage the code.
LORD JUSTICE LEVESON
But there is a concern and it's not just been expressed by them that the definitional provisions are used to exclude what might be legitimate complaints, taken in the round, but which don't actually tick the boxes. I'm sure you understand the point.
A. Yeah, I do. I think that what we've done rather better recently is I actually think that it's the duty of the PCC to engage with groups like that. If you look at the parallel case of, say, mental health reporting. That's where we've worked very closely with various mental health charities who do raise complaints about terminology or points of issue. Even though there's no first party to the complaint, we take those complaints. We have done something similar with the Islamic community, although as the evidence suggests, not sufficiently. So I think there's work that has been done and can be done to have these people complain to us about general issues of fact, particularly, where you don't require a first party, and I think the work we've done with mental health is a good model for that. We have quite close links with Broadmoor hospital, but more generally with Shift and with mental health charities, where they come to us and say, "Here's a problem in terminology", for example, "How do we stop this happening?" and then we host seminars with them and bring in the newspaper industry to lead to a change in the manner of reporting. In science reporting, we do take complaints from members of the public. We also then contact the scientists themselves and even if they don't want to complain, ask them to just give us an overview of their own position. So I think we have to do more to reassure these people and actually have to do more directly to help them, but I think there is provision there for that work to be done, and I took their evidence as a concern that they didn't feel that we were offering that and actually as a legitimate challenge to find a ways to do it.
LORD JUSTICE LEVESON
Another challenge is the mismatch between headlines and text, and the willingness of the PCC to read into the small print words of qualification to headlines which, on the face of it, are clear and explicit. Do you think there's work to be done in that area?
A. I think there is. I think there are several examples of cases where, although one should always look at the article, it doesn't provide a get-out-of-jail for a misleading headline. There's a case we've done very recently, which we'll publish shortly, on that point. So I think no, there are examples of us doing it and I know individual commissioners feel equally strongly about it, that while one should look at the two together, you have to be very careful that you don't allow a late paragraph to be used to apparently negate an inference drawn from the headline. So I think I am conscious of that.
LORD JUSTICE LEVESON
Thank you. Mr Abell, I think that's sufficient, although I don't rule out the prospect of asking you to return at some time if I want to try out ideas on you when they are more fully formed.
A. I'd be very happy to do that.
LORD JUSTICE LEVESON
Thank you very much. Anyone interested in the evidence of Mr Abell should not believe that it is restricted to that which we have heard over the last few hours. His 408-page statement is utterly comprehensive and deals with each aspect of the work of the Council. I repeat my thanks to him for it. Right.
There's a problem about the availability of one of tomorrow's witnesses. May I find out what it is and perhaps report back in a couple of minutes?
LORD JUSTICE LEVESON
Yes, certainly. (5.00 pm)