RESEARCH TOOLS


Afternoon Hearing on Tuesday, April 3, 2012

No witnesses gave statements at this hearing

Hearing Transcript

(2.00 pm) Directions Hearing for Module 3
LORD JUSTICE LEVESON
Right. Before I forget, might I remind everybody that we are starting tomorrow morning at 9.15 in order to take evidence by video-link from Northern Ireland. Whether that has a corresponding impact on the time we finish will remain to be seen, but everybody can at least recognise that we will not be sitting after tomorrow for some days. Right. There are a number of things to discuss this afternoon. I identified some headings at the beginning of the week -- that's to say yesterday -- so I'll take them in that order. The first is to speak about the remaining outstanding issues from Module 1. Before I do, I'm pleased to see Mr Rhodri Davies. I hope you're in good form. Remaining outstanding issues for Module 1. The first is this: on a number of occasions it has been suggested to me that I have not paid sufficient attention to the good work of the press. Perhaps that's an inevitable consequence of the terms of reference of the Inquiry, but in order that nobody can suggest that I have paid insufficient attention to that aspect, I will invite any title that wishes to submit what they perceive to be their top five public interest stories over the last few years, merely to reflect the other side of the coin. The second thing that I want to say in relation to Module 1 is that I intend to make the press cuttings that have been provided by a cuttings service to the Inquiry, which identify the reporting of the Inquiry, part of the record. In other words, I will include within the evidence all that everybody has said about what the Inquiry has done. The third remaining outstanding issue concerns Milly Dowler. Mr Jay, I understand that we heard from Surrey only the other day that there was still some work that has to be done. I'm content that be done, but I think that the time is coming when we simply have to draw a line under that story, so I make it clear that I will hear the rest of that story in the week commencing 8 May. Does anybody have any other issues outstanding from Module 1? I'll deal with submissions and all the rest of it later. Yes, Mr White?
MR WHITE
We are very nearly finished compiling a corrections statement responding to certain pieces of evidence that we didn't formally challenge at the time but we want to respond to. It's very nearly complete and we will serve it shortly.
LORD JUSTICE LEVESON
Thank you very much, Mr White. That will be helpful. Right, the next item on my agenda is core participant status for Module 3. Now, as I understand the position, in the case of Module 1 through Collyer Bristow and in the case of Module 2 through Bindmans, a large number of people have been core participants but their default position is that if they wish to remain as core participants, they must now apply. In relation to the press, they are core participants for Module 3 and therefore if they no longer wish to be, they should apply the other way around, and they can drop off. So let's deal with those now. I've also received a number of applications from individuals who seek core participant status, and I'll hear from them shortly. Right. Let's just understand where everybody is. I know that, Mr Sherborne, that your solicitors have submitted a letter which we'll come to in due course. Let's just wait for you to -- before we start your submission. I'd just like to know where everybody else is.
MR SHERBORNE
Sir, of course.
LORD JUSTICE LEVESON
Right. Let me ask the question of -- Mr Garnham isn't here. What's the position of the Metropolitan Police?
MS MICHALOS
Our understand, sir, is that you ruled that we were going to be core participants for the entire Inquiry and we wish to remain a core participant for Module 3.
LORD JUSTICE LEVESON
If I've already ruled that, so be it. Mr Phillips?
MR PHILLIPS
I have spoken to Mr Jay and we don't make an application to be core participants for Module 3.
LORD JUSTICE LEVESON
Thank you very much indeed. Does any representative of the press core participants wish to drop out? (Pause) What was the position with the NUJ? MR HARRIS: Sir, our understanding was that we were core participants for the whole of the Inquiry and we would wish to remain so.
LORD JUSTICE LEVESON
All right. Well, I'm touched by everybody's enthusiasm. All right, Mr Sherborne?
MR SHERBORNE
Sir, I hope you're touched by the fact that there are a number, albeit a very much limited number, of core participate victims who wish to continue to participate in Module 3, as they have done in modules 1 and 2.
LORD JUSTICE LEVESON
Yes, but there is a slight difference here, isn't there? It's perhaps worth saying it, and I'll say it to you because it's also relevant to all the others who seek core participant status. Module 1 was concerned, in short form, with the press and the public, and in particular concerned the way in which the press investigated, collected and reported stories concerning members of the public, whatever their background, and the regulatory framework which dealt with allegations of illegal, unethical or other behaviour breaching acceptable standards. Module 2, relating to the police, dealt with the interreaction between the press and the police, and was relevant to those for whom you appeared during that module and still do, because we're doing it, because, of course, they had a legitimate complaint that the police had not investigated sufficiently the allegation of mobile phone hacking, of which Module 1 was the central but not the only feature. So that works in those two, but Module 3 isn't quite the same, because Module 3 is really directed, it seems to me, to the relationship between national newspapers this time -- and the word "national" appears in the terms of reference -- and politicians, along with its impact on media policy, cross-media ownership. So it's the consequences of the relationship on the creation and implementation of policy at the highest level, including obviously the nature and function of the press in a democracy as a vehicle for public debate. Now, one of the features that concerns me, and which I'd be particularly pleased to hear you deal with and all those others who seek core participant status need to think about, is the extent to which, within that remit, it is truly to be argued that they play not merely a direct but a significant role in relation to those particular issues. So it strikes me that this module -- and I'm happy to hear argument on it -- is much more policy-focused than individual impact-focused, if I could put it that way.
MR SHERBORNE
Sir, I understand that and I do understand that there is a difference between modules 1 and 2 of part 1, and Module 3, and it is for that reason that the number of core participant victims who seek to participate in Module 3 is, as I say, very much reduced. Can I explain that they fall into two categories? The first category are what I might call the politicians who have either originally been core participant victims through modules 1 and 2, or, in the case of two further politicians whose names have already been identified to the Inquiry -- and I can now mention them, namely Tom Watson and Evan Harris -- they are seeking what I might call fresh participation in Module 3. That's the first category. Sir, as you say, the remit set out in the terms of reference for Module 3 is to enquire into the culture, practices and ethics of the press, including contacts and relationships between national newspapers and politicians, and one particular aspect of that Inquiry, as I understand it, will be the influence which the press have had over Members of Parliament and those connected with them. Whether that influence is exercised through direct intimidation, we would say, through the publication of articles designed to ensure that those who oppose the interests of the press are either deterred from doing so or vilified, or through intrusion into their private lives, either to find out the sort of person that the politician is or to pressure them into taking a certain course, we say that to that extent, those individuals whom you're aware of, sir -- and I can name them: Chris Bryant, Simon Hughes, Denis MacShane, John Prescott, Clare Ward and Tessa Jowell, in addition to Mr Watson and Mr Harris -- we say they have played a direct and significant role in relation to those matters. Or, to use the other words of rule 5, they have a significant interest in an important aspect of the matters to which this module relates.
LORD JUSTICE LEVESON
Do you think that this module does include an investigation of the extent to which the press have intruded into private life? Why wouldn't that have been Module 1?
MR SHERBORNE
Well, it may be Module 1, but to the extent that that has been commissioned or intended to influence policy decisions by Members of Parliament, it falls squarely within the terms of remit of Module 3. Examples of that, sir -- you've had a letter from Ms Allen and I can't improve on it, but what I can do is summarise it.
LORD JUSTICE LEVESON
You'd better, because nobody else has.
MR SHERBORNE
For everyone's benefit, I will summarise what we've said, and the particular interest, for example, of Mr Watson and Dr Harris, because they do exemplify the point that I'm making. Mr Watson, if you'll recall, was put under surveillance by the News of the World. That was confirmed by James Murdoch, who has apologised. He was put under that surveillance in order to influence what the Select Committee was doing in 2009 and since in relation to investigating the role of the press. Now, that, in my submission, falls squarely within the contacts and relationship between the press and politicians and the extent to which the conduct of each might influence the other. Mr Watson, of course, as you'll recall -- there are other ways, if you have the email in front of you --
LORD JUSTICE LEVESON
Yes.
MR SHERBORNE
He was libelled after he'd resigned as a defence minister, having been targeted by the Sun, and he was told by, as you know, a well-known politician that he'd been forced to call off the attack dogs in relation to News International. In relation to Dr Harris, of course, he was vilified by a particular newspaper organisation. He can give evidence in relation to the passage, for example, of the 2008 criminal justice and immigration bill and the amendments, amendments which you'll recall evidence was given by the Information Commissioner about in relation to Section 55 --
LORD JUSTICE LEVESON
But he can give that evidence anyway, can't he, Mr Sherborne?
MR SHERBORNE
It's not simply a question of giving evidence, in my submission. It's the assistance which these individuals, as a group, can provide, because without the ability to see the evidence in advance that others are giving in relation to these precise topics, they can't, for example, feed in the type of questions that they've managed to feed in to the Inquiry, hopefully to great assistance, over both modules 1 and 2, and they can't provide assistance in the form of closing submissions or submissions in relation to a number of matters which have arisen throughout the modules; for example, warnings under Rule 13, credibility submissions and so on. So we say it is the unified voice which is given to these particular core participant victims -- and I do use the word "victim" advisedly, given that each of them has suffered at the hands of the press in order that, as I say, these organisations can exert influence over politicians and the policies which they put forward. So we say it's only through being core participants that these particular individuals can provide the assistance that is necessary, in my submission, so that the Inquiry can carry out its terms of reference in the fullest possible respects. It is only through being core participants that this can be done. When one talks of a unified voice, that does bring me to the second category of individual, and those are people who are not politicians by trade but they remain victims of the culture, practices and ethics of the press that has been displayed throughout modules 1 and 2 and we say carries on through Module 3. You have a list. They are a very much reduced list. I think there are three individuals on that list who would like to continue in their role as core participants through Module 3, and we say that this is that unified voice that they provide in terms of participation, not just in the questions that they can help the Inquiry with in terms of the witnesses that come to give evidence in this module, but also in terms of closing submissions, sir, which you will require, which will deal not only with modules 1 and 2, but with 3 as well.
LORD JUSTICE LEVESON
Yes, but they don't need to be core participants in relation to Module 3 to make closing submissions on modules 1 and 2.
MR SHERBORNE
Sir, they don't, and I appreciate that their request to be core participants in relation to Module 3 is not as forceful as the first category, namely the politicians, who I do say have a direct and significant role to play.
LORD JUSTICE LEVESON
Yes.
MR SHERBORNE
Unless I can assist any further, sir -- as I say, you have the emails from Ms Allen which set out in detail, for example in relation to Dr Harris and Tom Watson, both of whom are new participants.
LORD JUSTICE LEVESON
Thank you.
MR SHERBORNE
I'm grateful.
LORD JUSTICE LEVESON
Right. Is Mrs Blood here? Well, I've received a submission from Mrs Blood, which I shall deal with in writing. Mr Jackson has told me that he's not going to be here, so I'll deal with that in writing. Ms Decoulos? I think it's probably easier because then it can be recorded. (Pause) Ms Decoulos, before you make your submission, I do want to underline that this module is not concerned with individual acts perpetrated by newspapers on you or indeed on anybody else, or indeed the police investigation of those acts. This is very much a political focus, and I am, at the moment, struggling to see -- I know that you applied in each of the other two modules and the Divisional Court have twice been the subject of applications that you've made against refusal and I think the Court of Appeal once, so what I'd be very keen for you to do is to explain to me why your experience should bring you into Module 3.
MS DECOULOUS
Well, I know it may seem a bit unusual, but I actually have a good reason. But before I say that, I did submit a letter as well, as you know.
LORD JUSTICE LEVESON
I've got the letter.
MS DECOULOUS
And I hope you will put it on the website.
LORD JUSTICE LEVESON
No, I won't put it on the website. I don't put the correspondence on the website. I'm not prepared to have the conduct of the Inquiry dictated by anybody else.
MS DECOULOUS
Well, I'm terribly sorry. I'm not trying to dictate, but this is -- as you know, Mr Sherborne just made his submission, and when he made the submission for Module 2, I don't really know what your judgment was, as I said in my letter. It's not a reasoned judgment. He wrote a letter giving his reasons for his clients to continue as core participants and that is -- to me, whoever has applied to become a core participant, this should be a transparent process. It is not a transparent process, and considering I've been trying to become a core participant for a long time, as you know, and -- I have been libelled by nearly everyone in this room. I have dealings with everyone in this room, including Mr Sherborne, as you know, and the process so far has been unfair, is my submission --
LORD JUSTICE LEVESON
Yes, Ms Decoulos, there's no point in repeating the submissions that you've made twice to the Divisional Court and once to the Court of Appeal civil decision. I have made a ruling, you challenged the ruling, the court has decided, and I'm not going to revisit them.
MS DECOULOUS
Okay, the Court of Appeal made a mistake, actually. They said that part 1 is over. There are serious errors in the judgment of the Court of Appeal, which I am going to write to them and deal with, so just for the record --
LORD JUSTICE LEVESON
The Court of Appeal, for the record, identified that your appeal was totally without merit, and that's why you didn't get an oral hearing of your appeal, as I understand it.
MS DECOULOUS
Right. No, no, it says that, but it says that part 1 is over.
LORD JUSTICE LEVESON
Part 1 actually is over. All that is left of part 1 is the two features that I've identified. I've received closing submissions in relation to part 1 from the core participants, and there may be further submissions to come at the very end, because in relation to regulation -- I'm talking about Module 1 is over.
MS DECOULOUS
Exactly. The Court of Appeal said part 1.
LORD JUSTICE LEVESON
I think you'll find that that's an error. Module 1 is over. You were seeking from the Court of Appeal core participant status in relation to Module 1. That's what I refused, it's what the Divisional Court rejected your application in relation to, and it's what the Court of Appeal civil division dealt with.
MS DECOULOUS
Okay. Obviously you don't want to talk about that.
LORD JUSTICE LEVESON
No, I don't want to talk about it because it's simply not relevant. What I am keen to know is why you come within rule 5 in relation to Module 3 of part 1.
MS DECOULOUS
Okay, I just want to summarise from my letter, as Mr Sherborne did, just that in the Divisional Court judgment made on 4 November, Lord Justice Moses and Mr Justice Singh said in their judgment, paragraph 4, that "Ms Decoulos has a lot to say in matters of public concern, which are the subject matter of the Inquiry." Now, the rest of his judgment, he went against me, which I think is obviously contradictory, but I won't go into that because you don't want to go into the appeal process. Nevertheless, Lord Justice Moses saw I had at least 300 pages' worth of documentation that he read, or at least glanced through, and that was his judgment. So first, I'm coming on the basis of that, that I have a lot to contribute. I did have a lot to contribute in Module 1. I did have a lot to contribute in this module. As I said in my letter to you on Friday, when I went before the divisional court recently, I had 53 pages of correspondence with the Metropolitan Police, who failed to investigate my allegations about Mr Sherborne's clients, unfortunately, and I still submit I am being frozen out of this Inquiry because Mr Sherborne is sitting there.
LORD JUSTICE LEVESON
You're not being frozen out of the Inquiry because of Mr Sherborne. Indeed, Mr Sherborne didn't appear as counsel in relation to Module 2. So it's simply not the case. In relation to the observations made by Lord Justice Moses, I think he said, as I said, that you were perfectly entitled to submit a statement. You've explained that having delivered bundles in relation to judicial review proceedings, you've identified what you want to say. With great respect, that isn't a statement, and neither I nor the team that is assisting me can be expected to prepare a statement. That's why Lord Justice Moses made the point that he felt that there was material which you did have to submit, but you haven't done it.
MS DECOULOUS
Well, I haven't done it because I have to criticise quite a lot of people and apparently I can't. So am I going to spend hours -- and obviously I have written something -- that's going to be rejected? And then do I have to make an appeal to get my statement accepted? Which to me seems completely absurd.
LORD JUSTICE LEVESON
Right.
MS DECOULOUS
Because actually when I put forward questions in Module 1 -- and as you know, I put forward several questions for several of the witnesses because members of the public were allowed to do that even if they weren't core participants, and only one was asked. Shockingly, when I made an application for judicial review, I was told by your team that I needed to appeal that my questions weren't being asked. So I'm supposed to make a judicial review application to get my questions asked.
LORD JUSTICE LEVESON
There's no prospect of judicially reviewing the exercise of discretion of counsel to the Inquiry to ask questions. He asked the questions that he thinks are appropriate. That's my immediate reaction. I want to know why you come within Module 3 as a core participant and that's all I want to know.
MS DECOULOUS
I come here to apply under Module 3 because I submitted evidence to the Culture, Media and Sports Select Committee, which they accepted and they published. I said in that evidence, for their press standards inquiry, which has been discussed in this room for months now, that my hearings were stayed for costs -- sorry, my claims -- my libel claim was stayed for costs and they were in private. I thought this was shocking. I think I said it's reminiscent of a totalitarian state. It was just -- you know, this is England, or the United Kingdom. I just couldn't believe it. So I submitted that and nothing happened, and I wasn't in the report, but they did publish my evidence. Now, in the meantime, or just before that, rather, Associated Newspapers and Mr Sherborne together sought to stay my claim for costs, the rest of my claim, and again seeking to have it in private. And while they're doing this, Mr Dacre is lobbying Parliament to change the law on CFAs. He gave a speech to the Society of Editors, which everyone knows about, I'm sure, in November 2008, and it reads like a political thriller, really. He says -- I'm sorry, if I just get my ... (Pause) He says: "About 18 months ago [I remind you this is November 2008] I, Les Hinton of News International and Murdoch MacLennan of the Telegraph had dinner with the Prime Minister, Gordon Brown. On the agenda was our deep concern that the newspaper industry was facing a number of serious threats to its freedoms." First he mentions Freedom of Information Act, second, access to the courts, which -- I will just touch on that for a minute. He was worried about private inquests. And considering his legal team, which is a very aggressive legal team -- and this has not been discussed in this Inquiry either -- they were against private inquests, and at the moment, they're currently lobbying Parliament against private hearings under the justice and security green paper. Now, mind you, they're lobbying Parliament at the same time that they're consenting to me having a private hearing in my libel claims. This is hypocritical and it's not the first part of their lobbying that's hypocritical, but when they lobby Parliament, they bully them. It's a type of bullying -- I've never seen anything like it. They just bully. They bully Parliament, it seems. So at the moment, as I said, even though they succeeded in getting rid of the secret inquests, which actually he says in his speech -- he says: "Secondly, access to the courts and the very principle of open justice ..." Those are the words of Paul Dacre, and my libel claim against him is in private. He says: "Thirdly, there were very serious financial implications for newspapers of the conditional fee arrangement, the no win, no fee." So he goes on about this and he gives an example of an MP who sued for libel and he was only -- Martin Jones, he was only awarded £5,000, and their costs -- Associated's costs were £136,000, making a total of £520,000 in costs in a case that awarded damages of just £5,000. He has a point there, you know, a small amount of damages. Nevertheless, what has also not been discussed in this room is that Associated Newspapers, when they fight a libel claim, they nearly always lose. So it's their own fault if they have to pay these massive damage awards, because -- and I've sat in court quite a few times when they've had libel trials against other people, and it's just obvious they're going to lose. Why don't they just pull out, settle the case? Then they wouldn't have to pay these massive costs. But they don't.
LORD JUSTICE LEVESON
I'm struggling to see why this is sufficient to justify core participant status under rule 5 of the inquiries rules for you.
MS DECOULOUS
Because, if I take out rule 5 -- unfortunately, I have everything already photocopied: "The person played or may have played a direct and significant role in relation to matters which the Inquiry relates and the person has a significant interest." Now, considering they're lobbying Parliament on something that directly affects my ability to get redress in justice in this very building is relevant to Module 3.
LORD JUSTICE LEVESON
But, with respect, whatever they lobby Parliament for, whatever rights you presently have you won't lose.
MS DECOULOUS
Well, I've already lost. Stay for costs, in private.
LORD JUSTICE LEVESON
Yes, but then --
MS DECOULOUS
You know, unless I do numerous other hearings. You know, I am sick of having hearings in this building. You can imagine. I'm just at my wits' end and that's why I'm here. Why should I have to keep doing this? Everybody's here. This is costing a lot of money to set up this Inquiry. This is the time to sort out this mess. I will add that last week Lord Prescott proposed an amendment in the House of Lords to reverse what their lobbying intended to do and he failed, unfortunately. It was quite a sad day, I think. He's also a core participant so his amendment is actually relevant to my claims. And I should say that the only libel claim I won, against the Express, was under a CFA, and the previous arrangement of CFAs that Paul Dacre successfully got rid of wasn't even that good, because you know, I tried to get a CFA in my claim against Associated Newspapers but I couldn't get one. It's not as easy to find a solicitor to take your case on a CF
A. That is a myth that Paul Dacre convinced Parliament about.
LORD JUSTICE LEVESON
Well, the solicitor won't take it unless he thinks there's a good chance of it winning, will he? Because he has to work for nothing.
MS DECOULOUS
Not necessarily. Now, that's another myth. Because sometimes -- unfortunately, because I was also suing Mr Sherborne's clients, because one of them provided a defamatory -- a libellous quote to the Daily Mail, nobody really wanted to take on my case because of him.
LORD JUSTICE LEVESON
Well --
MS DECOULOUS
Nobody wants to take on some rich, powerful man in the city. That's where Mr Sherborne came in, and he actually colluded with the Daily Mail to stay my claim for costs and in private for the benefit of his clients, who actually I think I should name: Bruno Shroder and Suzanne von Maltzahn. My point is that the Daily Mail, not only are they very aggressive legally; they are in court more than any other newspaper group --
LORD JUSTICE LEVESON
You've made the point that you wanted to make about Associated Newspapers. Is there any other point you want to make about the politics element of this module?
MS DECOULOUS
Yes, it has to look at what happened to the CFAs, because this just happened last week. It's gone. And I should add that some of the core participants submitted a letter to David Cameron -- and actually I think I'm going to write my own, while I'm at it, if everyone else is going to write to him -- and published in the Guardian, full text of open letter on legal aid bill. They tried to convince David Cameron to drop the amendment that Lord Prescott proposed. It's not law yet, but it's nearly there.
LORD JUSTICE LEVESON
Well, I don't believe that CFAs are within my terms of reference. I have read my terms of reference quite carefully, and I'm not sure that I can cope with that area of law within the limits of what I am required to do.
MS DECOULOUS
Right, okay. I do want to say one more thing about the Daily Mail and Paul Dacre's evidence.
LORD JUSTICE LEVESON
No, no, no, Ms Decoulos, I think that's probably enough. I'm only asking you to make submissions about why you come within rule 5 for Module 3. I don't think that it's appropriate that you use the opportunity to rehearse your complaints about newspapers.
MS DECOULOUS
Okay, I just did want to say something about the private hearings, though, because that is also relevant. This Inquiry is looking at privacy, and obviously privacy is under Article 8, but privacy and libel are merging, as people who submitted evidence to the joint committee on the draft defamation bill will know. So it's very difficult, when you come to Module 4, to look at the way forward without looking at the whole picture.
LORD JUSTICE LEVESON
But the way forward in relation to Module 4 is essentially -- not necessarily entirely, but essentially -- concerned with regulation.
MS DECOULOUS
But regulation and the draft defamation bill are going -- people -- most people in this room -- well, the people campaigning want them to be together, and there is a big argument about public interest and what's in the public interest. Should there be a definition? At the moment, the draft defamation bill and the joint committee did not propose a definition. They did not think it was necessary for public interest -- for a definition of public interest, as did the privacy and injunctions committee. However, the proposals being put forward to you include a definition.
LORD JUSTICE LEVESON
All right.
MS DECOULOUS
And I submit there needs to be a definition.
LORD JUSTICE LEVESON
All right. Thank you very much. Thank you. Right, the next application I have is from Mr Ward. I only ask you to come here again, Mr Ward, because then it's picked up on the microphone. Please sit down. Right. The difficulty which was apparent in relation to your earlier application was the complexity of the issue. You will appreciate the time available to me, the ground that I have to cover and the effective impossibility of being able to unpick extremely complex and fact-sensitive allegations so as to provide assistance for the general area that I have to consider. I'd be grateful if you could tell me why you feel you fall within rule 5 of the Inquiry rules in relation to what is a very different issue, namely the politicians. I know that you've identified the fact that you've tried, through various political avenues, to have your concerns addressed, but again, without unpicking all the facts, it's very difficult to do other than the most general analysis of what the relationship should be, which may not require me to investigate the sort of detail that I think you would require me to look at. So there it is --
MR WARD
Thank you very much indeed. As you know, your Honour, I feel and have felt that I have useful and insightful experience that would have lent itself to modules 1 and 2, but I fully understand and respect that the opinion of the Inquiry was that it was excessively complicated.
LORD JUSTICE LEVESON
I don't think you would disagree that it's complicated.
MR WARD
Whether I do or not is probably something that is not necessarily investigated.
LORD JUSTICE LEVESON
All right.
MR WARD
But I do utterly understand. You have a limited time, you have a limited budget, you need to move on with the Inquiry. So the question I would understand you're asking me now is: what is it about Module 3, which is a different module, that looks at the influence, if any, that the press has imposed on politicians, that may be of help to you, in the first instance, and secondly, qualify me for CP status? What I think must be obvious to all of us is that whatever our problems in life, whether it be matters of complaint about unfair convictions or one has been, in one's view, molested or harassed by a newspaper or indeed probably any other matter, in the end, under our democratic system, we find ourselves, once all other remedies are exhausted, including the courts, in front of a politician. One looks to a politician for two essential things: one is perhaps an intervention on a particular issue, and secondly, to try and ascertain whether the politician could be moved to investigate matters of policy, because at the end of the day, politicians and only politicians are at the summit of power, because they pass law. Therefore, this module is extremely important because it deals with the ultimate place of power, and what, if anything, the press has done or not done to distort what might otherwise be described as a proper democratic process. Now, my understanding of Module 3 is that you are looking at the way in which the press has or has not influenced, beneficially or with malign intent, politicians, and secondly, to investigate what warnings people have given politicians or serving ministers about those same practices. Obviously one of the ways you can do that, which is perfectly sensible, is to get the information and the evidence of politicians who have, in one form or another, found themselves harassed or intimidated or in some way or other negatively affected by the press. However, politicians, as much as we may admire them or otherwise in some cases, perhaps, are themselves coming to this particular module with a purpose in mind, with a focus in mind, which is to give honest account of how particular newspapers have lobbied them or have intimidated them and so on, and that is a very natural and healthy process for this Inquiry to investigate. They may, either for malign intent, or more likely, because they haven't really thought about it, not been able to give your Inquiry chapter and verse of how they have let themselves down as a consequence of the intrusion into their lives of the press. They will probably say -- and I've heard it said -- "Well, I wasn't in any way affected by this and I got on with my job", and that is a natural reaction. You ask what I can bring to bear. Over 20 years, leaving aside any complaints I made to the police and various other people concerned with my complaints, I also appealed to politicians. I visited politicians. I went to their offices with documents. I went to cabinet ministers with documents. I went to a whole range of politicians of different stripe and with different interest and responsibilities. Prior to doing so, over many years, I had experience of dealing with politicians. When I was an investment banking banker, I dealt a lot with politicians on matters of international trade and policies of this kind, and although from time to time, one recognised that a particular issue was complicated, nevertheless the politicians seem open and willing and generally constructive to look at any matter you may be raising. However, there was an absolutely unambiguous line of yellow eyes, of eyes turning to the ceiling, when I raised matters with politicians about the media. It is absolutely incomparably different. Every other case in my life, when I have gone to a politician for one reason or another -- as you will know, I ran an entertainments company. I was often talking to politicians about policy, licensing, drugs. I always found politicians open and willing to engage on a particular subject. So the experience I bring to this Inquiry is absolute direct experience, over 20 years, of the way politicians have in fact reacted to issues that come to them about the press, and the perception -- the actuality of them saying, "Well, they're a force outside our capacity", and clearly a sense of unease that they had no vires or no powers or there was too much risk associated. I should just tell you, your Honour, that in the course of this 20-year campaign, or that process, I spoke to politicians who told me of the close links between one political party and a particular newspaper, and one politician, a House of Lords member, actually told me: "Well, we might be able to help because we have special friends in that newspaper." Now, as it turned out, he wasn't able to help, very possibly because someone up the line felt that newspaper didn't want to be embarrassed --
LORD JUSTICE LEVESON
I understand the point you've made, and there may be something worthwhile considering in the context of a different reaction to complaints about the press than complaints about other areas of public life. Your statement, which you provided, touches on what you've done there, but actually is in the main about other matters --
MR WARD
Sure.
LORD JUSTICE LEVESON
I'd be grateful if you could address why that issue should not be capable of being explained by you as a witness, as opposed to being a core participant. I'm not saying I would want to see it, but it strikes me that what you've said -- I see the point and I see the thrust of what you're saying, but my immediate reaction is that this doesn't justify core participant status. It may justify considering what you have to say as a witness.
MR WARD
Well, I do understand, and indeed you may, having read my statement, see that in, I think, paragraph 2 or 3, I'm making myself available as a witness. But the reality is that rule 5 sets out a number of qualifications for admission as a CP. I believe I have a direct experience and I think I have a great interest in the outcome, and although in no sense at all am I seeking to bring into this Inquiry some sort of who did what to whom or who is right and who is wrong -- that is not why I'm here, I fully respect the limitations of your Inquiry -- I think I should have a degree of status, similarity of status, to give me the authority to give vent to my experience. I mean, witnesses come in all shapes and sizes across a lot of subjects. Whether your Inquiry can ever be informed to the degree that I can bring to bear about the experience of working with politicians, complaining to politicians, I doubt. You'd know more than I.
LORD JUSTICE LEVESON
All right.
MR WARD
But I believe I have a very special experience that qualifies me for that, and sure, I have an interest in the outcome. I'd like to see, in some respects relating to me but most particularly to the nation, that the press is made to explain why it had certain experiences of interventions with the politicians, and in particular, why politicians didn't act. I mean, I have letters to Attorney Generals, to Home Secretaries, about specific aspects of the truancy, as I allege it, carried out. Those all went into the wastepaper basket. I do think that it is instructive to you. So that would be my submission. I think I merit that status because I have a bundle full of information not shared by others and I think I'd like to have that status. I think I would like to have it. I think I deserve it.
LORD JUSTICE LEVESON
Thank you very much indeed.
MR WARD
Thank you very much indeed.
LORD JUSTICE LEVESON
All right. Mr Parkinson?
MR PARKINSON
Sir, yes. I'm making a further application on behalf of Mrs Brooks. Sir, you recall that she did make an application for core participant status last September --
LORD JUSTICE LEVESON
Yes, I remember, and of course, in the main -- and I'm conscious of the concern that your firm have expressed on a number of occasions during the course of the Inquiry about the extent to which her name has been mentioned, although, as I'm sure you appreciate, she hasn't been asked in any way to provide any evidence on those matters in respect of which there is an ongoing investigation. I do see that this module is different, but I'd like you just shortly to elaborate and to identify precisely what it is you seek, because it seems to me that in respect of contemporary political issues, there may be something more than evidence that she can bring to the Inquiry, but I don't think she does that for anything other than contemporary political issues. So I'd just be grateful if you would expand on how you see the application being put and how you see your involvement, if I were to grant core participant status to Ms Brooks, evidencing itself.
MR PARKINSON
Certainly, sir. I put my application on two bases. My primary ground is under rule 5(2)(c), on the basis that Mrs Brooks is someone who may be the subject of explicit and significant criticism. My secondary ground is under 5(2)(a), that she has a direct and significant role. If I can deal first with 5(2)(c), sir. She has been the subject of criticism of that nature. When you declined her application last September, you did raise the possibility that further applications might be made.
LORD JUSTICE LEVESON
Yes.
MR PARKINSON
And you specifically referred to the possibility that she might be subject to criticism. We say that has happened in respect of a number of witnesses -- I can go into it if you'd like me to --
LORD JUSTICE LEVESON
No, I understand the point, which is why I said what I said, but that isn't a justification on itself for granting core participant status for the next module, really, is it?
MR PARKINSON
I completely agree, sir. All I would say is that it does provide some indication that she may be subject to similar criticism going forward. As you know, sir, for Module 3, she has been invited by the Inquiry to give evidence --
LORD JUSTICE LEVESON
Certainly.
MR PARKINSON
Both written evidence and oral evidence.
LORD JUSTICE LEVESON
Certainly.
MR PARKINSON
And I anticipate also that a number of witnesses will be giving evidence which refers to her. So it does seem likely that with regard to Module 3 at least, she will have a much greater role than in previous modules.
LORD JUSTICE LEVESON
Yes, that might bring her rather fairly and squarely within 5(2)(a).
MR PARKINSON
Certainly, sir. That's the second basis on which I put my application. She has been asked by the Inquiry to give evidence on a wide range of issues which are within Module 3, and I say that certainly does bring her within 5(2)(a). But I also say, on the basis of her experience of modules 1 and 2, that that exposes her to the possibility of criticism by others -- we know that such criticism has been made of her in the past -- and that therefore she is one of those people for whom the protections of 5(2)(c) were designed. So I put my application on both bases, sir, but of course either would be sufficient.
LORD JUSTICE LEVESON
Yes. Obviously there's a discretionary element to it as well. What role do you see you or her playing, if I were to grant this application? Because it is, as I think I tried to explain, time-limited, isn't it? I mean, in the sense of the story.
MR PARKINSON
Absolutely, sir. In fact, if you were to grant her that status, she would exercise it sparingly. The main reason we seek the status is to enable her to have advance notice of the evidence given by other witnesses, which in turn would enable her to have the opportunity to pose questions to the counsel to the Inquiry or under Rule 10. When she gives evidence herself, we hope her counsel will be here to provide her with assistance --
LORD JUSTICE LEVESON
Counsel can be here anyway, because as a witness she's entitled to have legal representation.
MR PARKINSON
Absolutely, sir, but I know that time is limited for the Inquiry, space in this room is limited, and we wouldn't intend, in fact, to attend by counsel every day.
LORD JUSTICE LEVESON
Don't worry about space. If you are justified for status, then the space is the last of my concerns.
MR PARKINSON
Thank you, sir, but it is right to say that the primary way in which we would use that status is in terms of having advance notification of issues and the opportunity to raise points before evidence is given by others.
LORD JUSTICE LEVESON
All right. Thank you very much.
MR PARKINSON
Thank you.
LORD JUSTICE LEVESON
Is there anybody else who wants to apply for core participant status who I've missed out? Mr Jay, is there anything you want to say about any of the applications that I've received? I will reserve judgment. I won't give it this afternoon.
MR JAY
Sir, no.
LORD JUSTICE LEVESON
But I will reserve it only for a very short period of time. Right, thank you very much. I'll provide a decision in writing in the course, I hope, of the next few days. I would certainly want to try and get it out before Easter. Yes, Mr Ward?
MR WARD
Could I raise just one point. You made a point that my witness statement had not perhaps gone into great detail about Module 3. Of course I can append that and add additional --
LORD JUSTICE LEVESON
I understand.
MR WARD
I want to apologise for the fact that it wasn't entirely concentrated, but there is a great deal of additional material.
LORD JUSTICE LEVESON
All right, thank you.
MS DECOULOUS
What's going to happen in Module 4?
LORD JUSTICE LEVESON
Module 4 is to do with the future. As we go through the afternoon, we will discuss the approach to Module 3 and the approach to Module 4, and the timetable, so that it will all become clear. Right. I think that takes me to an approach to Module 3, which I intend should follow the same pattern that we have adopted hitherto. We will not start the political end of this module before the elections in early May, so we will then proceed to hear this evidence up to the end of June, and I'll come to the timetable in a moment. The next aspect of Module 3, which will undeniably address the political perspectives of the terms of reference, is to consider the benefit we might receive from commentators. I apprehend that we're likely, because of time shortages, in the main, to seek statements and then to read them into the Inquiry, but I will want any submissions on that as appropriate as to whether that's acceptable. The third point that I want to make about Module 3 is lines of questioning. It may be that the system has put statements up for core participants to see rather later than we would have wished, and sometimes with very little notice at all. However much advance notice has been given, however -- and in some cases it has been considerable -- lines of questioning tend to have been provided to counsel on the night before or the morning of -- and that's sometimes 2, 3 and 4 o'clock in the morning -- the day on which the witness coming to give evidence. Sometimes that's been possible to deal with, but in the rather more sophisticated range of issues that Module 3 generates, it is going to be absolutely vital that sufficient advance notice of lines of questioning, which may themselves involve reference to documents, is provided to Mr Jay so that he can assimilate them and consider their value. I would very much like to say that we'd like notice of some seven days. However, I recognise that that requires the statements to be online very much in advance of that seven-day period, but I think that what we will do is, in relation to each statement, we will mark it with a date upon which we would like any lines of questioning to be provided. I'm not saying there's a cut-off because there never can be, but I am seeking to ensure that the preparation for these witnesses is as comprehensive and as timely as possible. Mr Jay, do you want to say anything about that?
MR JAY
No.
LORD JUSTICE LEVESON
Right. The approach to Module 4. Essentially, I apprehend there will be little evidence in Module 4. There may be a question -- "What is ethical journalism?" -- asked and addressed, and the only other evidence is likely to be the suggested regulatory models. That that's from the press and from others. The Inquiry has received a number of submissions as to possible regulatory models and those are what we shall address during the course of Module 4, which will inevitably be very much shorter than any of the other modules. So that brings me to the timetable for the Inquiry. During the week commencing 23 April, I apprehend that we will be calling some proprietors or media owners and other evidence crossing modules. So we won't be sitting the week of the 16th; we'll sit next on the week of the 23rd. We'll then, I'm afraid, have another week off, because I won't start Module 3 until after the elections. In the week commencing 8 May, we'll have further proprietors, we'll have catch-up evidence and we'll start Module 3. By "catch-up evidence", I mean evidence that I have not yet received but have been waiting to resolve. I have already mentioned that it is during that week that I will deal with the outstanding issues in relation to Milly Dowler's mobile phone. It's that week that I will consider again operations Glade and Reproof, and there will be some other witnesses who cross or potentially cross different areas, or more conveniently can be taken at that stage, whose names will be identified in the usual way. We'll also have the opening for Module 3, which raises the next question. Although Mr Jay will doubtless open Module 3 with customary brevity and depth, does anybody else wish to open Module 3? Well, that's interesting. I don't commit you to an answer to that now, but if you do, I would like to know in due course. Of course, it depends entirely on who's granted core participant status. Module 3 will go to the end of June 2012. Module 4 will be commenced in early July, and during the course of July, we also hear any closing oral submissions. The idea is to finish the formal part of the Inquiry by the end of July; in other words, before the anniversary of the date of the appointment of this Inquiry. Which brings me to the timetable for submissions. By the end of April, I'd be grateful if I could receive submissions in relation to Module 2 and anything that I have not already received in relation to Module 1. That is, of course, an end date, not the date by which I wish to receive those submissions, because I can't start analysing the module until I've seen all the relevant submissions. Any opening submissions in writing for Module 3 I'd be grateful to receive before 8 May, and by the end of May, it seems to me that there are a number of submissions which will remain outstanding which would be of value. First of all, the standard of proof, which we raised at the very beginning of this Inquiry and put off. Second, given the terms of reference specifically include cross-media ownership, any submissions on competition law. Third, any preliminary submissions on regulation. I say "preliminary" because they'll all obviously be subject to what I hear in Module 4, but I've no doubt at all that everybody who's been concerned in this Inquiry has been thinking most anxiously about what the future should look like. Is there any other topic that any core participant feels needs to be addressed? Because if there is, I will want a timetable for that, too. (Pause) Then, by 17 July, final written submissions, with possible short oral submissions in the week commencing 23 July. I'm not suggesting that anybody will necessarily feel it appropriate to make oral submissions in addition to making submissions in writing. The submissions in writing will be published on the website, so they won't be in secret, and we can revisit that as we proceed through the summer. Does anybody want to say anything else about the approach or the timetable? (Pause) Right. The final item for discussion this afternoon concerns the three topics I raised some little time ago which have been the subject of written submissions surrounding Rule 13. I'm very grateful to all those who have provided written submissions, and don't consider it a discourtesy in relation to those who haven't provided written submissions. There are a couple of issues that I would like to raise based on the submissions and we'll start that now, but before we do, I think it's probably appropriate to give the shorthand writer a short break and allow people the opportunity to think about whether there's anything I've missed out, and equally, if they want it leave because they're not interested in this rather interesting area of Rule 13. So I'll rise for just a few minutes. (3.15 pm) (A short break) (3.21 pm)
LORD JUSTICE LEVESON
Right. Does anybody want to raise anything in relation to any of the topics that I've mentioned to date? (Pause) Right. Well, the two substantive issues upon which I sought assistance concerned the effect of rejecting evidence and whether that offended the self-denying ordinance, and what Rule 13 meant in the context of the press as a whole. In other words, if I take the view that there is something in the culture, practices or ethics of the press or a section of the press, does that generate a requirement under Rule 13 to give notice? So if we split those two issues up -- the third question was what was meant by a "person". I'm quite comfortable that "person" certainly incorporates a company, court or unincorporate association, but I ought to ask anybody if they want to press submissions that "person" can mean title, whatever the structure of the title, whether it's simply part of a larger company or without independent status. So, who would like to start on any of those? Mr White?
MR WHITE
I'm happy to start, sir. On the first question, the self-denying ordinance, News International's consistent position has been to pay heed to your mantra, as you've called it, that you're not going to make findings about who did what to whom, but importantly, you added on several occasions "or with whose knowledge". We submit that that mantra has been sensible. It's helped us to proceed expeditiously with the evidence because we haven't challenged the detail.
LORD JUSTICE LEVESON
Yes.
MR WHITE
Our first submission is that it would be fundamentally unfair to depart from that mantra at this stage in the proceedings, when witnesses have come and gone and we've understood them to come and go on that basis.
LORD JUSTICE LEVESON
Yes, I have no problem about following the mantra, but the issue that I am concerned to think about is slightly different. It's not so much "Did X intercept a mobile telephone?", which would be clearly who did what to whom. Neither is it "Did Y, a supervisor, instruct X to intercept a telephone?" Similar. It is not even "Did Y, the supervisor, know perfectly well that all sorts of stories going into his or her title were the product of intercept?" But it could very well be: it was well-known that stories were being obtained as a result of intercept, whether or not they were responsible personally for the intercept or whether or not they had authorised it or it was in their title. You can think, without my giving of the example, of at least three witnesses who have made it clear that they referred in public to this having happened. Each in their turn gave a slightly different explanation when they came to give evidence. One of them, if not two of them, spoke about rumour. One of them most certainly called it topspin. Now, it strikes me that if I am to make findings about the custom, practices and ethics of the press, I have to say and I have to reach a conclusion whether or not I consider that the evidence has revealed that this practice was rather more widely known than some people have suggested. Now, that might generate a Rule 13 warning to them but I don't think that offends who did what to whom, and that's the issue that I would like you to address.
MR WHITE
Our concern, I would suggest, is heightened by putting it that way, particularly when you draw my attention to three witnesses whose identity I might like to think about, and our concern would be that before you could make a finding that someone knew something was widespread, you'd have to make a finding that it was widespread, and you'd have to do that on the basis of separate findings making up that widespread practice, and we simply haven't explored that. In the case of one witness with whom I'm particularly concerned, a finding of knowledge of a widespread practice without descending to an attempt to establish particular instances, with full cross-examination and full documentary surround, in our submission would be dangerous. We certainly didn't realise when the witness I have in mind came to give that evidence that this was on the agenda.
LORD JUSTICE LEVESON
Without necessarily using the word "widespread", why isn't it relevant to the custom, practice and ethics of the press that people within the press know that it is happening? And if I'm not to make that sort of finding, what am I supposed to be doing with all this material?
MR WHITE
Well, what we understood you were not going to do was make findings about individuals' roles in relation to it, and that is our concern, that if you don't make findings about individuals doing it, to make findings about other individuals knowing about it having been done lacks an essential building block.
LORD JUSTICE LEVESON
Well, does it? I can make a finding of fact that X was happening, without making a finding of fact, not having investigated, who was responsible for X happening and without making a finding -- because I've not been able to investigate it for reasons which you very clearly understand -- as to the origin of the instruction, if there was one, for X to happen. Now, I've not gone there and I'm not going to go there, for obvious reasons, but I've certainly got to make a finding, haven't I -- or do you say I haven't -- about whether there was unlawful interception of mobile telephones?
MR WHITE
The word "happening", absent the additional words "where and when" would be meaningless, and we haven't investigated whether it was happening where and when.
LORD JUSTICE LEVESON
Why would they be meaningless?
MR WHITE
It would be meaningless in terms of attaching knowledge to people, because you wouldn't know where they were at the particular location --
LORD JUSTICE LEVESON
I'm not seeking to establish knowledge of any particular interception. I'm seeking to use their -- this is the issue: I'm seeking to use their acknowledgment of knowledge and to say that that itself is relevant to the extent of the practice. At least that's what I'm considering.
MR WHITE
As we've said in our submission, if there was an admission, then we could see you could do that, but we don't understand, particular with the witness that I have in mind, there to be any admission of a practice occurring at any title at any point in time. Indeed, a denial.
LORD JUSTICE LEVESON
Yes, I understand that, but there is undeniably evidence from which I can infer the existence of the practice. Would you agree with that?
MR WHITE
You know what public statements have been made in relation to one title.
LORD JUSTICE LEVESON
Yes, absolutely right, and I have received evidence -- I have to decide what I make of it -- from different people speaking of the same practice, from more than one person speaking of the same practice, and I have received evidence of people being prepared to write about the practice, albeit that their writings are now explained by their evidence, and I might have to make a decision about what I think of their present explanations.
MR WHITE
The latter example relates to the title that we know about. Our particular concern is that a finding of a general practice applying across the press, in the absence of exploration of whether it actually happened at any particular time --
LORD JUSTICE LEVESON
When did I say it had to be across the press? I was rather careful to say that it was within a section of the press. I mean, I've seen everybody's submissions on Module 1, and there is a plethora of: "Absolutely not me, guv", and: "There's nothing on my title." That's a submission that's entirely legitimate, I accept it, but it doesn't actually address the issue that I have to address in my terms of reference, namely: what was the culture, practice and ethics? Now, it doesn't have to be everybody and I don't think anybody is likely to argue that I shouldn't exclude all regional titles, because nobody's suggested anything at all about a regional title. I'm just speaking entirely hypothetically and I say that because those who watch this exchange, if anybody's sufficiently interested to watch it, ought to know that this dialogue, which is very common between bench and bar --
MR WHITE
Absolutely.
LORD JUSTICE LEVESON
-- proceeds upon hypothesis. I haven't made findings as yet. I am merely exploring what I can do and what I should do, in advance, in fairness, if I am minded to proceed in a certain direction. So I clarify, with some degree of care, what I am saying and nobody should misunderstand. I've not made findings of fact against anybody yet. I've a long way to go. But I'm investigating the precautionary steps I have to take. I know you know that, but those who watch this may not. So that's the issue. I'm not talking about "the press", but equally I can't say, "Well, I am sure it's not this paper, I'm not so sure about that one, and I'm sure it's this one", because that is likely to offend my mantra.
MR WHITE
I would so submit.
LORD JUSTICE LEVESON
Yes, well, I understand that. But if I'm to make any sense at all of the terms of reference, then it seems to me I am going to have to condescend into some finding about whether there's anything to worry about. Let me put it that way. I've used the example of intercepting phone messages. I could talk about blagging. I could talk about any of the other complaints that have been made by the various witnesses. Perhaps talking about some other complaint is less offensive, because of course they're not necessarily criminal, but unless I can identify a concern as part of the narrative to justify a regulatory change, then I am not addressing, it seems to me, the terms of reference which I've been required to do.
MR WHITE
I don't want to have more than my share of the time, but in my submission, there may be a proper line to be navigated between a concern and a finding of fact, in the sense that the evidence you received about a practice within at least one title might properly give rise to a concern about whether, in reality, it was so confined. That would be different to a finding that it was more widespread.
LORD JUSTICE LEVESON
Actually, what you've just talked yourself into it talking about the standard of proof, which is actually something we talked about at the very beginning. Is it sufficient if I take the view there is a real risk that a particular practice has extended, or a possibility? One can use different words. If you're saying to me that that is sufficient, that it doesn't offend my mantra and is sufficient to deal with my terms of reference and couldn't be the subject of legitimate complaint, well, then, I'd be very interested to hear that.
MR WHITE
I'll reflect on whether or not I'm putting my foot in an elephant trap.
LORD JUSTICE LEVESON
I thought you might want to say that. I don't think it's an elephant trap, but I do think it is very important.
MR WHITE
Having sat here and heard a lot of the evidence, I can see that that is a very real matter for debate, the dividing line I've just formulated.
LORD JUSTICE LEVESON
All right.
MR WHITE
Shall I say something about the other two matters?
LORD JUSTICE LEVESON
By all means.
MR WHITE
The title point. We're looking, on our side, for a practical solution with sufficient granularity. News International had, at the material time, two subsidiaries. Each published two titles. What we're concerned about is not to have a system, either under Rule 13 or at later stages, which doesn't sufficiently differentiate the titles and whatever practices and cultures they may have been engaged in. They're run editorially on an entirely different bases.
LORD JUSTICE LEVESON
I know, and that's been part of my problem. There is undeniably a difference between the News of the World and the Sun, but to start -- I mean, I think the line I have taken is I've been prepared to allow the News of the World to be identified, not least to protect others. To say it's "a title" and then --
MR WHITE
We understand that.
LORD JUSTICE LEVESON
Yes, and I apprehend that that's the same model I would follow, which therefore would distinguish your other title. I think I'd be rather keen not to try otherwise to condescend to individual titles.
MR WHITE
Yes.
LORD JUSTICE LEVESON
Not least because somebody suggested I should be writing to editors as well, and then I have to be careful about when the editorial chair changed. I can tie myself up for months trying to sort all the permutations and combinations out, and I have no intention of doing that.
MR WHITE
To be entirely practical, what we have in mind is that the dividing line would lie between simply naming NGN, which published both the Sun and the News of the World, as opposed to naming NGN as the publisher of the News of the World in relation to particular criticisms. We don't want spillover into a separate title where it's not justified.
LORD JUSTICE LEVESON
I understand that.
MR WHITE
Finally on the application of Rule 13 to the press as a whole or a section of it, you've seen what we say in writing. The problem here is really the small class. Particularly if you were to identify, as an exchange between us a moment ago suggested might be in your mind, for example, the tabloid press as a recipient of a particular criticism. There are so few tabloid press publishers that not to send --
LORD JUSTICE LEVESON
I understand the point, and I am going to suggest another alternative for you to consider, which I have been identifying. Let me make it clear that I am very keen indeed to ensure that everybody has the opportunity to make whatever submissions they want to make about whatever potential concerns I might wish to express. My media reaction was -- and indeed it's consistent with Mr Sherborne's submission -- that the press does not constitute a person and is generic, but I have an alternative, and the reason that I am keen to resolve all this now is because if somebody wants to challenge what I want to do, then they can get on and do it.
MR WHITE
Absolutely.
LORD JUSTICE LEVESON
Rather than wait until I've produced a document and then have everybody jump up and down about it. The other possibility is this: that I accept the broad thrust of the press that there are so few potential titles that on the class libel point that Mr Caplan made before Lord Justice Toulson in the Divisional Court, I ought to address the issue differently. One possibility is this: that I identify all the possible criticisms I could make of the press, with the evidential support, and ask everybody to deal with the potential criticism. And so there's no mistake about it, obviously, if I take my earlier example, if I were going to criticise an individual, then that would be separate. So I'm not talking about that; I'm talking about the generic criticisms, and I say I prepare a document that copes with one of the submissions that I receive, namely: "Well, we may think of most of the things you could criticise, but you may think of something we've not thought of."
MR WHITE
Yes.
LORD JUSTICE LEVESON
I'd be amazed if that were the case, but I recognise the possibility. So what I should do is create a document that lists all the areas of potential criticism of the press, without seeking to distinguish, although I suppose in the evidential material, which would be cross-referenced to the transcript, somebody would be able to say, "Actually, he was talking about my paper or somebody else's paper." Whatever. I'm not going to go there, because that would offend my mantra, and I say: "Right, these are all the potential criticisms, generally, where there is either a criticism or a risk that this has gone beyond it", if I adopt your earlier line -- and it's an interesting postulate -- so that you can address that concern. What I would want, of course, then is not: the Times says about the Times that none of these apply to them, the Sunday Times says about the Sunday Times that none of them apply to them, whatever, because I'm not asking for people to comment upon their own position; I'm asking for submissions about whether I am entitled to reach that conclusion, that either it is a legitimate criticism or the risk of a criticism, to follow the other suggestion, of a section of the press. Now, no submission yet received, save for Mr Sherborne's, which is for different reasons, has sought to go beyond their own position. I understand that. It's entirely justifiable that you should make submissions on credibility and on Module 1 based upon the position of your titles. They're your clients. But actually, to help me, which I think I'm entitled to ask, I need to know what you say about the broader issue that I have to address. Now, that's another way of doing it.
MR WHITE
One immediate concern we would have, the Rule 13 letters are confidential under the rules.
LORD JUSTICE LEVESON
Yes.
MR WHITE
So one would want it kept to the press core participants, this --
LORD JUSTICE LEVESON
Of course. Actually, the real question is whether they're limited to core participants, because I'd have to decide -- there is one national title that is not a core participant, and I'd have to decide whether to give that national title the opportunity to respond. I think I'd be pretty shirty if I got asked to call all sorts of evidence again, but that's a different point. That's something to consider, but of course it would be confidential. It goes without saying that approaching the problem in this way, which then satisfies your concern about the press, means that the press would understand that this is a concern I'm expressing about the press, and I want responses about the press, which might mean that titles that have the least to concern themselves with actually have to address my terms of reference and reflect upon the body of the evidence which I have received, to decide what is the submission they wish to make.
MR WHITE
It certainly meets our concern, which is to have an opportunity to respond on anything which might be damning of press as a class. I see that in a sense we've moved together. May I reflect on whether it meets all my concerns?
LORD JUSTICE LEVESON
You may indeed.
MR WHITE
Thank you very much.
LORD JUSTICE LEVESON
You may indeed. Right, Mr Browne?
MR BROWNE
Sir, my starting point is the ambit of the Inquiry, because it's from that and from your terms of reference that the self-denying ordinance that you've described seems to flow. We've addressed this in our submissions, which I'm not going to repeat -- I know you'll have read them -- in paragraphs 20 onwards, focusing on, if you like, the straitjacket imposed by the terms of reference and section 5(v) of the Inquiries Act. The matter that concerned us was what you said on 12 March, when, in the context of warning letters under Rule 13, you said that the report must not include any explicit or significant criticism of a person unless they've been given a reasonable opportunity to respond. A little later, you said in another context that you were presently minded to the view that it didn't prevent you, the ongoing police investigation, from criticising an individual whom you did not suggest had actually participated in illegal conduct. My submission is really this --
LORD JUSTICE LEVESON
It's rather different, isn't it? What I was saying was that if I am not going to criticise those who are the subject of present criminal investigation, it seemed unfair to say, well, because X is not presently the subject or, in my judgment, foreseebly the subject of criminal investigation for hacking into phones or whatever, that they can be the subject of criticism when somebody who may -- whose conduct may or may not be more egregious cannot.
MR BROWNE
I see that, and of course, the question of the pending police investigation is very important and you will have been assisted by the submissions from Mr Garnham and Ms Michalos. But can I come back to that point in just a moment. The point I'm making for the moment is more fundamental, and it is really this: that the indication that you might serve Rule 13 notices because you were minded to make explicit or significant criticism of a person falls foul of your own self-denying ordinance.
LORD JUSTICE LEVESON
It depends what the criticism is.
MR BROWNE
If it's criticism of an individual, it is going to fall foul of such statements as we set out in paragraph 25(a) of our skeleton argument. You recall that right from the start you said that the Inquiry was not concerned with the apportionment of personal or corporate responsibility.
LORD JUSTICE LEVESON
That's true.
MR BROWNE
On 7 November -- this is 25(b) of our skeleton argument -- you said the questions of individual responsibility clearly fall within part 2. There are many other quotations that have been assembled by Mr White and his team -- you will find them in paragraph 3.2 of their submissions -- but you have the point, I think, which is simply this: that individual criticism, the impugning of responsibility for any act by any individual or identified group, would seem to fall foul of the self-denying ordinance, and the self-denying ordinance was a necessary concomitant of the way in which your terms of reference were drafted.
LORD JUSTICE LEVESON
In relation to the conduct of the business of newspapers, that may be right, but it may not be right if I reject the evidence of witnesses who have given evidence to the Inquiry.
MR BROWNE
Well, the rejection of evidence given to the Inquiry would seem to go hand in hand with a finding that there was misconduct by individuals or specific groups and that the denials of knowledge were found by you to be false.
LORD JUSTICE LEVESON
It depends what they've denied. It depends what the subject matter is. Let me give you an example. I have to be careful. (Pause) Assume that I was to find that that the one rogue reporter defence was not merely wrong, but by senior personnel was known to be wrong. I'm not saying I will; I'm merely asking the question. Now, that doesn't implicate somebody who allowed that account to proliferate in the initial wrong. In other words, that doesn't mean to say for a moment that the person who allowed that line to continue to run knew at the time or was party at the time to any illegal conduct.
MR BROWNE
Well, that --
LORD JUSTICE LEVESON
But I would have to alert that person, if I reach that conclusion, to the risk that I might make that finding, and I don't believe that finding would offend my self-denying ordinance.
MR BROWNE
That, I fear, is where you and I part company, but I think you have my submission, which is that the self-denying ordinance naturally follows from the fact that the terms of reference, being into the culture, practices and ethics of the press, necessarily means that you have to operate at a high level of generality.
LORD JUSTICE LEVESON
I agree with that.
MR BROWNE
Can I just give an example? You'll recall the last time that I was here, on 20 March, you and I had a discussion -- you stopped me making what you called a speech about the --
LORD JUSTICE LEVESON
But it was a speech, Mr Browne.
MR BROWNE
No, it hadn't even begun.
LORD JUSTICE LEVESON
I think it had, but never mind, and I let you make it in the end anyway.
MR BROWNE
Well, I'm not easy to stop. The point was this: you'll recall that what I was seeking to demonstrate was that the evidence of a Mr Harrison that the Sunday Mirror had employed a surveillance team of ex-special forces operators to follow the initial suspect in the Ipswich murder case was plainly wrong, and that it could have been discovered to be wrong by the simple expedient of the Inquiry team getting hold of the Sunday Mirror, which recorded what had happened at the interview. You sought first of all to shut me up and then to console me by saying that you were looking at the entire area at a high level and not wishing to condescend to detailed analysis. It's natural that you should be conscious the whole time of the need to finish this Inquiry before Doomsday, but nonetheless, that exchange gave us the assurance that we were looking for that this was going to be, as I say, conducted at a high level of generality without condescending to detailed analysis. The disavowal of detailed analysis goes hand in hand with the non-adversarial nature of this Inquiry, which means that allegations have not necessarily been put to witnesses who may subsequently be the subject of criticism. Nor have counsel, heeding the need to finish within the year, challenged the detail. You'll recall that some time ago Mr Sherborne tried to take the point against me that I had not challenged some particular evidence given by one of his clients and sought to invite you to draw an inference from that, and you rightly had no truck with that submission and pointed out that it might have been a good submission in adversarial litigation but it cut no ice in inquisitorial. Can I move on and direct the issue which I think Mr White hasn't really touched on, which is the question of active participation as against mere knowledge. The suggestion that you made in your remarks on 12 March was that there might be a significant distinction between the two. We would submit that active participation in illegal activities such as phone hacking is not the only possible basis for a police investigation, either in the present, still less in the future, or for criminal prosecution. That's paragraphs 17 to 18 of our submissions.
LORD JUSTICE LEVESON
So you think, do I gather, that if I think somebody has simply not told me the truth in this Inquiry, I can't say that?
MR BROWNE
It depends what he's not told you the truth about, of course, but can I just expatiate on that. Knowledge of illegal activities such as phone hacking, a failure to intervene and/or a subsequent lying denial of knowledge could all too easily lead to police investigation and charges. The mere fact that there was not actual participation is not the end of the matter, and I can understand why you may not take from a non-criminal practitioner like me, but if one looks at paragraph 3.2(2) of the News International submissions, one sees there reviewed a range of potential offences which are runners and riders in that context, including conspiracy, aiding and abetting, encouraging and --
LORD JUSTICE LEVESON
Mr Browne, I may not be a media lawyer, but a criminal lawyer I once was, some time before this Inquiry, and don't I also have to have regard to the reality of the position?
MR BROWNE
Well, the reality of the position, if you permit me to say so, is contained in the submissions on behalf of the Metropolitan Police. Can I just remind you of what they say between paragraphs 5 and 8? They point out that the risk to an individual of investigation or prosecution is all the greater if the individual concerned is so closely involved as to have knowledge of illegal activity. In paragraphs 6 and 7, they go on to develop, by reference to the statutory provisions, the points that have been made in the submissions on behalf of News International, and finally -- and this is absolutely critical, in my submission -- in paragraph 8 they say: "Any public finding by the Inquiry that a particular individual had knowledge of illegal activity and has falsely denied that runs a serious risk of interfering with criminal prosecutions." I'll refer to just one of the reasons. It's at 8(2): "That individual's state of knowledge may be highly material to a conspiracy charge, but also if they're called as a witness for or against others."
LORD JUSTICE LEVESON
Yes, I might have a view about that, too.
MR BROWNE
Well, there's no shortage of views in this Inquiry. We've been going for many days now. But the police know where the investigation is going. The police have a lively appreciation of what the criminal offences are which they may be minded to investigate and/or subsequently prosecute, and I would ask you to take that warning very seriously indeed, not least because it is emphasised by the reference to the Ribemont v France case in Strasbourg in 1995. The analogy between an adverse finding by this Inquiry and what the minister and the police officer said at the press conference is a very close one.
LORD JUSTICE LEVESON
I think it's very different, but there it is.
MR BROWNE
Right. The so-called class libel analogy. You expressed a view about that. You said, I recall, on 12 March, that you didn't find it very helpful. Let me see if I can challenge that provisional view. First of all, you've been very careful this afternoon to talk about a section of the press, if you were to make findings about a section of the press. A section of the press would obviously be a circumscribed group, which would have to be circumscribed by some form of definition of the group.
LORD JUSTICE LEVESON
Why?
MR BROWNE
Well, if one is talking about a group, not the entirety of the press, somehow or other you have to describe the nature of that group.
LORD JUSTICE LEVESON
Why?
MR BROWNE
Well, I --
LORD JUSTICE LEVESON
I'm looking at the culture, practice and ethics of the press. What I am seeking to do to ensure, for example, in relation to the regional press, that it isn't suggested for one moment by anyone that any of the concerns that have been expatiated before me apply to them. So I think that unless anybody wants to suggest to the contrary, fairness requires me to say that. That's not the same -- in fact, I'm not sure whether any of the other titles has had nobody speak about it. I've not checked, and so don't ask some firm of solicitors to beaver through pages and pages and days and days as to whether it's so. I want to be fair, but I also need to be clear to justify the narrative that goes on to the need to consider the regulatory regime.
MR BROWNE
That I understand, and were you merely to distinguish between the national and the regional press, that might not fall foul of the submission that I am making. The submission I'm making is that if the Inquiry were to start limiting the groups, say, by reference to tabloids, popular tabloids, red tops, the Sunday --
LORD JUSTICE LEVESON
I was actually quite careful not to do that.
MR BROWNE
We're looking into the future, and all I'm doing is to indicate how the Inquiry should proceed, as and when it comes to the question of serving warning letters, because if the truth is that the groups are going to be defined in a way where the members of the group are so small that the allegation can be reasonably understood as referring to any individual, then we say, if you're against me on my main point about the terms of reference, that each member of the group should be served with a notice. It's in that connection that the analogy with a class libel, which fits with the way in which the common law, both as laid down in Nutfirm(?), Lord Atkin and Lord Porter in the midst of the Second World War, and in the American restatement, is most helpful, that there you have the danger, if you have a small group, such that what is said about them by way of criticism may be understood as referring to particular individuals rather than simply: all lawyers are thieves. My last point is this: you suggested to Mr White that one way out of this quandary might be to identify all the possible criticisms that you could make, together with the evidential support. That would be, in my submission, out of the frying pan into the fire, because what would happen then is that because the evidential support is all in the public domain and can be traced back because it's on the website, it would be very easy for people to put two and two together. In other words, it would be a jigsaw with a very small number of pieces, and if you made criticisms of that sort, even if qualified by saying that they were only possible criticisms you could make, the moment that you indicated the evidential support, the cat would be out of the bag and the individuals and corporations identified --
LORD JUSTICE LEVESON
They wouldn't actually, because when I serve the Rule 13 notice, they're entirely confidential.
MR BROWNE
I'm getting to the stage where the Inquiry actually makes its findings --
LORD JUSTICE LEVESON
So is the consequence of that that I should positively not include in the final report the evidential basis for which I reach the conclusions that I reach?
MR BROWNE
No. Well --
LORD JUSTICE LEVESON
That's the corollary.
MR BROWNE
The problem is that if you do that, making what the Inquiry believes to be general findings and therefore findings which comply with the self-denying ordinance, the moment you juxtapose or couple those possible findings with the evidential support, because all the evidence is on the Inquiry website, the individuals can be identified.
LORD JUSTICE LEVESON
I understand the point, but does that mean you're encouraging me to publish a report which does not provide the evidential basis for the conclusions that I reach?
MR BROWNE
Well, certainly --
LORD JUSTICE LEVESON
If I do that, I apprehend that some of those assembled in this room will write an editorial to the effect that I've just plonked this report out of the ether and there's no evidential basis for it at all, yet I have tons of it.
MR BROWNE
The public will be able to judge it for themselves, those who have been following the evidence given over the days and weeks of the Inquiry, but it would be an unfair criticism of you if you were to make criticisms without tagging them to evidential support which pointed to individuals, because it is the nature of the Inquiry set up in two parts and the terms of reference that follow. It clearly intended that part 1 should be the generality. Part 2, if it ever takes place, should be the specifics.
LORD JUSTICE LEVESON
I understand. So let me understand: are you submitting that the alternative possibility that I ventilated to Mr White is sufficient to satisfy Rule 13 and that I thereafter only need to be concerned about how much I put into the public domain when I publish the report, because, of course, the Rule 13 notice is confidential?
MR BROWNE
That's the point which you made earlier, which I see the force of. The problem arises when and if criticism is made in the Inquiry report. That's the moment at which outsiders can start to assemble a jigsaw which may just consist of two or three pieces.
LORD JUSTICE LEVESON
At the moment I'm only ruling on the Rule 13 issues. It may be that we'll have to return to what the report should contain in the later submissions that are to be addressed. I repeat that I am very keen to be fair to everybody, as I've said, and that's why I extended what I believe is the terms of the obligation not to prejudice criminal proceedings to the self-denying ordinance, as I've so described it, and I am happy to consider it. But on the other hand, it seems to me critical that I provide a narrative base for the conclusions that I reach, in order to deal with what appears to me to be the public concern arising out of what has transpired during the course of these hearings.
MR BROWNE
That I understand, and that is obviously why anyone who receives a Rule 13 notice may, in a curious way, welcome it, because it gives them the voice that they may not have had up till now. Take the Sunday Mirror and the suggestion of the surveillance team. Now, we would obviously want, if that were to be the subject of criticism and if we haven't dispatched it as an allegation already, to say something about that --
LORD JUSTICE LEVESON
Mr Browne, I don't believe for one moment that I will be suggesting any criticism or potential criticism at that level of detail. You referred to several of my earlier utterances to similar effect. I haven't actually considered what is the general heading of the point that may or may not be made about the way in which the press deal with massive police investigations, but it won't be that they hire surveillance teams, because even if it were so -- I'm not for a moment suggesting it is, but even if it were so, it's not a general problem that really does go to the culture, practices and ethics of the press. It may be a specific manifestation of an issue, but it would be the issue that I would be concerned about, not the manifestation. So there will be a level of generality in any event. So I don't think you need be concerned about Ipswich.
MR BROWNE
Thank you. I don't think I have anything more to say at any rate until we get the notices, assuming we do, or alternatively until we end up reading the report.
LORD JUSTICE LEVESON
But, Mr Browne, I hope you'll take part in the continuing debate that we're having, because your contribution is always welcome and valued. But do I gather that the alternative approach to Rule 13 that I raised with Mr White does seem to you to be an appropriate way of proceeding or do you need to think about that?
MR BROWNE
No, I don't accept that, because, first of all, we suggest that it will identify individuals when subsequently there is any publication, and because the Inquiry should not even be considering making criticisms which can be linked to individuals -- in other words, it's back to the very start of my submission --
LORD JUSTICE LEVESON
Yes, I understand that. I understand that, and it may be that the criticisms shouldn't be linked to individuals and it may be I'll have to think about how I deal with that in the report, but in order to provide appropriate Rule 13 notice, I have to identify the general concern that I have and provide the evidential basis for it. So that, it seems to me, as I read Rule 13, demands that I do the exercise to which I have just referred. Now, it may be -- and this might be a wonderful way of shortening the report -- that I can say that I did provide all sorts of evidential justifications for the criticisms but because I don't want to name anybody, I'm not going if to give them to you, and if you want to read them, then there is 70-odd days of transcript available to all. They can get on with it.
MR BROWNE
I'm afraid I don't accept --
LORD JUSTICE LEVESON
All right.
MR BROWNE
-- attractive though it may be, that what you suggested to Mr White is the way out, because, first of all, you shouldn't be there to begin with, and having got there, it is not the way out, for the reasons that I have given.
LORD JUSTICE LEVESON
But then effectively you're saying I shouldn't be criticising anybody for anything.
MR BROWNE
Well, so far as individuals are concerned, that is, we say -- and this is the starting point -- the necessary consequence of the terms of reference and the self-denying ordinance.
LORD JUSTICE LEVESON
But the evidence is always going to be on an individual basis.
MR BROWNE
Yes, but --
LORD JUSTICE LEVESON
Once you accept that I can criticise the press, I have to identify the evidential basis, and in the main, people have spoken about individuals and titles.
MR BROWNE
Yes.
LORD JUSTICE LEVESON
I've made it clear that I'm not going to criticise individuals or name individuals, but how otherwise can I do it? It seems to me that the effect of what you're saying is that I can't do anything.
MR BROWNE
That is the quandary that the terms of reference have created for you, that the moment evidence was permitted challenging the propriety of the conduct of individuals, individual editors, individual newspapers, there arose a problem which was not simply that of unfairness, in that the allegations were published under the protection of absolute privilege, but has prevented them from, by reason of the inquisitorial nature of the press, being able to refute them in the way in which they would have been able if this had been an adversarial process.
LORD JUSTICE LEVESON
But evidence has been refuted. You yourself were very keen that we call evidence dealing with some of the allegations that had been made, and I think we either called it or read it, in relation to the film. And there's no doubt that other core participants who have been concerned have indeed called evidence to rebut allegations. I heard no small amount of evidence about an article in one newspaper, which had led to a great deal of press coverage, when the relevant victim gave evidence. Anyway, I have the point.
MR BROWNE
You rightly refer to Starsuckers and we were grateful when, after some weeks, it was eventually decided by the Inquiry team to look at the transcripts themselves, but we never actually were provided with copies and the reason that you refused the application to allow to us see them was, precisely as you've said on other occasions, because you were not intending to make specific findings --
LORD JUSTICE LEVESON
I think the only bits of the transcripts that you did not see were those parts that my team concluded were absolutely irrelevant to any point you wanted to make or any point -- in other words, in criminal terms, they were not disclosable under the CPIA.
MR BROWNE
As I said, we were grateful that I think Mr Barr finally looked at them. I see from the clock it's 4.20. I think I've made my submissions.
LORD JUSTICE LEVESON
Thank you, Mr Browne. I'll ask Mr Sherborne in a moment. Does any other press core participant want to say anything on this subject? I'd be very grateful if people could give some thought to the alternative approach to Rule 13, and in particular, to the requirement that I will have that people address the conduct, the culture, practice and ethics of the press, not just their own titles. Do the police want to say anything about this?
MS MICHALOS
Sir, yes. You've seen our written submissions and Mr Browne has very helpfully made a number of the points that I would like to make, but I think that there are four points that I would wish to emphasise. Before I do that, it's fair to say that the MPS here are in a similar position as Mr Garnham outlined in relation to the submissions on the approach to evidence generally prejudicing the criminal proceedings, in that anything said here may be relied on by future defendants in support of an abuse argument, so it's necessary for submissions to be circumspect and to a degree we are walking a tightrope. The first point that I would wish to emphasise is that the investigations are ongoing and there have been 48 arrests under the various operations, but that figure includes --
LORD JUSTICE LEVESON
I know who's been arrested.
MS MICHALOS
Sir, you said earlier: "In my judgment, those foreseebly won't be the subject of criminal investigation." And with respect, it's submitted there is a great degree of uncertainty around that.
LORD JUSTICE LEVESON
In the areas that I am thinking about, I don't think there's any uncertainty at all, but I understand the position.
MS MICHALOS
Secondly, the nature and breadth of the offences under consideration which are listed in our skeleton. These do involve offences in which the surrounding circumstances and the knowledge of others are highly relevant and the proof of an agreement may be made by a matter of inference in relation to relation to conspiracy, for example. So in these circumstances, it's very difficult, I would submit, for the Inquiry to be sure that any finding of knowledge isn't going to impact on any future criminal proceedings, and I would refer you, sir, to the list of paragraph 8 of our submissions on that point. The third matter that I wish to raise was that on 12 March, sir, you indicated that you were considering findings that individuals falsely denied knowledge to this Inquiry. Again, we would submit that that is a highly risky area for the Inquiry to embark upon, in particular because this may lead to later arguments that there was a violation of Article 6 if those who were found in the Inquiry's judgment to have lied, effectively, on oath, are then being relied on --
LORD JUSTICE LEVESON
I think there's authority for the proposition that my failure to accept evidence does not mean necessarily that they're guilty of perjury.
MS MICHALOS
But it goes to the question of a risk as to a fair trial, and this leads into my fourth point, which is the de Ribemont case.
LORD JUSTICE LEVESON
But hang on a minute. Are you suggesting that I cannot say anything about anybody because at some stage the police may get around to thinking about what they said in the Tribunal and may decide to prosecute them for some offence purely based upon what they've said in this Inquiry?
MS MICHALOS
No. What's being submitted is that the Inquiry should strive not to make any findings that somebody falsely denied that they had knowledge of conduct because that person may be a witness in a future criminal prosecution, or they may be a defendant in a future criminal prosecution, and a public finding by a public authority as to their credibility is something that carries with it a risk -- and I put it no higher than that -- of interfering with Article 6 rights, for the reasons given in the Allenet de Ribemont case, namely that public statements by authorities on ongoing criminal investigations should be dealt with discretion and circumspection. I know, sir, that you indicated to Mr Browne that you indicated that case was irrelevant.
LORD JUSTICE LEVESON
Of course it s because I'm not going to say anything about anybody who is the subject of present criminal investigation.
MS MICHALOS
It may be different factually, but it's not different in principle, because the principle underlying it is that comments by public authorities of this nature can violate Article 6, and I would submit that applies equally in respect of those who may be witnesses, which is something that the Inquiry cannot be sure about at this stage. So those are the points that I would wish to emphasise, and that --
LORD JUSTICE LEVESON
Did the police think about challenging this Inquiry in its entirety? Because the effect of what you're saying may be that I shouldn't have started at all.
MS MICHALOS
No, that's not the position at all, because the Inquiry's been divided into part 1 and part 2, and sir, you've repeatedly emphasised this is not about who did what to whom. Findings of this nature strays into that area, I would submit. Finding of --
LORD JUSTICE LEVESON
If I find that somebody who's previously said, "It's obvious there was phone hacking going on", and then has come to me and said, "Well, I didn't know that at all, that wasn't true" -- I'm not then entitled to say, "Do you know, I didn't actually believe that denial"? I can't do that? Is that the effect of your submission?
MS MICHALOS
I would submit it's something that the Inquiry should not do because of the potential risk.
LORD JUSTICE LEVESON
What is the risk that you're talking about?
MS MICHALOS
It's the risk that I've identified.
LORD JUSTICE LEVESON
No, no, but in that particular case, is it the risk that reliance will be placed upon what was said in writing initially? On the fact that he denied it on oath or the fact that I didn't believe his denial on oath?
MS MICHALOS
Most importantly, it's the fact that a public Inquiry did not believe the denial on oath is the most important --
LORD JUSTICE LEVESON
I'd rather believe what he said first time around?
MS MICHALOS
I submit that everything you have just said indicates the problem, which is what is going on there is an investigation as to which of those facts were true, which may be something that falls to be decided and argued about again in a criminal prosecution. That is the risk here. It's obvious that there is a difficulty, in that none of us here at the bar have an indication as to precisely the areas that you're considering making these findings about or the witnesses that this relates to specifically, but the principles are the same, I would submit, for all of us. It's a dangerous area.
LORD JUSTICE LEVESON
Well, all right.
MS MICHALOS
Ultimately, I would submit there is no need for these sort of findings because the Inquiry has been divided into part 1 and part 2. These type of findings are more appropriate to part 2, I would submit.
LORD JUSTICE LEVESON
Then you have to answer the question: am I supposed to say nothing at all about the evidence I've heard, because it might interfere with the prosecution?
MS MICHALOS
Sir, that's not what I've said.
LORD JUSTICE LEVESON
No, I know, but it's the effect of what you're saying, that I can provide no detail of any sort.
MS MICHALOS
It isn't, sir, with respect, what I'm saying and it's not the effect of what I'm saying. It's specifically limited to findings relating to knowledge and credibility of witnesses that may impact on a criminal investigation.
LORD JUSTICE LEVESON
But --
MS MICHALOS
The only other thing that I would add is that if this is a course that the Inquiry is set on, one possibility of a way forward is to consider publishing a report where these sort of details and these kind of findings are delayed for publication. So a partially redacted report, so any of these sort of findings are delayed until after any criminal prosecution. But that's a procedural matter for you, sir.
LORD JUSTICE LEVESON
Well, I understand.
MS MICHALOS
The basic submission of the police is that, given the self-denying ordinance and the fact this Inquiry has been split into two parts, there should be every effort made not to make any findings that may interfere with criminal proceedings.
LORD JUSTICE LEVESON
I don't intend to interfere with criminal investigation. I've made that very clear. Where we may differ from one another, Ms Michalos, is what interferes with a criminal investigation. Right, yes, Mr Sherborne?
MR SHERBORNE
Sir, with the greatest of respect, the submissions that you've heard belong very firmly in Alice in Wonderland, we say. I'll try to keep this unusually brief. It's accepted that the genesis of this Inquiry was the huge outcry that the practice of accessing people's voicemails generated. Whilst various individuals, for example in News International, are the subject of ongoing criminal investigation, the public's concern is about this practice generally and what it may say about the press as a whole, or certain sections of it, and not simply the acts of the journalists who have been arrested, let alone one particular newspaper. It's not just, sir, that you've heard evidence from the three individuals you referred to. There's been significant evidence within the course of this Inquiry directed not just towards the widespread use of this illegal technique, but also, and we say critically, the knowledge or awareness of this practice within different newspapers or amongst senior executives in the industry.
LORD JUSTICE LEVESON
I appreciate that. I gave the example because it was a very, very simple manifestation of the issue, which actually relied not upon my preferring one witness's evidence to another witness's evidence but only what I thought about the evidence of one witness based upon his or her own material.
MR SHERBORNE
Sir, yes, exactly. Whether you accept or reject that evidence is obviously a matter for you, but we say this: you asked rhetorically what are you meant to do with this evidence if you find there was evidence of such knowledge as a matter of generality. And I say "generality" because this doesn't, in my submission, offend the mantra, as it's been called. With respect, despite Mr White's delicate entreaties or the rather heavier salvos by Mr Browne, nothing you said by way of example offends this self-denying ordinance. None of the examples that you posited during the course of discussions offends that self-denying ordinance at all, and if Mr Browne is right, for example, in the way he puts it, this self-denying ordinance is more a straitjacket and a blindfold as well, because in effect you are not able to do anything with that evidence. We say that cannot be right. The position is much more straightforward. If the Inquiry reaches conclusions that it was well-known that these unlawful or improper practices were taking place, or that those who denied knowledge did so falsely, then these are conclusions which can and should be fully addressed in the report. How else, I ask rhetorically, can the inevitable questions which have been raised in the minds of the somebody about the culture, practices and ethics of the press and which, by definition, will not be dealt with in any criminal investigation -- how else, we say, can they be properly answered? It's not just a matter, we say, of satisfying the public's interest. It's also a matter of ensuring that this Inquiry fulfils its terms of reference under part 1 as comprehensively as possible.
LORD JUSTICE LEVESON
Well.
MR SHERBORNE
We say it's as simple as that. I'm not going to repeat the submissions that are set out in writing.
LORD JUSTICE LEVESON
Thank you.
MR SHERBORNE
Unless I can assist you, given the time, with any of the other matters. That's all I wish to say on behalf of the core participant victims.
LORD JUSTICE LEVESON
Thank you very much indeed. It may be that I will have to add to the list of issues for the future what I can publish in a report, but if the effect of some of the submissions that I have received means that I can't make any criticisms at all, however framed, then it becomes quite difficult to see where this Inquiry can go. What I would therefore invite the core participants to do is to consider the exchange, particularly the exchange that I had with Mr White and Mr Browne, and reflect upon the approach to Rule 13 in the first case, because that's all I'm deciding at this moment. What I can do thereafter may have to be the subject of further argument. It's sufficient if I say that although I will reflect long and hard on all that I have heard this afternoon, I will need considerable persuasion to the effect that I cannot fairly do justice to the terms of reference while at the same time keeping faith with my wish not to impede any criminal investigation or offend the approach that I took, which was to place those who weren't being investigated in a worse position than those who were. I'll reserve the position in relation to core participants and give a decision as quickly as I can. I wonder if I could ask core participants who wish to to make further short submissions on the exchange. In particular, I'm conscious that I have created a new idea for Rule 13, which generated as a result of reading the submissions I received, and I'd be happy to receive their views as to that approach. Anything else? Thank you very much. (4.39 pm) (The hearing adjourned until 9.15 am the following day)

Themes

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

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