Afternoon Hearing on 18 July 2012

Professor Steven Barnett and Matt Sprake gave statements at this hearing

Hearing Transcript

(2.00 pm) MR JAY Professor Barnett, may I raise two wider issues in relation to plurality before I move on to media relation?
A. Then, if I may, I'd like to add one comment to what I said earlier.
Q. Yes, please do.
A. Do that now?
Q. Please.
A. It was just in relation to that final question which you posed, which I thought was absolutely crucial in terms of the linkage between ownership and culture, practices and ethics, and I'd remembered that in my submission to Module 3, I had a section, which I obviously won't read now, on plurality and editorial influence, and I gave a few examples of how it operates, from various biographies, et cetera. Then I said at the end: "The professional values which journalists claim to embrace and to which the vast majority certainly aspire will inevitably be influenced by and sometimes subordinated to the corporate world vision and editorial inclinations of the owner and editor." And as I say, I've given examples in that submission of how that works. I think there's a very clear connection, linkage, between the orders coming down or the imperatives coming down from the top and what actually happens on the factory floor, so to speak. LORD JUSTICE LEVESON Yes, well, that reflects, doesn't it, the evidence of a number of witnesses that a proprietor doesn't need to tell his editor and the editor doesn't need to tell his or her staff what the line is.
A. Yes, absolutely. MR JAY There may be two routes into this. The first is the direct one, which is influence by osmosis, if you like, from the proprietor down to the journalist. The second, the more indirect one: too much power concentrated in too few hands. That breeds a sense of impunity within the organisation and therefore a degree of failure to adhere, I suppose, to ethical standards, and part and parcel of that phenomenon, reluctance by politicians to address it. So you have the direct route and the indirect route, arguably creating the problem.
A. I think that's absolutely right and I think that sense of impunity, I think we've heard from well, unfortunately not that many individual journalists, because I think quite a few are concerned about raising their heads above the parapet, but the obvious witness is Richard Peppiatt, who talked about what he was actually told to do, and I think this comes back to the notion of some kind of regulatory mechanism for whistle-blowing. I think the whistle-blowing aspect for those journalists and as a journalism educator, I think this is terribly important who want to aspire to the kinds of ethical and professional values they might learn and suddenly find themselves in an environment where they are asked either to ignore them or to routinely transgress them there needs to be some kind of mechanism to address that, but the cause of that problem is, I think as you say, both that process of osmosis and the sense of impunity.
Q. I was just putting those forward as ideas, not necessarily as expressing any opinion.
A. I think they are ideas which are well argued and accurate, in my view.
Q. Can I go back to plurality. Do you see there as being a fundamental distinction in principle between newspaper merger situations on the one hand, which are catered for by the existing legislation, which are rather binary, and, on the other hand, organic growth? Because organic growth isn't, of course, catered for at present, and it might be said to be the price of success, or rather you wouldn't necessarily want to penalise success. That slow organic growth then leads either to structural remedies your being forced to divest or the softer behavioural remedies you suggest might be appropriate in that latter instance.
A. Yes, and that is entirely why I would prefer the behavioural remedy approach with the caveat that I made earlier, that at a certain level I think in a democracy it gets to the point where you have to say: there is a price of success here and it's that we simply cannot allow an individual or a corporation to have this much share of voice, this much share of influence over people's opinions.
Q. There's another issue as well it may be a sort of pragmatic one that we may be seeing further concentration in the market. The market is dwindling. We may be increasingly looking at the possibilities for foreign investment because after all, you can't force people to invest in the newspaper market, but if people are looking at a range of structural remedies and behaviour remedies which will penalise them if they are successful, what some may say you're creating is a series of deterrents for anybody to enter this market. So you might, by being too stringent, in fact be signing the death knell for the newspaper industry. I put it quite high and tendentiously but only to illustrate the point. Do you think there's any merit underlying it?
A. I do. We do have to be aware of the whole sustainability problem, and when you have an organisation that has been prepared to invest and News Corporation is often given as the prime example an organisation that has been prepared to invest in news-gathering, that has created a 24-hour news channel from scratch, running at a loss, and is clearly high quality, why should you want to penalise a company like that when we're actually running out of people who are prepared to invest in news-gathering? So I think these are genuine issues, they're important issues, but the crucial thing is to get the balance right and at the moment I think we've got the balance wrong, and I think that goes back the roots of that go back both to political fear and to the inadequacy of the current statutory regs. LORD JUSTICE LEVESON The problem is where there isn't something that is inevitable about a situation. You have certain bodies who support newspapers for reasons which nobody is, for a moment, challenging, but if you're encouraging individuals to invest in a business that is unlikely to be profitable, then there has to be a reason why they're prepared to do it.
A. Mm. LORD JUSTICE LEVESON And it's quite difficult to see what that reason is, if it is not an ability to promote views or support particular opinions.
A. I hope I'm not maybe I haven't been expressing myself very clearly. I hope I'm not being interpreted as saying that newspapers should not be allowed to express partisan opinion or frame a news agenda in the way they want. That's not my I mean, I do think there is an issue about the separation of news and comment, but that's a separate issue. I'm not suggesting that. I think the behavioural remedies can be a range of remedies, including things like guaranteeing further investigation in news gathering, investment in training. I don't think we need to go as far as to say that newspapers would need to withdraw from being partisan at all. The key question is ensuring that there are sufficient numbers to make sure that those partisan views do not all represent one part of the spectrum of opinion or ideas. LORD JUSTICE LEVESON But if they emanate from people with sufficiently large sums of money that they can afford to run this sort of enterprise, how unlikely is that?
A. How unlikely LORD JUSTICE LEVESON Is it they are not likely to come, if not with identical views, then with views that are not necessarily extremely at variance?
A. I think that raises a question about what happens when you get one part of the spectrum of opinion overrepresented and another part severely underrepresented. At that point, I think you would have to start thinking about and perhaps we're not there yet, but we may not be far from it the Scandinavian model of public subsidies. I can sort of hear the sound of kind of running feet as I say that, certainly from the press. The notion of any kind of public subsidiary in the press as we know it is clearly anathema, but it is not an alien concept in other European countries, in other mature democracies, for that very reason. LORD JUSTICE LEVESON Well, that's the point. I'm merely talking about the true breadth of what plurality actually means.
A. Yes, and I think and the other question is: who actually decides? Who makes the decision that there is a part of the spectrum that isn't being adequately covered? LORD JUSTICE LEVESON Yes. MR JAY Professor Barnett, the public interest now, which is the first section of your statement. There are a number of different ideas you advance for our consideration, but the first is the possible weaknesses in the current code, by which of course I'm referring to the Editors' Code of Practice, and the self-serving definition of public interest in freedom of expression itself. Are there some points there you'd like to expand on for us?
A. To be fair, I had a fairly good go when I gave evidence last time on the public interest. The only thing I would add is I don't think it is helpful to have a number of different definitions or interpretations of what the public interest means. I think it is it is a term which is often abused rather than used sensibly. LORD JUSTICE LEVESON You have to be very careful about that for this reason: that, as I've said before, it actually means different things depending upon the context. We've talked about several during the course of the last few days, and therefore, to attempt a definition that encompasses all is probably simply not possible.
A. It depends what you mean. Which encompasses all what? LORD JUSTICE LEVESON The various circumstances in which the public interest might arise. There's the public interest in the division between privacy and invasion thereof. There's the public interest in when you prosecute people for crime and when you don't. There's the public interest in plurality. The constituent features of each of these concepts are slightly different.
A. They are. What I'm specifically talking about here is a public interest in terms of legitimate journalistic enquiry. So specifically not about ownership, where I think there's a very different set of meanings about the public interest, and not about the criteria on which prosecution may or may not be brought. LORD JUSTICE LEVESON I appreciate that, but what I'm saying is that if you start to try to define "public interest", what you will find is that people will use the definition inappropriately.
A. Absolutely, which is why I think it is important that it is defined in terms of legitimate journalistic enquiry, and this is what I've proposed here. I genuinely don't think it is that difficult and that is why I have prayed in aid, so to speak, the piece of public attitude research which we did for the British Journalism Review, which I've submitted. LORD JUSTICE LEVESON Yes, I've read that. I'm somewhat concerned that you took as one of your examples a High Court judge who had large investments in foreign companies linked to the illegal drugs trade.
A. I can explain that. LORD JUSTICE LEVESON No, it doesn't matter.
A. Okay, okay. MR JAY Can I ask you, please, about that research?
A. Yeah.
Q. What was your sample of people you asked?
A. It was a YouGov survey. I'm pretty sure it was 2000. It was their standard sample size 1,658. And that's a standard YouGov online sample. Their methods it's a YouGov omnibus survey. Fairly standard technique for gathering data. I don't have any problem with the sample size or its representativeness. Can I just say that that particular question was repeated from a survey done ten years earlier, so I abdicate myself of all responsibility.
Q. It might be said and this isn't just a flippant point if you look at the example you've alighted on in your report, which we can see is table 5 in the survey. It's on page 01569, the well-known England footballer who's married with young children and is having an affair. You've got only 6 per cent who say it's definitely in the public interest and should be published, but you have 30 per cent who say it's not necessarily in the public interest but nevertheless it should be published. So either they're not sure or they think on balance it should be published in the public interest.
A. Yes.
Q. You have a third of people in that group. That's at least enough to accommodate the readership of some of the leading sections of the press who dabble in this sort of story, isn't it?
A. Not if you look at the figures for tabloid versus broadsheet readers, because if you look at the way it breaks down by newspaper readership, the proportion of tabloid newspaper readership who gave that response that it's a private matter and should not be published did fall, but it only fell to 50 per cent, so half of all tabloid newspaper readers gave that response. Can I just say: very often when you do surveys like this, you have a sort of inkling of what's going to come out. I've given three or four presentations now of these data, this research, and the way I always do it is I put the question up and say, "Let's see how well plugged in you, the audience, are to the British psyche, to British popular opinion. Have a guess at what these results are going to be." And the maximum I've had for that, the story is a private matter, is about 25 to 30 per cent, and I have to say that was my guess, in advance of this research. I was really quite stunned and I deliberately framed this was my question, by the way. The judge one wasn't, but this was mine, and I deliberately framed this question to make it as similar as possible to the role model argument. So it's a well-known national footballer who is married and has young children having an affair. So there's plenty of potential public interest role model justifications in there for it to be published, and even if you don't take you don't think there's enough of a public interest argument, there's certainly enough there to say: okay, it's interesting. It may not be in the public interest, but it's interesting, and yet even that only got 30 per cent of people giving that response. I just felt that third option it's a private matter and should not be published and "not" was in capital letters. This was an online survey, so you see the "not" in capital letters. I thought that was actually quite draconian. I was really very surprised when we came up with this result. LORD JUSTICE LEVESON What I'd be interested to know I mean, my comment about the High Court judge was flippant.
A. Sure. LORD JUSTICE LEVESON If I don't do that sort of thing occasionally
A. Okay. LORD JUSTICE LEVESON But I'm interested in your answer that it comes from an earlier piece of research, because what interests me is if this is a repeat piece of research, I'd be fascinated to know what happened ten years ago.
A. I do actually give a reference. It's David Morrison and Michael Svennevig and it was done at the University of Leeds, at the bottom of page LORD JUSTICE LEVESON Oh. MR JAY With very similar results, wasn't it?
A. They were virtually identical. LORD JUSTICE LEVESON I'm sorry, I didn't pick up the footnote.
A. The wording wasn't different. The answers the potential answers were slightly different, because we wanted to get in this idea of something that was interesting and therefore should be published, whereas they just had "definitely should be published", "probably should be published", et cetera. That's in the piece. LORD JUSTICE LEVESON Okay.
A. Taking that into account, the results are very similar and seem to me to suggest a really quite interesting stability of public attitudes over time. If I maybe just make one more point about this LORD JUSTICE LEVESON What's interesting, before you make your point, is that you talk about June 2012. The figures may not have changed much, notwithstanding the last 12 months.
A. Yes. LORD JUSTICE LEVESON Mind you, 60 per cent or 58 per cent saying the story is private and should not be published is pretty substantial.
A. I think it's very substantial. And for me, it does give it does make me question you know, I've heard the role model argument and I've understood the rationale for them and had there been an obvious public backing for them, then perhaps you could say, "Okay, this does sort of speak to some sense of collective ethics." But it doesn't. I'm quite clear now that it doesn't. The other point I was going to make is that the other argument that is made for some of these the more kind of revelatory journalism is that that's what people want. So you have why do people buy tabloid newspapers? But in fact and there was an article just last Sunday by a broadsheet journalist in a liberal newspaper suggesting that 14 million people read the tabloids and yet the whole Leveson debate is being dominated by the three or four million who read the broadsheet newspapers.
Q. I was languidly reading the Financial Times in that particular paper
A. I will give you the reference.
Q. No, I know the reference. I'm just referring to it expressly. I didn't mind too much the reference to the Financial Times. But sorry, you carry on.
A. And then you start thinking: okay, 14 million people read clearly a lot of those nevertheless still think there are limits to the way in which people's private lives should be invaded, what should be published, but even that 14 million represents less than a quarter of the total population. So there has to be some sense here of collective attitudes, not just those that are held by those who buy tabloid newspapers. For me, this is partly what this piece of research does. I would love to have the resources to do something rather more substantial and sophisticated, in particular looking at what difference it makes if you tell people about the methods journalistic methods that are used. Some might be regarded as rather more appropriate than others for actually getting a story. Does it matter if a story is obtained by virtue of an injured party simply talking to a newspaper? Does that make a difference to the sense of whether it's appropriate or not? But as it stands here, I think we have, for me, a really clear line. Going back to your very first question about different interpretations of the public interest, I think the public understands the difference between the public interest in exposing wrongdoing, holding to account, speaking truth to power all those phrases that we've heard over the last few months and revealing the innermost secrets of celebrities or well known people or people who might have had misfortunes or done something inappropriate that is not the same as accountability journalism. LORD JUSTICE LEVESON This is very important, because of the constant criticism that the Inquiry has faced and I don't complain about criticism that it's not involved the expertise of tabloid and mid-market journalists, that it's all been focused on liberal with small "L" political thinking, and that's simply unbalanced and inappropriate, and merely to recognise it allows one to aim off, as it were, and to make sure one doesn't fall into a trap. But this research seems to suggest that the criticism may not be as valid as it is sometimes suggested.
A. Well, I've heard the criticism levelled and it's levelled for two reasons. One I think is a perfectly valid reason, which is good tabloid journalism is something different from broadsheet journalism or broadcast journalism, and that expertise is missing. That's a valid point to make, whether or not it makes any difference. But the other is a much more self-serving point, which is: "You can't possibly hope to understand what we, the tabloid press, how we the tabloid editors work or should be allowed to work because there is no expertise and we are the ones who represent public opinion." It's that suffix that is always put on the end: "We're the ones who understand what really goes on because we have the popular readers." We have LORD JUSTICE LEVESON "And we make money."
A. "And we make money." Well, yes. "We make money", absolutely. And I'm afraid, for me, that's what what this research does for me is to give the lie to that. And as I say, my background is in sociology, I've been doing surveys for 30 years and more often than not, you have a feel for what's going to come out when you ask a question. This completely threw me. MR JAY Thank you. That's very clear. Those are all the questions I had, Professor Barnett.
A. If I could just add one more thing and this is essentially carrying on from the public interest. It's for that reason that I am still very much in favour of a statutory public interest defence, because I do think that would enable both what I believe now to be the popular will, and, I think, the greater sense of amongst those who care about journalism, who care about journalistic ethics, believe needs to be protected, can be protected in law through a very clear distinction between journalism that really matters, that a democracy really needs, and journalism that is there simply to sell newspapers or make money. LORD JUSTICE LEVESON You've just kept yourself there for a couple more minutes, Professor Barnett. What do you mean by "statutory public interest defence"?
A. I mean a defence that could be used against more or less any I'd better be slightly careful what I say more or less any that could be introduced as a defence to crimes that are currently currently have no public interest defence. So I'm thinking about the Bribery Act. I'm thinking even about RIPA. LORD JUSTICE LEVESON Let me challenge you about that, please.
A. Of course. LORD JUSTICE LEVESON I've done this before with another witness, so you may have seen the challenge.
A. Who was that? MR WHITE Dr Moore.
A. I missed that bit. LORD JUSTICE LEVESON Let's just consider it for one moment. I won't do it again, I can tell everybody whose had to listen to it once. There is a very important principle that journalists do not reveal their sources. That's very important because the source has to feel protected, and if the journalist is going to hold or to expose wrongdoing to the public, there has to be a mechanism to protect people. However, that protection is a protection for the source. It's not intended to be a protection for the journalist. So far I take your nod as agreement?
A. Yes, I'm with you. LORD JUSTICE LEVESON Only because it doesn't come on the transcript in that way.
A. Sorry, yes, I agree. LORD JUSTICE LEVESON Now, let's move on. Let's take a story that a journalist wishes to publish. The journalist may believe that your we won't say footballer your politician is having an affair. He may believe that he can expose that affair, which has no other public interest, by hacking into his email account. So what he says is: "I've got a source that says this politician is making or receiving corrupt payments. It's absolutely in the public interest that that be exposed." He has no such source.
A. Mm. LORD JUSTICE LEVESON He uses it to get the information to reveal the story and he publishes the story.
A. Mm-hm. LORD JUSTICE LEVESON It then transpires that he's hacked into the email and committed a crime.
A. Sorry, the story he's published is not one of corruption but it's one of having an affair? LORD JUSTICE LEVESON There was never any corruption.
A. No corruption? Okay. LORD JUSTICE LEVESON It's all to do with first of all, the privacy of the politician has been invaded without good reason. Secondly, a crime has been committed without good reason. So now one gets to the police investigation, if there ever is one.
A. Yes. LORD JUSTICE LEVESON Because it may never be reported or whatever. There are all sorts of reasons that will cause that leap not to be made, but let's assume there is one. The journalist says, "Well, I had a source and the source told me that this politician was corrupt." "Well," says the policeman, "you're going to have to provide me with some justification for that, because I think this is a clear breach of the law, designed to delve into the privacy of this politician." And the journalist says, "I'm very sorry, I can't do that because I'm not prepared to reveal my source."
A. But the it would have to be a clear one of the criteria of a public interest test would have to be that the story published was manifestly in the public interest, and I don't think it's difficult to LORD JUSTICE LEVESON But, you see, you can't necessarily link it because you can't necessarily link that's why I said it would never get to the police. You can't necessarily link the story that's eventually published with the hacking into the email. He won't say, "I got it by hacking into an email."
A. I may have misunderstood, but if LORD JUSTICE LEVESON In any event, with great respect, I'm not sure you're right, because if there's a public interest defence, that can only bite at the moment the offence is committed. It can't be self-justified or self-refused later, because let's assume there wasn't any story about a private affair. Let's assume that the journalist merely believed that the politician was having an affair but justified hacking into the email by reference to some story about corruption.
A. Right. LORD JUSTICE LEVESON Now, he has committed the offence when he hacks into the email. What comes thereafter is neither here nor there.
A. Right. But LORD JUSTICE LEVESON The moment he commits the crime is when he hacks into the email.
A. But if he hacks into the email with the honest and part of this this would have to be a mechanism, a regulatory mechanism and I think this is actually laid out in the Media Standards Trust report where for a you first have to get permission from someone senior within the organisation. It's exactly the way the broadcasters do it now. It's a two-stage process. You first have to say, "I have prima facie reason to believe that there is something serious going on here. I want to investigate it. Do you, Mr Senior Editor/ director of editorial standards, give me permission to go and hack the email or listen to the phone message?" LORD JUSTICE LEVESON Yes.
A. And this is audited. This is written down: "The reason why he's been given permission to do this is as follows." LORD JUSTICE LEVESON Fine, but he won't necessarily reveal his source to the editor.
A. Well, maybe there has to be provision. I think most journalists would be prepared to reveal their sources to their editor LORD JUSTICE LEVESON And is the editor going to check up?
A. That's entirely up to the editor. LORD JUSTICE LEVESON The point is that it's entirely self-serving. In other words, it's possible I'm not necessarily saying anybody's ever done it, but the criminal law has to cope with this possibility.
A. Yes, it can be abused. LORD JUSTICE LEVESON That it will be open to the most horrific abuse, that a journalist will say, "I've got a source, he's a wonderful source, I've used him a gazillion times. Every single time he's come up trumps and this is what I want to use him for now, and this is what I think: that there's corruption." With the best will the in the world, the editor may say, "Oh yes, you've named that source, and I know he's been used on these other stories", but there's no way of going behind to see whether this particular story is being pursued in good faith or is merely the cover for some entirely inappropriate privacy invasion.
A. I understand that, but if this criminal act is then committed and is clearly committed in the knowledge that it is criminal and permission is given to carry out this criminal act, then clearly it is a risk that is being borne by the journalist, by the editor, by the media owner. All I'm saying is that there are circumstances in which there should be a defence provided. If they want that's not to say there shouldn't be a prosecution. LORD JUSTICE LEVESON But you wouldn't have a prosecution, Professor, because before the CPS would prosecute, they would have to feel it satisfied the code test for prosecutions, one of which is an appropriately realistic chance of conviction, and if you can't ever undermine the assertion of the journalist that he had a source that gave him a public interest if there's no evidence that allows you to undermine it, then it becomes impossible.
A. Well LORD JUSTICE LEVESON That's why I invited the director, during the course of the Inquiry, to consider whether he would publish a guideline on the approach to public interest, in the context of prosecutions, of journalists, and that of course, as you know, he's done.
A. He has, and I was involved in one of the consultations. The problem with that is that it is further down the road. You've actually by that time, you've committed the crime and you're taking a chance as to whether you're going to be prosecuted or not. LORD JUSTICE LEVESON But maybe you do have to take that chance on the basis that if you are doing this entirely square and you've covered yourself with your editor and all the rest of it, then that will all emerge, and if you're investigated by the police, you'll be able to lay it all out. But if you provide a public interest defence
A. In law. LORD JUSTICE LEVESON along the lines you suggest, it is open to terrible abuse. I'm not going to say that it will be abused, but I'm absolutely not going to say it wouldn't be abused.
A. And you don't think that there are ways of writing safeguards into a law like that to ensure that I mean, it seems to me that it's not that different from the guidelines LORD JUSTICE LEVESON It's enormously different. It's not only in degree; it's different in kind.
A. Well, it's certainly different in kind. LORD JUSTICE LEVESON Because ultimately it doesn't constitute a defence. There are a number of mechanisms of protection. The first is the CPS, who, one would hope, undertake and I have confidence their responsibilities in this area with integrity and propriety. I don't just hope it; I know it.
A. Mm-hm. LORD JUSTICE LEVESON Secondly, there is the prospect of the journalist being able to say to the judge: "This is an abuse of the criminal justice system." Thirdly, there is the prospect of that the jury say, "Well, I don't care", the Clive Ponting defence.
A. Yes. LORD JUSTICE LEVESON And finally and I wouldn't want anybody to forget it there is a judge sitting behind all this, so that even assuming your journalist is convicted, he is able to say, "There isn't, in truth, a public interest defence, but I'm satisfied that actually, if you like, there was entire good faith" or all the rest of it, whatever formulation you want to use "and therefore I absolutely discharge you from I'm not passing a sentence. You're absolutely discharged." There you have a whole series of protections, but isn't it important, I ask you, that before journalists do break the law in order to obtain stories, that they think very, very carefully and that they appreciate that they are in fact crossing a line?
A. Yes. The answer to that is: categorically, yes. I think my concern is that we've heard a lot over the last few months a lot of self-serving evidence about the chilling effect of regulation, et cetera, and I suppose my concern is while I find most of those arguments and most of that evidence wholly unconvincing and self-serving, I do think there is an issue around the kinds of journalism that we're all agreed we want to try and promote and sustain and safeguard and that there is a risk that that's the kind of journalism that might that could be better promoted if there was a better sense of what was legitimate in the public interest. LORD JUSTICE LEVESON That's what I hoped the director would do when he promulgated guidelines. I entirely agree that I would like to do that all that possibly can be done to promote good journalism. How many times do I have to say this? An enormous amount of the day-to-day work of journalists is not merely engaging, informative, valuable in our democratic society, but essential to our democratic society. However, it may be thought after this Inquiry and I will reach my own views that there is a not insignificant culture within certain sections of the press that is the very reverse of all that I have just said, and whereas one has to do everything one can to promote the first, one ought to do equally everything one can to suppress the second.
A. I completely agree. LORD JUSTICE LEVESON And the risk is that if you are going to be unethical in how you go about your work whether it's a trade, a profession or business, it doesn't matter. If you're prepared to be unethical and you don't care about the rights of others, then that's not a good starting point to be able to rely on people to tell the truth as opposed to in connection with sources, because not to disclose your source is core, as we agreed when you required me to start this merry-go-round. It's core to investigative journalism, and it's a principle that should only be undermined and it can be undermined in law, as you know, but should only be undermined for very, very good reason.
A. Can I just say, taking that a stage further, the suggestion the logical conclusion from that would be that those public interest defences that currently exist for example, in the Data Protection Act should be excluded. LORD JUSTICE LEVESON Not quite. I mean, you could be right that will cause excitement but not necessarily, because the Data Protection Act also covers the publication. So it may be you've got the information, and of course you've committed an offence by getting it, which may or may not be recoverable, but what data protection is also concerned with is the publication of that information, and the publication of the information would require the exercise to be conducted at a slightly different moment in time. You remember I spoke to you when you are talking about hacking into phones or bribery, it's the moment the offence is committed.
A. Mm-hm. LORD JUSTICE LEVESON If you change the moment to the moment that you're publishing, then you don't have a public interest defence to the breach of the data protection, because you might have had a public interest defence to get the information to find it out you've blagged the information but if it actually gets nowhere, if it's inappropriate, then you still have to prove that you satisfied the statutory defence at the time that you're publishing it, I think.
A. So why can't that then be translated back into those statutes where currently there is no public interest defence at all? LORD JUSTICE LEVESON Because you're talking about a different moment in time. You're talking about the commission of that crime as you commit it, not as you seek to obtain the fruits of it.
A. Then maybe, if there is going to be a public interest test in statute, it could be framed in such a way that it does the job that you're asking it to do. If it's a question of which moment in time we're looking at I mean, I entirely accept that it needs to be proofed against abuse and that there is clear evidence that there might be those who would seek to abuse it. LORD JUSTICE LEVESON Yes, Professor, people can criticise me for not being an expert in lots of things. 40 years in the criminal law actually must allow me to say I know something about that.
A. This is where I do not feel on safe ground, I have to confess. LORD JUSTICE LEVESON Thank you very much indeed.
A. It's a pleasure, thank you. MR JAY Our final witness today is Mr Sprake. MR MATTHEW GORDON FRANCIS SPRAKE (sworn) Questions by MR JAY MR JAY Your full name, please, Mr Sprake?
A. It's Matthew Gordon Francis Sprake.
Q. And you're the director of a company called Newspics Limited; is that right?
A. I am, yes.
Q. You've kindly provided us with a witness statement pursuant to a statutory notice. The statement, from the version I have, hasn't been signed by you, nor is it dated. Can you confirm, please, when you provided it?
A. It was provided on 12 July.
Q. Is that statement true to the best of your knowledge and belief?
A. Yes, it is.
Q. Can you tell us about yourself, please? You are a professionally qualified photographer. You obtained a Btech national diploma in that discipline in 1989 and have been a published photographer since 1984. You worked in the Metropolitan Police as a photographer for ten years; is that right?
A. Yes.
Q. Between 1990 and 2000. Then you moved to another business and then set up your own business in the year 2003?
A. Yes. The business was set up as a fully operational business in 2003. It was formed in 2001, when the company that I worked for straight after the police went out of business and I worked for them as a subcontractor. So the company was legally formed in 2001 but fully operational in 2003.
Q. Main areas of business, please, that Newspics Limited is involved in?
A. It's PR photographer, news and features photography and studio photography.
Q. Apart from yourself you're the managing director how many persons does it employ?
A. It employs two other full-time members of staff and we have a team of freelance photographers who work for us on a shift basis as and when required.
Q. Approximately how many freelance photographers?
A. All over the country? In the region of 35.
Q. How do you check their credentials?
A. Most of them come from a background of local newspaper work. I don't employ many photographers that work for other national newspapers because some of the sensitivity of the work that we do needs to be kept within a small team of people that won't disseminate that information to other papers for obvious reasons. I like photographers to be professionally qualified. Unfortunately, some of the best photographers out there don't have professional qualifications they just happen to be very good photographers but their work is very much checked before they're taken on by us.
Q. Do you and your photographers abide by a code of practice?
A. We do, yes, the PCC Editors' Code of Practice.
Q. We may come back to that issue. The first substantive question were you asked this is our page 02065, under question 3, Mr Sprake relates to the surveillance services which Newspics offers. Can you explain, please, the type of surveillance work you carry out for media organisations, in particular the printed press?
A. Sure. Most of the time a story will come into a newspaper and they will contact us to verify the truthfulness of that story. We're sent out with some basic information about what the story might be. It could be any number of reasons, and we're sent to prove or disprove that story, basically.
Q. Are there any other circumstances in which you carry out surveillance work?
A. If a story has been written about somebody, we could be sent out to create what is called a snatch photograph which is a photograph taken of somebody in a public place without them knowing. We could be sent out to see if somebody is doing somebody interesting. If a story is planned to be written about somebody, we could be sent to see if somebody is doing something interesting around that story, and like I said before, just to show what people are doing, really.
Q. All your photographs are taken, I take it, without the knowledge of the subject of the photograph?
A. Most of the time, yes.
Q. What sort of lens do you use?
A. We use primarily I normally use a 70 to 200, which isn't a particularly long lens. The longest lens I have is a 300 ml lens, which again, isn't a particularly long lens.
Q. What's the range of a 300 ml lens?
A. A full length picture you can get nice and clear about 500 yards.
Q. So although not a long lens, by most people's terminology it is capturing a photograph from a distance, isn't it?
A. Yes.
Q. You say you take photographs of people on public property.
A. Mm-hm.
Q. Do you take photographs of people when they might have a reasonable expectation of privacy?
A. Several sets of pictures that we've taken have not been used because they've been taken on private property. So I would say no. We know that we have to let somebody come out of their driveway, for example, onto a pavement, before we can publish a picture of them. So no, I wouldn't say that. LORD JUSTICE LEVESON You mentioned the length of your lens, but do you have any control over the length of the lenses used by the 30, 35-odd photographers who you employ?
A. No. No, I don't. I know that most of the photographers that I have would have a maximum of 400 ml lens on the work that we do, no larger than that. If you're getting into lenses longer length than that, it's quite specialist equipment and I don't know of any of our photographers who have more than a 400 ml lens. MR JAY What's the range of a 400 ml lens?
A. Slightly longer than a 300. That sounds a flippant answer, but it's not that much longer. It would be a sports photographer's lens. You could fill, from one end of a football ground, the goal, full frame, at the other end of a football pitch.
Q. You mention that sometimes photographs have been rejected because they were taken on private property. Presumably rejected by the ultimate client; is that right?
A. By the newspaper, yes.
Q. That presupposes that the photograph will have been taken of someone who was on private property at the material time. Is that not the case?
A. Possibly could be.
Q. Possibly or certainly?
A. We have had a set of pictures of people taken on private property which have been turned down by the paper. So yes, some pictures have been taken on it's a difficult answer to say somebody on private property. If we would be on a public area, but somebody might be walking down their drive, and if they walk down their drive and walked behind a hedge, those pictures would be deemed to be on private property so wouldn't be published.
Q. Are you dependent on the discretion of the client or do you form your own discretion in these matters?
A. No, I think we form our own discretion.
Q. Do you take photographs of people in restaurants or other public places where they might have a reasonable expectation of privacy?
A. Through the window?
Q. Yes.
A. I'm trying to think back over the years. I don't think so, no.
Q. Do you take photographs of people when they're in their private motor vehicles?
A. Yes.
Q. You've provided us with details of all surveillance work undertaken for media organisations over a two-year period, July 2010 to June 2012. Can we just have a look at this. LORD JUSTICE LEVESON Could we take this off, please. MR JAY We have prepared a redacted version which didn't have the names of the subjects. I don't know what's happened to that. LORD JUSTICE LEVESON Do we have a version that's been redacted? THE TECHNICIAN No, sir. LORD JUSTICE LEVESON Right, we'll do without it. MR JAY We're just not going to look at it then. The clients primarily the People newspaper; is that right? But of course, before it disappeared, the News of the World?
A. Yes.
Q. Do you tend to deal with one person at the People or is it a range of people on the picture desk?
A. It would always be the picture desk, a variety of people.
Q. You've also worked, on a couple of occasions, for the Mail on Sunday and the Daily Mail. Can you remember who you worked for on those occasions?
A. I don't know accurately who it would have been that booked us for the actual job, but I do know people that work on the Mail on Sunday.
Q. Now, the range of topics, ignoring the identity of the subject, you can see on the right-hand column under the rubric "Objective". Do you see that?
A. Yes.
Q. These are all matters which really bear on the individual's private life, it might be argued. Would you agree with that?
A. Yes.
Q. Do you believe there are any ethical issues which arise in connection with that?
A. Whether the story is true or false would be an ethical issue I would raise, in that somebody has phoned the paper with information which, most of the time, it has to be said, ends up being not accurate at all, and we prove beyond doubt that that information is not accurate a lot of the time, and a lot of effort is put into making sure whether a story is true or false.
Q. Establishing truth and falsity I understand to be ethical issues, but there might be a wider ethical issue as to whether the subject matter of the story and/or the methods you deploy amount to intrusions into individual privacy. Do you take those issues into account?
A. I do take those issues into account. If the story's not true, then nobody would ever know that we were there working on a story anyway, and if the story is proved to be true, then that's a matter for the newspaper to decide whether to publish it or not.
Q. If a story is false, we don't, as it were, move to the next issue. But a story can be true, yet there is an unwarranted intrusion of privacy in obtaining it in the first place. Do you analyse that issue in any way?
A. Well, again, most of the photographs that we would take would be in a public area. If, for example, two people if there was a suggestion that two people were having an affair, the photographs that we would obtain would be of them out on the street in a completely public environment. So it wouldn't be intruding into their privacy because they're there in a public arena.
Q. So you confine yourself then to photographs of people in streets, do you?
A. Yes. Yes, I would say so. I mean, if two people were in having an affair and went into a hotel, I can't think of a time when I've followed them into a hotel and followed them to their room, for example, if that's the sort of angle that you were looking at. I can't recall a time when we've done that.
Q. One example we have, 13 January 2011 the method used is "body-worn camera" and the objective is "spending their bonuses on a big booze up".
A. Yeah.
Q. You don't actually name the subject in terms of personalising it. It's just described, I can reveal it therefore, as "city bankers". So it could be any range of people falling into that category, but if you're using a body-worn camera, you're likely to be in some sort of bar watching people drinking champagne. Isn't that the
A. It would be in a bar with some sort of covert camera, yes.
Q. Do you think that's ethical?
A. I think it's an answer for the newspaper, really, rather than us. We're tasked to provide the evidence. Somebody has obviously phoned the paper and said, "These bankers are coming here tonight to spend heavily." We prove or disprove it. And on that particular job I remember that job it was completely false. It didn't happen.
Q. I dare say very often these leads end nowhere and the story is false, but it sounds from your evidence, Mr Sprake, that really you don't take the ethical judgment so much as you delegate it to the ultimate client to decide what to do with your pictures. Is that a fair characterisation of your thought process?
A. No, there are occasions when I would decide that it wouldn't be appropriate to take a picture.
Q. In very clear cases?
A. It's a moral situation for a human being at the end of the day. It's whether you decide morally whether that picture should be taken or not. At the end of the day, if you have a client who has been given a story and you are asked to provide the evidence as to whether that story's true or false, you need to do what you can to prove the innocence or guiltiness of whatever that story is, and most of the time the effort is put in to prove that the story is completely false.
Q. Your intention is not to prove truth or demonstrate falsity; it's just to see where the evidence leads you?
A. Gather evidence basically, yes.
Q. It sounds as if the main moral standard which is guiding you is that which is whether the story is true or false, rather than whether there's any earlier question of the means used to obtain the photograph in the first place. Is that fair?
A. That would be the ultimate outcome, yes, to prove truth or whether it's true or false, yes.
Q. There's another case where you used a body-worn camera. This time we do have an individual. It's 23 September 2010. We're not, of course, going to name the individual, but the objective was: "She's a drug taking prostitute."
A. Mm-hm. Yes.
Q. I'm going to ask you to be careful not to intrude into the privacy of the individual
A. Yes.
Q. but can you remember anything about how you took those pictures?
A. It was a meeting with an individual in a hotel room. A story had already been written about this individual and video footage had been obtained of her in the circumstances which I've outlined not by us, but another newspaper and we had attempted to interview this person and to gather evidence about what she said or did at an interview, there was a video cameras placed in the hotel room. As it transpired, that individual decided to do a full sitdown interview and was paid for her story and that equipment wasn't needed. It was a full proper features job it turned into in the end, where that person admitted to her mistakes, admitted to her remorsefulness about what she had done and the story went in that direction rather than what it could have gone into.
Q. Yes, so where it could have gone is you using a covert video camera in a hotel room; that is right, isn't it?
A. Yes.
Q. That clearly would be unethical under the code, wouldn't it?
A. Again, it would be gathering evidence. It's video evidence as opposed to using a dictaphone. Video pictures work better, obviously, in a newspaper than an audio file, so it would be pictures to go with the audio.
Q. Of course it's gathering evidence because this is all photographic evidence of one shape or form, but it's gathering evidence by a method which is unethical and to an objective to answer a question whether someone is a drug-taking prostitute which has little or no public interest in it. Would you agree with that?
A. Yes, I probably would.
Q. Okay. The vehicle surveillance examples, of which there are a lot. That means you're in a car, someone's along the street and you're trying to take your snatch photograph; that's what it boils down to?
A. Yes.
Q. How much do you tend to get paid for these photographs?
A. We get paid a standard shift fee, which is a daily wage, basically.
Q. You don't get paid by the result; you get paid by the time spent?
A. It doesn't matter what the result is for us. We get paid for our time. So it's no bonus to us whether the story is true or false or whether we get a set of pictures or we don't. We're paid to work on a story.
Q. Do you sometimes take pictures on spec, in this sense: that The People send you out to watch a particular person and see what you can get, but you happen to go out, obtain a photograph of a celebrity maybe from a distance and then try and sell the photograph around various news outlets?
A. Very rarely. We're quite unique in the way that we work. We don't do a great deal of that. If we do that sort of work, it's normally with the consent of the celebrity that we're working with, and then we take those pictures around ourselves. But most of our work is commissioned by a newspaper.
Q. There are occasions, you explain, that celebrities come to you with photographs and want to sell them, in the sense that they want you to help place them; is that correct?
A. They ask us to take photographs of them, basically, to sell for them to raise their profile.
Q. How often does that happen?
A. Again, not very often. It's not an area of work which we're hugely into. There are other agencies who do that far better than we do. They tend to be friends of mine that work with us in that way. We don't set the agency up to be like that at all.
Q. Do you have any sense, Mr Sprake, about how widespread is the practice of celebrities selling information to photographers about themselves, or rather, allowing themselves to be taken by photographers with a view to commercial exploitation?
A. Yes, massive.
Q. Massive?
A. Most of the pictures that are taken of celebrities are done that way. I mean, set up shoots they're commonplace within the industry. They happen daily.
Q. Can you give us a sense of the sums of money involved for the photographs?
A. Depends on the celebrity. The largest one I've had is ?17,000.
Q. As your statement explains.
A. Mm.
Q. One core participant has asked me to ask you which celebrities have come to you, but I'm not sure that's a question which is entirely appropriate since, rightly or wrongly, that might be said to intrude into their privacy. Can I ask you, please, about what appeared on your website at a particular time? LORD JUSTICE LEVESON Before you turn to the website, I think it's right to say that had this document been available in its redacted form, the overwhelming number of these entries are for The People. There are about half a dozen for the Mail or Mail on Sunday. In each case, they are snatch photographs; in other words, to go back to your definition, obtaining a picture of a subject to whom the story relates without them knowing, to support a story that's been written.
A. Yes. LORD JUSTICE LEVESON The second question I wanted to ask was to direct your attention to the entries on one moment. (Pause) 26 and 27 July 2010. You've said you don't use long lenses. What's the method that's put on your document as describing what you were doing on those days?
A. Is this the methods that's titled "Long lens surveillance"? LORD JUSTICE LEVESON Yes.
A. Do you want me to give you the actual what we were doing and how and why we did it? LORD JUSTICE LEVESON I'm interested, given your evidence that you didn't use long lenses.
A. Yeah, this wasn't I can actually I can't tell you now at this instant, but we have software in the office which will tell me how long the actual lens was to do that job and it wasn't a particularly long lens. It would have been no longer than a 400 ml. The story was I think if I'm right in saying that that was the last sitting at the House of Commons and the suggestion was that the MPs were sitting out on the Thames drinking heavily and it was photographs of them out on the bank, taken from Westminster Bridge, drinking on the terrace. LORD JUSTICE LEVESON Yes, well, I only draw it to your attention because you gave evidence that you didn't use long lenses and yet you've chosen those words to describe the method you were there using.
A. Yes. It wouldn't have been longer than a 400 ml. MR JAY I think we've already established 400 ml would probably enable you to take someone from 600, 700 yards away, because 300 ml gives you 500 Yard, doesn't it?
A. Yes. LORD JUSTICE LEVESON All right. MR JAY So a really long lens might be over a kilometre, would it?
A. They make lenses, Mr Jay, that can shoot people from a mile away. They're not commercially available, but you can get a telescope lens that you can put on a block of flats. It's not something that I don't think anyone in the industry would use it, but technically you could a lens that's unlimited length.
Q. On your website there was an advertisement, I think would be a fair way of describing it LORD JUSTICE LEVESON Mr Jay, just for those who have been interested, the redacted document is now actually available and visible to those who are watching and doubtless can then be available in the normal course. MR JAY Thank you, yes. LORD JUSTICE LEVESON Right, thank you. MR JAY On your website, it said: "Do you know of a story, a scandal, something that made you interested? Chances are that a newspaper will pay for that information. Do you know where a prominent person is living or what they get up to? Is a celebrity having an affair that you know of? Do you know of anyone who is on reality TV? You can earn yourself good cash now by calling." And also this: "All sorts of people have made thousands of pounds by us for giving information that leads to a picture being sold or a story being written. Are you a doorman, police worker, civil servant, probation officer, prison officer or nurse? Make some extra money without anyone ever knowing."
A. Mm.
Q. Can we be clear, please, when were those advertisements on your website?
A. That was placed on the website when it was first built in 2000, 2001. I can't be sure of the exact date when that website went up. The website was redesigned in 2008 and the wording was left on there. It was something that was tucked away on the site. We're not a "sell your story" website. The website is a marketing tool, primarily aimed at PR companies and publications that book us for work, but companies look to sell stories. People can come to an agency and we would sell a story. We haven't sold a story to any of those people. People wouldn't be able to search that and find a "sell your story" website through our site. They'd go to other people before they came to us.
Q. If someone within one of these categories doorman, police worker, civil servant, et cetera or perhaps someone else altogether happened to look at your website, they could see, could they not, that that would be a nice way of earning money on the side, I suppose it might be described as?
A. Yeah, they could do. They could ring us up and tell us what the story is. That's needless to say that it wouldn't get published and it wouldn't go any further. The way the system would work is I would take that call myself. If somebody in the office answered the call, it would be passed on to me. I would listen to what was said, decide then how that information was obtained. If it was obtained properly, then that information would then be passed on to a reporter, who would look at that set of a reporter at a newspaper, not a reporter with their own company; we don't employ any reporters within our company passed on to a reporter in a newspaper who would look at the story again, decide himself the validity of the story and the legality of it, pass it on to his legal team before it went anywhere near a newspaper so there would be lots of checks done before anything like that happened but it's a hypothetical situation.
Q. You say it's never happened?
A. No.
Q. You said if someone phoned in with such a story
A. If they would, yes.
Q. it would be passed on to you, so there must be a system in place.
A. There is a system in place. Anything like that that's phoned in if somebody phones in with a set of pictures, it would always be passed on to me. We get phone calls all the time people ringing up and asking for footballers' addresses, for people's addresses that we've been looking at, and it's not something that the office deal with; it's something that's dealt with by me because of the serious nature of some of the things that are asked for.
Q. It sounds as if you do get loads of enquiries from people seeking to make money on the side, which you would then field?
A. No, it's photographers mainly that try to sell us their pictures. We get photographers who phone up with ideas for stories. They come straight to me. But as far as members of the public are concerned, no, we don't get anything like that.
Q. You get a member of the public with a camera who phones you, saying, "I can do this and that. I can take a photograph of X without their knowing. Can you help me with this? Can we sell it together?" I suppose that's what it boils down to?
A. But they don't come to us for that, because there are other companies which are far better set up for doing that than we are.
Q. Are you saying that that sort of phone call has never taken place?
A. Somebody ringing us up and offering us a set of pictures? Yeah, we've been offered sets of pictures. I was offered once a set of pictures from an A list celebrity's camera that was stolen and I passed it straight on to the police. It was obvious that the pictures that they were offering us were taken from a stolen camera. And that was an American A list celebrity. LORD JUSTICE LEVESON I'm sure you can understand why this particular offer which Mr Jay has just read out to you excited the attention of the Inquiry.
A. (Nods head) LORD JUSTICE LEVESON But I would be interested to know why you ever thought it was appropriate to put on your website that you were inviting nurses and prison officers and civil servants to provide you with stories, doubtless in breach of their duty, and make money out of it.
A. Again it's a hypothetical situation, but if a nurse, for example, was to phone up, would it not explaining that her patients in her care were being treated badly and that they were left in horrible conditions at her hospital, would that not be a story that would be in the public interest and be interesting? It wouldn't be my decision whether that story went forward to be published or whether that nurse got paid. It would be a decision for a paper and a legal team at a newspaper to decide. LORD JUSTICE LEVESON But Mr Sprake, you chose to put this offer on your website.
A. Mm. LORD JUSTICE LEVESON Are you saying that you were only interested in public interest stories? And if so, why didn't you put that?
A. It was a mistake. LORD JUSTICE LEVESON Or is this just total aberration?
A. It was a mistake to put the wording on there. MR JAY Well, the wording we see and I've read it out once already is: "Do you know of a story, a scandal I suppose a "scandal" could just about cover a public interest situation: something that made you interested?" That wouldn't necessarily: "Chances are that a newspaper will pay. Do you know where a prominent person is living or what they get up to? Is a celebrity having an affair?" So most of this is nothing to do with the public interest.
A. It's 12 years ago. It was a very different environment than it is now, and when that website was first created, probably it would be acceptable to have spoken in those terms. Now obviously it's totally inappropriate. LORD JUSTICE LEVESON Well, probably if the code was there, it wasn't acceptable then, whether or not it was got away with.
A. Mm. LORD JUSTICE LEVESON Yes. MR JAY The categories we see: a doorman, a police worker, a civil servant, a probation officer. These are all people who have access to individuals. It might be a doorman of a hotel.
A. Yeah. Doormen do tip photographers off. They don't tip us off because we're not that sort of company
Q. You are, aren't you, because you've got this on your website?
A. But
Q. Police workers there are all sorts of possibilities there but it might be a celebrity under suspicion by the police, it might be a celebrity who's just suffered a burglary and a victim of crime. Civil servants well
A. That would be totally inappropriate to take any action against that, because that person would only know that because of the job that he did.
Q. Is it a coincidence that the website was removed on 4 July of this year, which was very shortly after an article appeared in somewhere called ExaroNews relating to your business?
A. No, I removed the website on purpose when that story came out because of the inappropriateness of the wording on the website and how out of date that website was. The website was "broken" is the kind of easy term to use, in 2010, because the company who made it were unable any longer to operate the database editor for the website. So from that date onwards, we were not able to edit anything on that website. The website we were trying to get it fixed, but we've had to get it recommissioned and it's almost finished being redesigned. The work's been going on for the last 14 months on that website, to get it redesigned and put back up. The reason we didn't take it off is because primarily that website is advertising PR photographer services, which it is a major part of our business. Since taking the website off, we've obviously lost all of the work we've put into the Google ad campaigns on that site. So it was a commercially suicidal decision to take it off.
Q. Were you sent by a newspaper I can name it, the People to track the McCanns when they were on holiday in Canada in 2008?
A. I was sent to try to find the McCanns on holiday in Canada, yes.
Q. And obviously with one of your we can call them long lens cameras LORD JUSTICE LEVESON Medium-length lens. MR JAY Medium length with quite a long range. Is that
A. I wouldn't have taken a long lens on a foreign job, no.
Q. One of your 300 millimetre lenses?
A. No it would have been a 70 to 200, which it is a standard lens in anyone's Kit.
Q. Who did you go with? Did you go with a journalist from the People?
A. Yes, I did.
Q. This was Mr Jones, was it?
A. Yes, it was, yes.
Q. What was your brief?
A. The McCanns were going on holiday for the first time without Madeleine and to find them.
Q. And then do what?
A. Photograph them.
Q. Did that cause you any concern whatsoever?
A. I have to be careful what I say because of where we are, but I recall a conversation as to where the information came from, that they were in Canada, and it came from a source close to the family. So at the time I felt it was appropriate, bearing in mind, with the McCanns, there was a feeling that publicity keeping Madeleine in the news was helpful to the cause of finding Madeleine.
Q. But if they wanted to be photographed with that objective, they simply had to pose for a photograph. Could you not agree?
A. No, because it doesn't work that way. We get tips from celebrities who tell us that they want to be photographed, but they want to make it look like it's not been set up for the newspaper. That is also something that happens regularly, so it doesn't look like they're colluding with a newspaper. In fact, I got criticised by somebody on a website after the pictures were published of the McCanns saying that I'd worked with the McCanns to set that set of pictures up, because it looked so set up that I was accused of setting it up with the McCanns.
Q. The photographs you refer to were taken at Vancouver airport, weren't they?
A. Yes.
Q. Were they set up pictures or not?
A. No, they certainly weren't set up by me. There were things about those pictures that did look set up. The way Gerry McCann was carrying his daughter, for example, was a very striking image. I wouldn't know whether something had be set up with the newspaper or with an agent or how it had been done, but the set of pictures that we got at the airport weren't set up by me, no.
Q. I think you were also involved, with the same journalist working at the People, with a number of stories which I think we can call fake bomb stories. So someone goes into Sandhurst, for example, where a prince may or may not be at the material time. They have a fake bomb on them of course, it's not real Semtex, it's marzipan or something, which arguably looks like Semtex and then a whole story is created around this on the basis that security is lax because look how easy it is to get into Sandhurst or whatever.
A. Yes.
Q. Have you been involved in a number of those stories?
A. I have, yes.
Q. What is the public interest in those stories?
A. Well, you could argue, like you say, that it's highlighting security breaches. I would have personal opinions on that.
Q. What are they?
A. That marzipan would get through a bomb detector; Semtex would not.
Q. So it's a pointless and stupid story, isn't it?
A. Yes.
Q. Do you take photographs as part and parcel of the story?
A. Yes.
Q. On, I suppose, private or semi-private premises, then? Is that right?
A. Well, that's a very tough definition because it would have to be a public area for us to be able to get into. We wouldn't be going anywhere that was private, no, so it's not really a private environment. It's an open area. At Sandhurst, for example, the idea was was that there was a speech podium which a member of the Royal Family would go and stand at to make a speech, and you could openly go up to the podium and the supposition was that you could put something behind the podium.
Q. So to give colour to this pointless story, you take a photograph of the podium; is that what you're saying?
A. Yes.
Q. What about surveillance that you undertook in 2007 of the then head of the anti-terrorist squad? Can you help us with that? That was of an alleged affair he was having, wasn't it?
A. Yes. Yeah, that was I can name him, can I?
Q. It's in the public domain, so well, let's see if we can handle this evidence without naming him, but I think everybody knows who he is. It was alleged that he was having an affair with a married women; is that it?
A. Yes. There was a story that came into the paper that this prominent police person in charge of special operations at the time at New Scotland Yard was having an affair with somebody who worked at the Independent Police Complaints Commission. At that time, that police officer's department was being investigated by the IPCC for a very serious incident which took place in London, and that, as far as I understood it, was the public interest angle on the story. So I was sent to photograph the lady involved in the story to ascertain whether she was still married to her husband, who was a serving police officer himself. So I went to the home address and took a photograph of them leaving their home address together. We then I was then told to go and follow her from work that evening, which I did. I followed her to a pub in Liverpool Street called The Griffin I understand it's called The Griffin where she did indeed meet with Andy Hayman. They had drinks.
Q. This is the police officer we were going to keep anonymous, doing the best we can.
A. I'm sorry.
Q. It doesn't matter, because we've worked out who he was. So did you take photographs in the pub, then?
A. No. We watched them discretely in the pub. A journalist joined me in the pub to watch them to see what they got up to, basically. They had drinks. There was no real intimacy, nothing that could prove an affair. They could well have been meeting for work purposes. It was one of those meetings. So they left separately. That was the end of that day. The next day, same thing again. Didn't do the home address this time. Went to her work, followed this lady to another pub near Liverpool Street station, where, again, Andy Hayman turned up 15 minutes after her, they went in the pub and had drinks together. The pub at that point was slowly filled with reporters from the paper to watch what was going on in the pub.
Q. Right.
A. The couple left. I took photographs of them as they left the pub and off they went on their separate ways. That was the end of the job. There was nothing there that really proved that they were having an intimate affair. I think it was months later a TV programme revealed the affair, named the lady, named him. That made the pictures then relevant again. We asked the paper, you know: "We've got it these pictures. Are you going to run them?" I was told: "No, not interested, so you can sell them", which would be common practice. After the paper's finished with them, we can sell the photographs. I started to ring papers. I phoned the first paper, which was the Mail on Sunday, just because it would be a story that they would be interested in, and I was made an offer and it was a good offer.
Q. How much did the Mail on Sunday offer you for these photographs?
A. ?10,000, straight away.
Q. I see.
A. So I phoned the paper back and I said, "Are you really sure that you want these to go? I've just been made a really good offer. Do you not want to reconsider?" Which they did, and they did a share with the Mail on Sunday. The People published the pictures and so did the Mail on Sunday, and they ran on that Sunday. I found out afterwards that other people had been working on the story as well. There was another team of photographers that had been working on that story too, so it wasn't an exclusive. I think MailOnline tend to gather up everything that's out there and later on in the day more pictures of them appeared of them together, which was a surprise to me.
Q. Of the people you employ, are any of them former or serving police officers?
A. Former or serving police officers? No. No. I've got I used to have one former police photographer I wasn't ever a police officer; I was a civilian member of staff, and there was one photographer who I did employ that I used to work with, who doesn't work with me any longer.
Q. The job you were telling us about, the surveillance of the senior police officer, who tipped you off?
A. It was a story that came to us from the newspaper.
Q. From the newspaper?
A. Yes.
Q. Finally, Mr Sprake, have there ever been circumstances in which you've had to sack any of your contractors?
A. Absolutely, yeah. I've sacked two good photographers because they've not kept to my standards, which I strongly believe in. The two situations were I had a guy one night was out working this is years ago and he photographed a girl that was in "Big Brother", followed her down the road, backed her into a doorway and carried on photographing her, even though she was showing obvious distress. I got the pictures in the morning and it wasn't something that I like to see. This girl was crying, obviously upset, very distressed, and I sacked him. It's not the sort of pictures I want to see coming into our agency. The other situation was the photographer that I used to work with who was one of the best photographers I've ever had working for me. He's a very skilled worker, I respected him a lot, he was a good friend of mine and we were asked to do a job by a celebrity. It was going to be a meeting between the celebrity, his celebrity girlfriend and the parents, the first time they'd met. It would have been an interesting story at the time for a tabloid newspaper. I was asked it was all set up to do. We'd told our paper that we were going to do that. It was going to be a great set of pictures. It was going to be an exclusive. It basically proved that the relationship was real. I was told in the afternoon by one of the celebrities involved in it: "Please don't do it. My parents don't want to be in the paper. It's a private matter. It's going to be a private meeting. Don't do it." I called the photographer off. He decided that he was not going to be called off, he wanted to do it himself. On the Monday, pictures appeared in the Daily Mirror and it could have only come from one person. So I phoned him up and sacked him. I can't have people doing that. That was a blatant breach of privacy. I got asked not to do it and we carried on and did it, and I got rid of a good guy because of that. But a lot of effort is put into the work that we do, you know, to prove whether stories are true or false. Newspapers get phoned all the time. People ring up and they say, "This is happening, that's happening and the other thing's happening". 80 per cent of the time it's absolute rubbish. If I can just bring there's one example that I'd really like to share with you.
Q. Yes, please do.
A. One afternoon, Manchester United played Sunderland. Alex Ferguson made a comment at the end of the game in his post-match interview and said, "Alan Wiley is not fit to referee this game. He's tired, he's unfit. It's almost like he's been out to a party." A set of pictures gets sent into the People newspaper of Adam Wiley dressed as Buzz Lightyear. Great set of pictures. I think they phoned his wife and his wife almost verified it was true. At least she admitted that he'd been to a fancy dress party. Those pictures were laid out on the front and back pages of the paper because it was a fantastic story. Somebody at the paper said, "I don't like this. Something's not right with these pictures. Something doesn't add up here." So I was sent to Adam Wiley's home town and a colleague of mine was sent up there, and we spent five days proving whether these pictures were actually taken the night before, speaking to fancy dress costume hire stops, speaking to parties venues. We found the party venue where the party was, and the guy told me: "Yeah, there was a party the night before the game, but if somebody had turned up as Buzz Lightyear, I'd have remembered it because it was a normal party." So I rang the guy, who was trying to sell these pictures for a lot of money to the paper, and said to him: "Look, we're up here. Give us a hand here. We're trying to make this work for you. What is the story with this?" And he said to me: "Do you know what? I thought papers published stuff. They just published it. I didn't think it had to be true. I thought papers just made it up. I had no idea that you would come here and spend all this time." He knew that we were there for five days, working on this story. He had no idea that we would work at proving that that story was absolute rubbish and I got him admitting on tape that those pictures were taken in the summer football break. There was no games on either side of that party, and that was nearly an innocent man going on the front page of one of Britain's biggest-selling Sunday newspapers. So that's the effort that we go into to prove whether a story is true or false, and sometimes things have to be done to gather evidence, but most of the time they're in the favour of the people who supposedly their friends or people they know are ringing up to dob them in about a story.
Q. Sometimes things have to be done to gather evidence. Could you help us, please, with what those things are?
A. You have to go beyond the call of duty and be very professional with what you're doing and you have to absolutely accurate. Like I said before, there's no gain to me whether a story doesn't work or does work. I'm doing my job to prove
Q. The touchstone is truth or falsity. I understand where you're coming from. But if sometimes things have to be done, what you're telling us is sometimes the rules have to be bent or ignored, don't they, in order to get to your higher goal of establishing truth or falsity?
A. No, it's not. If it means using a body-worn camera there are laws regarding surveillance. RIPA, for example, which is the Regulation of Investigative Powers Act, okay.
Q. We've heard of that one.
A. Right. Well, there's nothing that we would do that would break the law under RIPA.
Q. Of course.
A. If I went to interview you and I sat and I had a camera in my tie and I video'd everything that we said, the only thing that's different between that and a dictaphone is that I have pictures of you. A reporter in the normal course of his duties would be expected to record an audio of the conversation, so all I'm adding is video footage to that. If I leave a camera in that room after we've finished our chat and that video camera is transmitting images to my van, to me, to wherever I haven't even got that kit, but if that happens, that is blatantly breaking the law under RIPA. Well, we don't to that. We're only gathering the evidence. If somebody is selling which is illegal say, somebody is selling identity cards and that's happening in a house. Audio footage is not going to pick that up. A video bag will. It proves that that is happening. You can't run a story without that all he's going to say is: "Show me the evidence. Show me the evidence that I actually sold you that passport. Show me the evidence I've actually sold you that gun." Because we've worked on stories like that, where hitmen have been offering to kill people for ?5,000 and we've given our evidence, evidence of a gun being shown to a reporter inside a house. That man has been arrested at 6 in the morning by SO19 firearms officers and he went to prison. We've followed police officers who have been grooming children on the Internet. We've met them. We've followed them back to their police stations. I followed a guy one night and he got off at Seven Sisters tube station and flashed a warrant card to the guy on the underground system. I had no idea that he was a police officer, but he flashed a warrant card and then walked back to his police station. These are the people that we're dealing with and that is surely public interest.
Q. You don't see any of those people on the list we were looking at earlier. Those were all celebrities, weren't they?
A. They're earlier jobs. I mean, I can give you all those examples. I mean, the guy that looks after the scrapyard that holds the Lockerbie aircraft, he was selling bits of the aircraft off to souvenir hunters. If I get a camera out and photograph him, he's not going to sell me that aeroplane part. But we bought parts of the Lockerbie plane and he wouldn't have done that if I'd have held a camera in his face. I've been beaten up in the street by having a camera out because members of the public think that we are some sort of criminal because we're photographers. It is that bad. Security men think they can throw us in bushes and up against walls and beat us up just for having a camera out. I feel far safer in the back of my van with a hidden camera. I really, really do. And at the end of the day, all we're trying to do is prove the truth, because somebody is phoning in a false story. MR JAY Yes. LORD JUSTICE LEVESON Could I ask a slightly different question? You've said that you subscribe to the principles set out in the Editors' Code.
A. Absolutely. LORD JUSTICE LEVESON But to whom are you accountable for the exercise of that judgment? You're not in the PCC.
A. No. I belong to the Chartered Institute of Journalists, and as a member of the Chartered Institute of Journalists, I have to abide by the PCC Editors' Code of Practice. I believe also that we should abide by it. LORD JUSTICE LEVESON Is there a regulatory mechanism within that institute?
A. The Institute of Journalists? Yeah, their code of practice. If somebody feels that I'm not working in an ethical manner, they can report me to the institute. LORD JUSTICE LEVESON And what happens then?
A. I've never been reported so I don't know. Presumably they LORD JUSTICE LEVESON Do you know what the system is?
A. No, but I presume I mean, I belong to what I believe is the most professional journalistic institute that's available. LORD JUSTICE LEVESON All right.
A. The first if you refer to the PCC code of apparatus, the first point that they make in the PCC code of practice is: the press must take dare not to publish inaccurate, misleading or distorted information. That's number one on the PCC code of practice. LORD JUSTICE LEVESON Yes, okay. Thank you very much indeed, Mr Sprake.
A. Thank you. MR JAY 10 o'clock Monday. LORD JUSTICE LEVESON Right. Thank you very much. (3.43 pm)


Gave statements at the hearings on 08 December 2011 (AM) 18 July 2012 (AM) and 18 July 2012 (PM) ; and submitted 8 pieces of evidence
Gave a statement at the hearing on 18 July 2012 (PM) ; and submitted 1 pieces of evidence


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