Tuesday, 24 July 2012
LORD JUSTICE LEVESON
Yes, Mr Jay.
The statements we were going to read in yesterday,
which add up to 81. Some of them are replies by editors
to recent Section 21 notices. Others are more
heterogeneous, but I haven't been notified of any
LORD JUSTICE LEVESON
In relation to the editors, these are
the responses to our request for comments on the
suggestions before the Inquiry from Lords Black and
LORD JUSTICE LEVESON
Thank you. Right.
Has anybody devised an order of batting for today?
Yes. It's Mr Sherborne, I think, then Mr Caplan
and Mr Rusbridger, and then finally Mr Rhodri Davies.
LORD JUSTICE LEVESON
Thank you very much.
Closing submissions by MR SHERBORNE
Thank you, sir, and thank you again for
agreeing to accommodate me personally today.
When I rose to my feet back in November of last
year, I outlined a picture of a press, or at least
certain sections of it, which, through a catalogue of
wrongs, systemic, flagrant and deeply entrenched as they
are, had lost the confidence of the British public
entirely. That is why this Inquiry was set up, let us
It wasn't simply the fact that one newspaper group
had authorised its journalists to hack into the private
messages of a murdered teenager's telephone, an act
which had caused public outrage, but rather this was the
final straw in the groundswell of public opinion which
saw the press as being out of control, a press which had
become so complacent in the belief that freedom of
speech has given them carte blanche to disregard or
sacrifice the rights of those whose private lives they
choose to write about in the interests of selling
Indeed, if you read the written submissions, as
I did, of one of the biggest media organisations, you
would think that nothing wrong had been done at all,
apart from the hacking of some phones.
Despite the powerful account given by just a sample
of those who have suffered the most blatant of
intrusions into their private lives, or whose characters
have been assassinated by the press, all too eager to
become judge, jury and executioner, the print media
still advocates a law or framework of greater press
At the heart of this sits not just the continuation
of a system of self-regulation, with the same old mantra
that, "The press will behaviour this time, honest",
based on an irrational fear, we say, of any kind of
statutory underpinning, but also the widening concept of
As the Inquiry will recall, a critical part of my
opening submissions was the demonstration of how the
culture, practice and ethics of the newspaper industry,
especially in the more commercially successful area of
the market, had led to routine invasions into the
private lives not just of those well-known and those
connected with them, but also those who have found
themselves thrown into the public spotlight, often
The public concern which this has caused was, as
I said, the very reason why this Inquiry was set up in
the first place. The answer to this concern is
certainly not to be found either in greater press
freedom or in the dilution of the test for public
interest as being the justification for the publication
of material which interferes with the rights of
individuals to respect their private lives.
Let me not be Delphic about this. I'm here neither
to bury nor certainly to praise the media. That's not
to say there are not good and responsible journalists:
there are, lots of them. This Inquiry has heard
evidence from some of them and you don't need me to tell
you who they are. But we are not here to focus on the
good journalists, we don't need an Inquiry for that. We
are here to consider the bad ones, or the bad examples
of journalism right across the board and what they show
about the culture, practices and ethics of the press as
Sir, I know you're at pains not to say this, but we
do: the press is on trial here, and not simply in this
room but also out there in the court of public opinion.
After all, that is where the demand for this Inquiry
started, and they know that. Of course they do. That
is why they're so scared of what evidence has been heard
here, and most importantly, how it will be perceived
outside. That is why they've employed the megaphone of
the pages of their newspapers rather than the serried
ranks of lawyers sitting here dutifully day in, day out,
when a particular egregious example of misconduct has
meant that the best behaviour they've tried to present,
whilst under the microscope of this Inquiry, has
slipped, and I'll refer to some examples in due course.
The charge sheet is one which I read out in my
opening, and I have one or two things to say about it
shortly. Although understandably, sir, you've
repeatedly said you are not concerned so much with the
specifics of who did what to whom and when, the fact is
that it is only through examples such as that that one
can assess what the culture, practices and ethics of the
press, or at least a certain section of them, are.
I will remind you of some of those examples we have
seen, memorable as they were, because to some extent
over the last eight months, what has been lost is the
voice of the victims, as is often the way in any trial.
No doubt the press have breathed a sigh of relief
as, with intermittent exception, for the last several
months this Inquiry has focused more on what the press
want to say, what they want and what they don't want to
Some eight months have passed since this Inquiry
started, and whilst it is clear to those such as myself
who practice in this field that the media have had one
eye on what has gone on here and the fact that the
spotlight is so intensely on them, nothing has in fact
So part of my task, with the small voice that we
have as victims, as representatives, in one sense, of
the public, the only voice here in that respect, is to
remind everyone in this room, as well as those watching
it outside, who have become so accustomed to some of the
outrageous behaviour which brought us to this point,
that it has no longer the capacity to cause outrage, why
it is, as I say, we are all here and what the point of
Because we must not forget, unless something is
done, unless real change happens, as I said at the
outset, and someone, whoever that may be, takes a grip,
a very firm grip, on the tabloid press, we will be back
in the same position as soon as the spotlight in this
room is turned off and the ink has dried on your report,
And it may be worse, because we are all concerned
that it might be payback time. Payback for those who
have sought to stand up against certain newspapers, who
have sought to exercise the very freedom of speech which
the press themselves invoke to justify the great
privileges which they enjoy. We have already seen signs
of this during the course of the Inquiry, but hopefully
the press will resist the temptation once it is over.
Anyway, that is a glimpse of the future, or one
possible future. Now let us remind ourselves of some of
the examples of the evidence we have heard.
As those who witnessed the first seven days or so of
Module 1 of this Inquiry, for that is all that it was,
will agree, it is no exaggeration to say that the
evidence which was heard from the selection of victims
who came here to recount their personal and often very
painful experiences at the hands of the press was truly
chilling. And those are not my words. That was the
description which the Prime Minister gave in his
evidence, and indeed he was right. Perhaps not quite in
the way he intended it, though, because it is this
evidence which we say should serve to have a chilling
effect, a positive chilling effect, on the press.
I'm sure we were all struck by a number of things
about this evidence, in particular perhaps by the fact
that many of these victims were not well-known. They
were ordinary members of the public, people such as Kate
and Gerry McCann, Christopher Jefferies or Sally and
Bob Dowler; people who had found themselves caught in
the crosshair of a press baying for more and more
stories, and were so devastated by the result.
I'm not going to repeat the roll call of individuals
who sat in that chair over there and who described how
their lives had been permanently scarred in the pursuit
of a good story, often where personal and private
tragedy had been compounded in the most public,
sensational and intrusive manner.
Each of us will have our own very vivid memory of
this, a particular example, for that is all they were.
For each one, we could have brought many, many more, as
I said in my opening submissions.
Whether it was watching the dignified but genuinely
distressing testimony of Kate and Gerry McCann, in whose
shoes none of us would walk, who were portrayed as the
murderers of their missing little girl, and who had to
listen as a succession of journalists came to try and
justify some of the most woeful journalism.
I say "justify". I don't imagine anyone here
thought that those hapless individuals who added so much
to the grief of already grieving parents came even close
to explaining how they could have written what they
But perhaps even worse than that was the episode
which the Inquiry thought it important to probe in
a little more depth, and that was the front page News of
the World story revealing sections of Kate's personal
diary written to Maddie. So personal not even Gerry,
her husband, had read it.
It was clear from the evidence we heard that the
editor deliberately tried to avoid telling the McCanns
that they had bought her diary, despite the so-called
"good relationship", despite how friendly they
apparently were with the McCanns. And one does wonder,
if that is the press' idea of a good relationship and
that is what they do to their friends, I ask
They bought it to publish, even to procure and to
pore through her innermost fears, hopes, things she
wishes she said or hadn't said. Can one think of
anything more intimate and more private than that?
Sometimes there are just no words which will do.
And this was the editor who had been brought in as
the new broom to sweep away the troubles of the past, we
heard, the regime that had brought you such journalistic
high points as hacking into people's private voicemails
or making corrupt payments to police officers,
et cetera, et cetera. An interesting insight into the
corporate culture of an organisation whose idea of
housekeeping is to sweep as much as possible under the
What about the evidence of Christopher Jefferies, an
English schoolteacher, a man of dedication and
distinction, whose life, like the reputation he'd taken
years to build, was ransacked by journalists drunk on
the taste, as I said, of a story too good to be true,
and certainly too good to check properly. Who could not
have been impressed with the fair and even generous
manner in which he dealt with having been monstered in
the most public and devastating manner possible?
Perhaps his account was all the more powerful for
having been told in that way. He certainly showed more
circumspection than those that trashed his life and
everything he held dear, without so much as a second
thought, or so it appeared from the individual reporters
who came here to defend the indefensible.
Or finally, perhaps, the raw emotion and pain of the
Dowlers, Sally and Bob, who not only found that their
missing daughter's mobile phone had been accessed by
a newspaper desperate to obtain an exclusive, regardless
of the fact that as the Surrey Police report shows, they
were prepared to trample all over a current police
investigation to do so. Someone also deleted her
messages as well once the police had secured the phone,
and there are only so many possible culprits.
But what perhaps was less known to those within the
Inquiry, and equally shocking, was the way in which
their private moment of grief, retracing the last
footsteps of their murdered daughter in an impromptu
attempt to obtain some form of respite from the public
gaze, because a photo opportunity for one newspaper,
which was too damn good to resist.
If it sounds a familiar theme to this Inquiry, it
should do. Sometimes not even a "no shoot" list, if one
really needed something so obvious in this case, would
do. Sometimes, as we will see, even the microscope of
this Inquiry is not enough to prevent.
As the Dowlers told us, somehow the newspaper knew
their movements, perhaps through listening to their
voicemails, and not just Milly's. After all, if you can
listen to the voicemails of a missing teenage girl, why
not also do so to her distraught parents? And what does
that tell you about the ethics of this section of the
There are other individuals we heard from, whose
lives had also been turned upside down, some of them
without even knowing why. For example,
Mary-Ellen Field, an impressive and loyal adviser who
was even bundled off to a rehabilitation clinic by her
employer who could not explain the leak of stories about
her private life in the press other than by the fact
that this trusted worker must have been responsible and
her denials must have been the result of some illness or
There was no condition and there was no leak. It
was just the friendly neighbourhood hacks down at the
News of the World doing what they called "screwing over
the phones" of a supermodel who was no doubt good for
a story or two. Lots of public interest there, you
might feel, and definitely a great advertisement for
freedom of speech.
And who paid the price for this? A woman who had
done nothing wrong but has had to live with the legacy
of this for years and years, and has had to fight to
have her claim recognised.
Or poor HJK, who just happened to be involved with
a well-known person, someone the tabloid media wanted to
know all about because he happened to be in the public
eye, which in this country apparently makes you fair
game, or so some of the journalists in that section of
the media clearly believe, given the evidence they gave
to this Inquiry.
And HJK also paid a heavy price for this. It is no
wonder that he asked for and was given anonymity, brave
as he was to come in the first place.
All of these people, ordinary members of the public,
if they don't mind me describing them as such, who came
to explain to you, sir, to all of us how their lives
were shattered by being caught in the crosshair of
a press which had so lost its moral compass.
And then what about those who by virtue of their
particular skill or talent have become well-known and
who figure in the public spotlight? Their lives have
also been made, to lesser or greater degree, difficult
or had serious impact on them by the behaviour of the
press in this country. And I make no apology for
mentioning them, however unfashionable or unpopular that
Is this, as I said, the price which they have to pay
for their success? For being good at singing or acting
or running fast or kicking a football and so on, as
opposed to being good with numbers, skilful with their
hands or even consummate at constructing legal
Whilst there are those who vehemently deplore the
hacking of Milly Dowler's voicemails or the phones of
Sean Russell, Josie Russell's father, or the victims of
the 7/7 bombing, or even Sarah Payne, a woman whose
cause, ironically, the News of the World even championed
in its last edition, full as it was with a final burst
of faded glory.
There seems to be less sympathy, however, with
people like Sienna Miller. She understands that, as
others in her position do. They will always be seen,
somehow, as whingeing celebrities.
But remember this, sir: she was one of the first to
take on the weight of News International in her
groundbreaking hacking claim, and look how many far more
influential people failed to have the courage to do
exactly the same. Module 3 was full of them. Unlike
the police or the politicians, she was not scared to
take on News Group.
It is people like her who were prepared to do what
they did, or journalists, good journalists, like
Nick Davies and others, who wrote about what had really
taken place in the dark days in Fleet Street, which led
to the rubbishing of the oh so convenient lie pedalled
by News International's most senior executives, that
this was the isolated work of one rogue reporter, and
led, therefore, to Sally and Bob Dowler discovering the
final outrage which provoked this Inquiry.
But it was other evidence which Miss Miller gave,
about what people in this country, whose talents lie in
a medium which the public want to watch, have to endure,
that is perhaps the legacy which she has left. Who can
forget her description of being abused, of being spat
at, of being chased down a road by a gang of men, who,
if they weren't carrying cameras, would have been
immediately arrested for assault? Freedom of speech,
you say? Licence to carry a weapon, more like.
This is nothing to do with public interest. Indeed,
so little of what we've heard about really is, although
again that makes me very unpopular for saying so.
And whilst this Inquiry will remember the
description which a number of well-known figures who
were brave enough to come here to give evidence gave, of
the highly intrusive way in which the media had treated
them, it was perhaps the account of how those near and
dear to them were made to suffer for the fact that they
happened to be related or close to someone who was in
the public eye.
The appalling story of Charlotte Church's parents,
for example, her poor mother, who despite the fact that
the News of the World were well aware of her
depression -- well aware because they'd listened into
her messages from her hospital visit when she tried to
commit suicide -- how they not only published the
graphic account of her husband's infidelity, but in an
act of the greatest compassion, blackmailed her into
giving an interview, making her bare the arms which
carried the marks of her self-harming with the promise
that this would avoid a far worse follow-up story about
I do wonder, sir, what sort of code, what sort of
self-regulation, would prevent that kind of journalism?
And then there was the story of Garry Flitcroft, the
relatively unknown Blackburn footballer, who shot to
fame at least in the legal world because of the
injunction he won and then lost, but should not have
done, to prevent his infidelity being splashed across
the print media.
Whatever you think of the rights or wrongs of what
he did, does anyone who heard his testimony truly
believe that the disclosure of this fact really served
any form of public interest, let alone the hounding of
his poor family?
Then there was his father, who we heard had come to
watch his son play football, something he had trained
for over years and years, not because Mr Flitcroft
wanted to be famous or to be a role model, but because
it's what he loved doing and was really rather good at.
We heard how, as a result of the abuse which followed
his son across the terraces, his father stopped watching
his son play, after 20 years of doing so. How his
depression worsened and he later committed suicide.
As I said before, uncomfortable for the press to
listen to? Well, then good, I hope it still is, because
nothing we say has changed.
Yes, these are just, as I say, examples of the sorts
of practices which are prevalent throughout the
commercial end of the print media. What did we hear
about? We heard about voicemail interception, of
course, but was this a practice, I ask, which was
hermetically sealed within News of the World? Of course
Evidence of this is difficult, I appreciate.
Mr Mulcaire only acted for News Group Newspapers, and
thank God he kept notes, albeit not particularly legible
ones. But anyone out there who believes it was just the
News of the World only needs to think about the other
evidence which this Inquiry heard, evidence from
a number of quarters about how the practice was
widespread amongst tabloid journalists. So widespread,
for example, it was an in-joke between the editors of
the two leading daily tabloids, the Sun and the Mirror,
at a press awards ceremony.
Mr Mohan, the editor of the Sun, was candid enough
to admit that the practice could not have been ruled
out, and the same was true of Mr Wallace, more recent
editor of the Mirror.
Whether, as I say, other newspapers were engaged in
it or not, or whether, more importantly, we can prove
now that they were, is not something you need to answer
necessarily for part 1. But you do have enough evidence
that everybody knew it was going on throughout the late
1990s and 2000s, and at best, turned a blind eye to it.
It was part of the tabloid journalists' armoury, of
which I'll say more in a moment. Part of tabloid
culture. It had its own name: screwing phones. We
heard about it from Paul McMullan, we heard about it
from James Hipwell, we even heard about it from
Piers Morgan, although, in his characteristically
fabristic(?) style, he denied any personal involvement,
despite the words that he'd written about Heather Mills,
who was forced to come and appear here in order to
And if her evidence wasn't enough to demonstrate the
personal knowledge of those in senior places, then
perhaps Mr Paxman added weight to that suggestion.
But, really, does there need to be any clearer
signal that this was rife amongst that area of the
industry than the fact that, unlike the Guardian, which
led the good old-fashioned journalistic investigation
into the scandal and was monstered for it by the tabloid
press, not to mention our friends at the Press
Complaints Commission, unlike the Guardian, the red tops
ran a million miles from the story, as they did from
reporting the findings of the Information Commissioner's
"What price privacy now?" report. Funny, that.
If nothing else, it tells you something about the
culture. In a dog-eat-dog world, where rival titles
fight a constant battle in a brutally competitive
market, the deafening silence of the tabloid newspapers
in the face of News Group's criminality speaks volumes.
But then, as I said, News Group's downfall was
Mulcaire's note-keeping. There are other Mulcaires,
other Goodmans, other newspapers, most of whom will be
breathing a sigh of relief, especially if part 2 of this
Inquiry doesn't happen.
But before those who say all the Inquiry has really
seen in terms of press malpractice is the hacking of
phones -- and believe me there are media organisations
that do -- let us not forget the other tricks of the
trade we've seen.
To add to hacking into private voicemail messages,
there are incidences of email hacking. We've only seen
the tip of the iceberg here. Operation Tuleta starts to
move into full swing, as DAC Akers said to this Inquiry
yesterday. We have seen now the use of messages even
taken from stolen mobile telephones, which appears to
relate to 2010, long after the so-called lessons should
have been learned.
And what self-respecting tabloid journalist would be
without the products of blagging? We have numerous
examples of it in Mr Mulcaire's notes. And then there,
of course, was the uncovering of Mr Whittamore's
activities, another man who thankfully kept a detailed
note of what he did and for who. Only he acted for
every title, practically, and we know the league table
of offenders, or more euphemistically, should I say, the
users of his services. I will turn to what was said
about Operation Motorman briefly in a moment when I look
at Module 2.
Then we have the equally covert skills of
surveillance men like Derek Webb, of whom we had the
almost comical suggestion that he was a journalist
because he was handed a press pass. Seriously. You can
give anyone a wig, but that doesn't make them
Then there are the more obvious visible practices
we've seen: blackmail and intimidation, doorstepping,
harassment. All of which are designed to interfere in
the most intrusive way possible with the private lives
of their targets, often at a time when they're at their
And while we're on the subject of harassment, it is
worth a word or two about one of the suggestions in this
regard which came out of the paparazzi agencies who came
to give evidence to this Inquiry, namely that the whole
problem of camping outside people's houses, chasing them
down the street, following them menacingly around,
driving recklessly through the streets of London and
thrusting cameras into their faces, all of that would
end, they say, if people signed up to a "no shoot" list.
I'm not against some voluntary acceptance by the
picture agencies that there are people whose names
appearing on such a list should mean they're off limits,
but with the greatest of respect, having been
responsible for all of the anti-harassment injunctions,
I can say with certainty that the individuals who
obtained these injunctions all made it plain before that
they did not want to be photographed, with lawyers
letters and so on.
There isn't any piece of paper which will stop this
type of photojournalist if that's what you want to call
them. If they think there is a good photo to be had,
they will take it. If they think there is a story which
needs to be illustrated, they will do so, and the
pressures of that are simple.
I can say that there isn't a piece of paper which
will stop them, let alone a voluntary one, because if
they will literally tear up an order of the court in
front of you as you hand it to them, as they do, they
are hardly going to take any notice of a "no shoot"
list, and if you don't believe me, then just look at
what happened to Tinglan Hong, one of a number of
examples of where we've seen over the last nine months
that despite the microscope of this Inquiry under which
the newspapers are putting on their best behaviour,
there are still examples of the same kind of misconduct
I have just outlined, because a story sometimes is too
good to miss.
Ms Hong made it plain, "no shoot" list or not, that
she did not want to be photographed. She wanted to be
left alone. After all, what had she done, other than
have a baby with Hugh Grant? Of course, presumably that
is justification enough to terrify this poor pregnant
woman. And what about her mother, who some paparazzo
even tried to run over when she tried to gather the
necessary evidence by turning the camera on the
cameraman? Another theme, you might feel, of this
And if you think there isn't good business in this,
then look at the evidence of Matt Sprake of the Newspics
agency, whose evidence came very late in this Inquiry
but which demonstrated that all of our favourite tabloid
newspapers had been using this form of covert
surveillance right through 2011 and 2012, snooping
around trying to find a photo which could catch out
a well-known person smoking a cigarette when she
shouldn't, or leaving a flat maybe they shouldn't have
Really, I ask, in 2012, is this still what the press
think is a practice that should be protected?
But there have been other examples of this during
the ongoing Inquiry which I should mention. In the face
of the contempt convictions relating to the
investigation of Christopher Jefferies, there was also
the contempt of court in relation to the reporting of
the Levi Bellfield trial. There was the sale of
evidence information from Virgin Atlantic to
Big Pictures, and perhaps one of the most memorable
pieces of evidence was the way in which certain
newspapers dealt with the Belgian coach crash.
Yes, I'm sure there are those sitting in this
Inquiry which hoped I would not mention the indefensible
way in which a family's grief was intruded upon.
Publishing the photograph of a child in pain at the
funeral of her brother would be singularly appalling if
it were an isolated lapse of judgment, but it isn't.
We've heard many examples of other similar instances in
other newspapers over the years.
Have they learnt nothing, though, from the number of
people who came to give evidence to this Inquiry about
the appalling way in which the press can compound an
already tragic situation by the most intrusive and
sensational of reporting? Apparently not.
What a fitting end to the evidence about the
relationship between the press and the public.
And what about Module 2?
LORD JUSTICE LEVESON
Just before you move on,
Mr Sherborne, Mr Dingemans yesterday tried to summarise
in seven propositions the issues, and one of his
propositions, which you might have read, was that it was
possibly appropriate to conclude that the press have
a tendency to see news as divorced from the individuals
involved, in other words to commodify the people and, as
it were, put that to one side purely because of the news
value of a story. Would that be a fair way of
summarising the effect of what you've been saying? Or
is that not strong enough? How would you put that?
Sir, we'd say it's not strong enough, but it
is a pattern which is familiar from the evidence we've
heard, the dehumanisation, in effect, of the victims,
certainly in terms of stories which involve the
intrusion into grief, but. I would put it higher than
that. You've heard me put it higher. And the evidence
justifies us putting it higher than that because one can
see the very real damage it does to people in those
LORD JUSTICE LEVESON
Oh yes, but if you're not thinking
about the people involved, then you're certainly not
thinking about the harm that it causes to those people.
Of course not, sir.
LORD JUSTICE LEVESON
But we say there are circumstances, there are
examples, where it's not simply a question of failing to
see how there are human beings involved. We say there
is a deliberate turning of a blind eye. And the
examples I've given can't possibly be explained simply
by the fact that there are individuals within
a newspaper who haven't stopped to think of the very
real damage they are doing to people. Particularly
given the fact, for example, with the McCanns, that this
sort of campaign lasted over months and months, and
lasted despite the fact that the McCanns themselves were
begging the PCC and anyone else who would listen to stop
this kind of reporting.
We say, in the face of that, it can't possibly be
maintained that this was simply the failure to do
anything other than not take into account what the human
dimension was to these stories which are just too good
What about Module 2, sir, the relationship between
the press and the police? What did we really learn?
From my clients' point of view, from the public's
point of view, perhaps very little, and I don't say that
to diminish the exercise. Far from it.
The Inquiry has a lot to think about in terms of
what it suggests is the way to deal with the obvious
problems which the at times nauseating closeness between
certain members of the police and press has led to,
a culture which is at the very least evocative of a type
of leniency or impunity, or at least the appearance of
such, neither of which is healthy.
We've made recommendations about these, detailed and
lengthy recommendations, which I'm afraid Mr Garnham has
to some extent misunderstood, and I don't blame him for
doing so. There are more pieces of paper in this
Inquiry even than there are in Mr Mulcaire's notebook,
and I will deal with this very briefly in a moment.
But as well as the closeness of relationships, there
are other issues such as leaks to the media,
particularly surrounding prominent arrests. There is
a very lengthy and comprehensive document, as I said,
prepared by Ms Mansoori and Ms Alan, and I leave you to
read that, especially in terms of the recommendations it
But the real reason I said that my clients have
learnt very little from Module 2, as far as they are
concerned, is simple: we already knew perfectly well
that the police had failed the public. And by that
I mean in relation to the hacking of thousands of
people's mobile telephones by just one newspaper. We
heard how, despite having uncovered an Aladdin's cave of
evidence, of serious wrongdoing on a scale which at
least involved hundreds of victims and encompassed
a number of journalists, rather than open it up and
properly investigate, the police shut the cave up as
firmly as they could.
And despite what it seemed to suggest, whether out
of abundance of caution or not, all of the evidence was
there in that cave in 2006, as it is now. They had
Mulcaire's notebooks, they had worked out there were
over 400 potential victims, they had pages of PIN
numbers, passwords, unique direct dial numbers, they had
call data from Mr Mulcaire and from within the News of
the World, from its Bat phone, they had the corner names
of a number of journalists, the same ones as those who
had been arrested, they had the "for Neville" email and
they knew about payments for stories and so on.
So why did they shut the cave? Was it pressure of
resources? Well, perhaps. But that doesn't explain the
reluctance of the senior investigating officer to reveal
the full extent and nature of the evidence to the CPS or
to prosecuting counsel, or to pursue the agreed strategy
of informing the victims.
The somewhat incredible claim to the CPS in 2006
that there was no evidence that any other journalist was
involved simply doesn't make sense, and to test the
police's position, look at it in this way: say the
police seized 11,000 pages of notes from a burglar
containing home addresses and safe codes and so on, with
the names of a series of antique dealers, for example,
on the corner of the numerous pages, antique dealers who
had presumably commissioned the information and were no
doubt using it to get pieces they might want to sell;
would the police in those circumstances have stopped at
prosecuting just the burglar and one such dealer? Of
course they wouldn't.
Would they not have warned each and every house
owner whose safe code or similar was in that book that
they were potentially at risk? Of course they would
have done. I'm sure you see the point.
By sealing up the cave, what they allowed News Group
to do was not just to escape the full consequences of
the criminality which they had perpetrated, they allowed
News Group to peddle the lie of one rogue reporter, and
they failed the victims, the thousands of victims who
might have done something more about it if they'd been
told in 2006 and not had to try and wait years to piece
together what had happened as best they can, despite the
deliberate destruction of millions of emails by News
What about Operation Motorman? The investigation
which uncovered a widespread illegal trade in the
purchase of private information on a scale which
rivalled phone hacking and involved all of the press,
practically, but especially the tabloid newspapers? And
yet, despite the sheer volume of criminal records,
friends and family numbers, DVLA checks and so on, which
Mr Whittamore was paid significant sums to supply to the
press, not a single journalist of any of those named in
his notebooks was ever charged, a fact which the
newspapers now rely on, rather unsurprisingly, to try
and diminish the obvious significance of what was
uncovered, and I will return to this shortly.
For the moment, it is sufficient to say that this,
Operation Motorman and Operation Glade, was yet another
failure, another blot on the copy book. It is no wonder
that the failure properly to investigate and punish
journalists has led to a sense of impunity, which did
nothing to expose these illegal practices.
Coupled with the evidence we've heard of the overly
close relationship between the press and police, the
accounts of excessive hospitality, is it any wonder that
there was the perception of bias or conflict of
Let me take an example, one which Mr Garnham
referred to, I think, yesterday when I wasn't here. At
a key moment in the hacking investigation, when the
police had uncovered evidence of how widespread the
practice was and were deciding what to do about it
within News of the World, Messrs Hayman and Fedorcio
attended a meal with Andy Coulson and Neil Wallis at an
exclusive London members' club. Whether they discussed
it openly or not, which they deny, it doesn't matter.
But I wonder, would you have described the decision
to meet and to have that dinner as a wise or a foolish
one? And do you really need me to answer that question?
Real bias or just the appearance of such, either
way, the relationship came across as a desperately
unhealthy one, we say.
Whilst it is right that there should be recognition
that the officers of Operation Weeting under DAC Akers
have done much to restore the confidence of the public,
the fact is that their predecessors, the lunching
classes at the top of the tree, have so lost the trust
of the public that the task of Operation Weeting is at
best a damage limitation exercise and not just because
the delay in not investigating in 2006 has made the task
much more difficult for the officers now and has
required more manpower as a result. As I'll explain
shortly, we are still at the tip of the iceberg.
Whilst we're looking at unsatisfactory
relationships, let's move to Module 3.
The lessons of Module 3 seem clear, certainly to the
victims. Everyone admits the relationship between the
press and the politicians was one which was and has been
particularly unhealthy. Not because it was too cosy,
perhaps, but because politician after politician of
every colour, creed and class, sought to obtain the
support of one of the most powerful media barons we have
ever seen. Does it really need to be pointed out how
unhealthy it is? The great irony that the elected
representatives of this country, representatives at the
highest level, have been under the influence, whether
direct or indirect, and it matters not, of an unelected
Well, apparently it does. The culture of fear and
favour which the relationship between our politicians
and the press seems based on, cannot possibly be right.
You've heard evidence, sir, from some of the biggest
names in politics, individuals of stature, serious
politicians who have admitted to the fact that it was
easier perhaps to prostrate oneself at the feet of the
Sun king, or rather the king of the Sun, if only to
ensure that they would be in power and could push
through policies which they believed, genuinely
believed, would benefit the many.
A small sacrifice, perhaps.
No one is saying to politicians like Mr Cameron that
they can't be friends with editors, journalists whoever,
and I know you aren't saying that either, sir. One
isn't even saying, "Don't go to Santorini". I'm sure
it's a beautiful holiday island. But that's what it
should be. Not a place where those we elect should seek
hospitality from the rich and powerful unelected few in
return for political support and favours. After all, as
Virgil taught us: Be wary of those in Greece bearing
It is not rocket science, any more than police being
wined and dined by editors of newspapers who they were
investigating for criminal offences.
Finally, it needs to be said that the evidence we
have heard certainly demonstrates the importance of
plurality and other similar checks and balances which
have been recommended by many of my clients, who have
either come here to give evidence or provided helpful
papers. Sir, I'm sure you have and will read them, and
will take their comments on board.
Before we leave the evidence we've heard, can I say
one or two things briefly? Yes, there have been lots of
individual examples, but the who did what to whom and
when, tempting as it is to dwell on, really provides an
insight, we say, into the culture, practice and ethics
of the press as a whole.
What it has shown us, for example, is that right at
the heart of the problems is perhaps a failure of
governance. It is not the journalist that is simply to
blame, or even the editors. The problems stem right
from the top. You have proprietors worried about
commercial sales, editors worried about pleasing
proprietors, journalists who take their moral compass
from those above them. We've seen clear examples of
this in the Inquiry.
Take the News of the World as just one example. We
have seen a succession of editors starting with Kelvin
McKenzie, moving on to Piers Morgan, then
Rebekah Brooks, Andy Coulson and finally the new broom,
Colin Myler; and when one looks at this list, one can
see the nature of the individuals, some of the most
powerful people in Fleet Street, people who have shaped
popular culture, but have also shaped the culture,
practice and ethics of the press. We have seen each of
them up close, giving evidence here, and, sir, you will
reach your own conclusions.
But if these are the generals, what about the foot
soldiers? Men like Paul McMullan, the parody of a
tabloid journalist. His evidence would have been
comical with great tabloid headlines such as, "Privacy
is for Paedophiles", if it weren't for the fact that
many of us here suspect that this wasn't just his view,
but reflected a newspaper which fed the public a steady
diet of salacious stories.
Mr McMullan, the tabloid world's guilty pleasure,
a dirty secret that everyone was so quick to disown as
journalist after journalist came from the News of the
World and said that they didn't recognise what he was
describing. It's funny, isn't it, that a man who no one
seemed to recognise was responsible over the years for
countless News of the World exclusives.
Or you have Neville Thurlbeck, the chief reporter
and senior figure within News International, the classic
journalist who made his exclusives and left. The man
who seemed incapable of recognising a blackmail demand,
no matter how clearly it stared him in the face. Or
perhaps he was just unwilling, as he was to admit having
written the emails in the first place, despite the
equally glaring evidence that he was responsible.
How much does this tell us about the personalities
of those people who are running these newspapers? And
it applies to other newspapers in the industry too.
Sir, I'm going to move on next to consider how the
press have responded to all this evidence, because we
say again: this is indicative of the culture.
While it would be good if the reaction of the core
participant media organisations to this evidence was
a full acceptance of what had been done that was wrong,
or at least a large, large measure of mea culpa, what we
have seen in some areas, particularly to my right -- and
I don't just mean my immediate right, before there is
a shifting of chairs -- what we've seen is a culture --
and I use that word advisedly -- of plausible
deniability rather than openness and candour. A culture
of cover-up rather than clean-up.
While certain newspaper groups are more
representative of this culture than others, of their:
"If we shout and protest long enough, avoid making any
concessions and dispute everything, even in the face of
strong evidence, that will wear down any criticism, let
alone condemnation". We say it is an example of what is
prevalent across the board, and if anything needs to be
given to support this, let us look at Operation
I don't need to repeat the sections of the
Information Commissioner's reports "What price privacy?"
and "What price privacy now?", in which he outlined the
catalogue of personal information illegally obtained at
the request of newspaper after newspaper. On any scale,
it was industrial. It was blindingly obvious to us,
certainly on this side of the room, that in view of the
travesty which the failure to prosecute any journalist
represented and the absence of any proper investigation
of the material in this Inquiry, which had been released
to the core participants, there was every chance that
a newspaper group would try to avoid any suggestion it
must have known that the information it obtained, in
large volume, must have been illegally obtained.
And so it came to pass, or almost came to pass, with
a misunderstanding over precisely what position was
being adopted by one of the core participants.
Being right, as I tell my children, is no
consolation. Much better if it never happened in the
first place. We all know the significance of what was
disclosed by Operation Motorman: the widespread use of
Mr Whittamore's services, which continued, in the case
of one newspaper, until 2010, after he was convicted.
It has always been the position of the core
participant victims that it is hardly credible for the
press to claim that they were blissfully unaware that
this type of personal information which they would buy
had been obtained or might have been obtained illegally.
The sheer number of criminal record checks, friends and
family numbers, DVLA checks and so on and so forth is
a testament to this. But as important was the fact that
some of the newspapers simply refused properly to
investigate and respond to the complaint.
Despite the newspapers' mantra, these activities
could hardly be described as historic. For example, if
the same journalist was still there at these newspapers
and remained unrepentant or ignorant at all of what the
fuss was all about, as it appeared some believe, or
worse still, the information was still being processed,
then, as we say, it is hardly historic.
And what have the newspapers done to investigate
this? Well, some have been pretty candid, like Trinity
Mirror for whom Sly Bailey came to give evidence. She
said they'd asked no real questions of anyone in the
wake of the report, and it wasn't because of the
difficulty of doing so that they hadn't investigated.
She said it was because they were only interested in
a forward-looking approach. And who can blame Trinity
Mirror for only looking forward? With a track record
which Operation Motorman shows about the practices of
the press, who on earth would want to look backwards?
And take Associated Newspapers. They stated that
they had banned any further use of the services of
Mr Whittamore once they had discovered they were top of
the table of his clients, and the Inquiry has recognised
that they've done so.
Mr Dacre, at least, said he would carry out
a further investigation. That was in March. It is
now July, and perhaps Mr Caplan will outline, when he
makes his closing speech, what has been done and what
has been discovered as a result.
You will also recall what the editors said to Mr Jay
about the individuals who might have been involved and
whether they might still have the information in their
contact books and so on. He said it's so long ago that
most of the people involved have actually left the
newspaper, are working elsewhere or emigrated.
Sir, this might be an answer that might be given by
any number of the newspaper editors. The Inquiry knows,
however, that there are journalists, some of whose names
appeared in the Inquiry for other reasons, who carried
out numerous requests of Mr Whittamore, who are alive
and well in senior positions within newspapers still.
One doesn't need to worry about getting their
ex-directory numbers or doing area searches in relation
Unlike Ms Bailey, yours is not an entirely
forward-looking exercise. If it was, after all, you
wouldn't be examining the past if one couldn't learn
lessons from the history of it.
We say there is strong evidence to infer that the
journalists who used Mr Whittamore knew they were
gaining information illegally. As such, buying personal
information was just another tool in the trade, rather
like phone hacking; and the number of victims is
similar, as are the lists of names in some cases.
Talking of victims, when considering the response of
the media core participants to the evidence as we've
seen it, it's important to recognise the bravery of
people who have come here to tell their account,
distressing as it has often been, of what they've had to
Of course, they've not only done this with nothing
to gain, no compensation, no judgment in their favour,
no promise it won't be repeated and so on. Instead,
they've opened themselves up to more publicity, and even
on occasion, to attack. And attack it has been, in some
cases, which is illustrative of another aspect of the
You will recall, sir, even before the Inquiry
started, the Mail's journalists started a series of
curtain raisers to attack the credibility of those who
had agreed to come and give evidence, despite the
warnings you gave in this regard.
One such article was the one which bemoaned the fact
that the McCanns and Dowlers were being sullied by the
suggestion that they were giving evidence with the likes
of Max Mosley, Hugh Grant and Sheryl Gascoigne, and
you'll recall that I mentioned that in my opening
Mr Mosley and Mr Grant were both strong enough to
weather this kind of nasty comment. It was just the
sort of intimidation that they suspected. But it's the
intimidation of the integrity of the Inquiry which we're
worried about. It's an interesting postscript that
Ms Gascoigne has recently forced an apology and
statement in open court in relation to that very
article, but it is a shame that it took the highlighting
of it in this room to get that.
Anne Diamond was not so lucky. You recall how she
was attacked by Mr McKenzie as being an unreliable
witness because she could remember word for word
a conversation she'd had many years ago which showed
she'd been effectively blackmailed into not complaining
about a photograph the newspaper wanted to publish on
its front page of her carrying the coffin of her son.
As you yourself said, sir, is it that surprising,
given the nature of it, that she would remember such
a conversation for the rest of her life? It didn't stop
Mr McKenzie's attack, though, but then one wonders what
would for a man who told this Inquiry he'd only checked
his sources once in his entire career, and that was once
Perhaps the clearest example of this tactic of
a certain section of the press, that attack is the best
form of self-defence, came with the evidence of
I'm not going to rehearse what happened. We all
remember it. Mr Grant in his evidence in answer to
Mr Jay, based on a number of extraordinary coincidences
between the article which the newspaper published about
an alleged affair with a plummy-voiced executive and
messages that were left on his voicemail, together with
what he'd been told by Mr McMullan in a taped
conversation, led him to believe that it could have been
the product of someone listening to his mobile phone
messages. That was all. It was his belief, as he said.
But that was enough to have an associated newspaper not
respond within this Inquiry but to reach for its website
and to issue a public statement accusing one of the
witnesses of not simply being mistaken or wrong, but
It's a shame that instead of this very public
accusation of perjury, they didn't reach for
a dictionary, given that there was a singular failure to
comprehend what the word "mendacious" meant, namely:
Whatever else may be said about this episode, and
there is much more I could say, what it does show is how
the press, time and time again, goes on the attack,
rubbishing those who run the gauntlet as a way of
instantly deflecting criticism away from itself.
This culture of intimidation, where people become
too afraid to speak out about the press, is not only
unhealthy, but is surely as much a curtailment of free
speech as anything which the press itself complains
Let us not confuse this with the freedom to bully,
to intimidate, to set the agenda. After all, the media
have all the resources. And whilst on this subject, let
me say a word about conditional fee agreements, which
the media again bitterly complained about here in this
Inquiry, how well-known individuals have used them to
help fund actions against the press.
Remember, of course, that it was this ability to
bring a claim which allowed the McCanns,
Christopher Jefferies, Sally and Bob Dowler to have
equality of arms with the most wealthy organisations in
The attack on CFAs is just another example of
a culture which rubbishes anyone well-known who
complains as a "whingeing celebrity", any lawyer who
takes them on as "greedy", any judge who supports them
as "amoralistic and lofty", and any law which they don't
like as "strangling the media" or being introduced by
the back door. Is it any wonder why self-regulation
Before we explore that, I want to turn to one other
topic, one which again I submit the press will do their
best to rubbish, and that is the prospect of part 2 of
Sir, I don't know if that's a convenient moment to
take a short break.
LORD JUSTICE LEVESON
I think an hour is probably
sufficient. Yes, let's do that.
(A short break)
Sir, I'm moving on to the need for part 2 of
this Inquiry. And it's worth reminding everyone of what
part 2 is intended to be about.
Again, before I do so, I'm asked actually to clarify
something I said earlier, which I'm happy to do.
When I described Heather Mills as being forced to
come to this Inquiry, I wasn't by that description
referring to the fact that she may have been served with
a Section 21 notice. What I was referring to, and I've
been asked to make clear, is that she felt compelled,
self-compelled, to come and explain her position as
opposed to being required to be here by the Inquiry.
I hope that makes the position clear.
As I say, part 2 of this Inquiry is not just about
hacking and it's not just about the News of the World.
It is meant to enquire, as the terms of reference show,
into illegal practices of all kinds, no doubt similar to
those that have been investigated by Operations Tuleta
and Elveden, and not just Weeting.
And it is meant to cover other newspapers, not
simply the now defunct News of the World. As we've
heard from DAC Akers yesterday, the net is wider, and
what it will reveal, we believe, is a section of the
press, rather than simply one misguided newspaper, which
is far more rotten than many people had realised.
I understand, as we all do, why it was necessary
here to put the cart before the horse, to look at the
generality of the culture, practices and ethics before
considering the prime reason the Inquiry was started,
namely the specifics of the phone hacking scandal.
It was necessary because of the criminal
investigation, and could this be a more auspicious day
to say that and to say also that we should continue with
the work of part 2 as soon as this is possible?
Further charges, even in the break that we have just
taken, have been announced against those suspected of
being involved, at least at the News of the World.
I anticipate that a very significant part of the
media machine, which will grind into action once part 1
of the Inquiry ends, will be to say that part 2 is
unnecessary. The public have had enough, the
recommendations mean that this is all historic, so why
the need to drag this all up? That is no doubt what
will be said by the self-interested few, who will be
anxious to avoid any further inquiry into the sordid
details of precisely how corrupt this section of the
press was, how far to the core this rot had spread or
how high up the tree this went.
It can be answered in two ways. The first is by
recognising, as we must do, the unsatisfactory nature of
parts of Module 1, the spectacle of journalists coming
to the Inquiry to give evidence about culture, practices
and ethics, but not being asked about their direct
knowledge or involvement in an episode which perhaps
best exemplifies those very matters.
It was the constant question left hanging in the
room, the one thing no one could ask as a series of News
of the World executives and journalists gave evidence
here, gave evidence about their views on regulation,
articles they'd written, some important, some
peripheral, or told us about their good deeds, the
public awareness they've raised on issues of varying
weight, such as road safety, abortion or wheelie bins;
but not a word spoken about a culture of illegality,
criminality or unlawful practices on an industrial
scale, which we say was known about and then concealed
by senior executives within the organisation.
As I say, we all know why that had to be the case,
but perhaps it was the acts of one journalist which
demonstrated how in one sense, one very real sense, the
work of part 1 was compromised, how it can and will only
be properly complete once part 2 is also completed.
The News of the World reporter who sat over there
and refused to answer any questions even remotely
relating to the issue of phone hacking, not to mention
anything else which he didn't like.
He claimed or was entitled to claim the privilege of
not answering anything, and yet, within hours, he went
on Radio 4 vehemently, publicly protesting his innocence
in relation to this practice, one which he had so
resolutely refused to be tested in this room.
It was a farce. A piece of astonishing hypocrisy
that no politician, for example, would survive.
So that is the first reason why part 2 must
continue: to do the work that is necessary to complete
The other is that what we've seen so far, as DAC
Akers speculated, is only the tip of the iceberg.
Whilst much of what lies beneath the surface relates to
practices which were taking place in the early 2000s and
up until 2006, the story by no means ends there. The
News Group cover-up of the truth carried on well into
2010 and beyond, and more is coming to light with
DAC Akers even mentioned the fact that there were
payments, we're told, by one of the newspapers to
a prison officer, the last of which took place
in February 2012, during this very Inquiry.
When I stood here even in November, in many ways we
were only starting to scratch the surface of what went
on during the phone hacking scandal, through the civil
proceedings with the restrictions that it has. We have
now begun to piece together with the help of what little
disclosure we can still find, or drag out of News Group,
the sheer scale of information which was being obtained,
not just voicemails, not just PIN numbers, but a whole
host of other personal details: friends and family
numbers, utility bill information, texts, medical
information, credit card entries and so on.
It is clear that Mr Mulcaire, or those working with
him, blagged a horde of information similar to that
which Mr Whittamore did for all the other newspapers.
And we now know that what Mr Mulcaire did was only
a fraction of what News Group's own journalists did
themselves, in order to obtain colour for their stories,
to corroborate tip-offs they might have had, to use them
as a means to intimidate individuals into disclosing
details about their private lives which they would never
have wanted to reveal voluntarily.
We now have an internal instruction email passing
between a senior executive and a journalist relating to
a well-known individual's phone. Perhaps the smoking
gun we have been looking for.
And most interesting of all is the evidence we have
of the cover-up, the deliberate destruction by
News International of millions of emails, which took
place whilst the newspaper's executives were still
peddling the line in public that this was just the work
of one rogue reporter.
We now know what was happening behind the scenes,
that this email deletion policy was being discussed and
approved of at the highest, at the highest of levels
within the company, despite the evidence which has been
given to this Inquiry.
And when did this mass deletion take place, you may
ask. Well, at two critical times, as we can now tell.
First, within days of the letter of complaint
received from us in the Sienna Miller case landing on
the desk of News International, asking to preserve all
documents, as one does in civil litigation. And what
about the second time that there was another mass cull?
It was the day, the very day after the
Director of Public Prosecutions, Mr Starmer, announced
that he was conducting a comprehensive assessment into
News International's voicemail interception activities.
I need say nothing more.
To return to my point, part 2 is not just about News
of the World and what it did throughout the period. It
would look at other newspapers as well, the same ones
DAC Akers was talking about.
The simple point is this, sir: how do the public
really know that this won't happen again? How do we
know this wasn't rife, as we suspect it was, throughout
not just the News of the World but a whole section of
the press and carried on right up until the doors of
this Inquiry? How do we know this unless the stables
are properly cleaned out? The civil litigation won't do
this, unfortunately. The criminal proceedings won't do
it either, I suspect, any more than the prosecution of
Mr Mulcaire and Goodman revealed much in the light of
their guilty pleas.
So on behalf of the victims, I urge this Inquiry to
proceed to part 2 as soon as it is possible to do so.
LORD JUSTICE LEVESON
I've not said anything that
undermines the commitment to address the terms of
reference which were set for the Inquiry, but I would be
interested to understand why you submit that the civil
proceedings and the criminal prosecutions, which we now
know are due to take place, and the criminal
investigations which are still ongoing, will not
themselves generate an enormous amount of material
available within the public domain, which will explain
and elucidate those parts of the terms of reference that
are contained within part 2, particularly bearing in
mind that part 2 could not commence in any event, until
all the prosecutions had been concluded.
Sir, can I take them in order, the civil
The way in which they've progressed, as you'll be
aware, is that News International finally made a series
of admissions in relation to the case, as best as it
could be put by the individual claimants, given, as
I say, the fragmentary disclosure which they've been
able to obtain.
Once those admissions were made,
News International's argument is that there is no need
then to provide further disclosure. There is nothing
more in terms of being able to really get at what we say
is the full picture of what took place. Furthermore,
there are no witnesses that they will call to give
evidence to explain what took place. That's an entirely
different position to what happens in this Inquiry.
LORD JUSTICE LEVESON
I understand that.
Where you can compel people to give evidence,
as you have done.
LORD JUSTICE LEVESON
I understand that, but the scale of
the events is manifesting itself by the number of people
who have joined the ranks of those who are seeking
We only have names, sir. We don't have the
underlying acts that took place in relation to them. We
have simply Mr Mulcaire's notes.
As I say, thank God he kept notes, illegible as they
are, but the fact is, what went on, what took place
within News International as opposed to what took place
with the hired gun that they used, Mr Mulcaire, is
something we may never find out unless there is somebody
that has the power to compel the sort of production of
documents and the giving of evidence which no civil
court can or will do.
LORD JUSTICE LEVESON
That takes you on to the criminal
Then I will move on to the criminal court.
One only needs to look at what took place in 2006 to
see that although there were convictions, although
Mr Mulcaire and Mr Goodman were convicted, we learnt
precious little during the course of those proceedings
about what really took place within News International.
In the light of it, News International were still able
to peddle the lie: it was simply Mr Goodman and simply
LORD JUSTICE LEVESON
I'm not so sure it's a fair analogy
to compare that which happened in 2006 with that which
is presently happening in Operation Weeting.
The answer is that --
LORD JUSTICE LEVESON
I'm not challenging the proposition
that you make, I'm merely testing the extent to which we
will learn very much more if, as I anticipate, given the
recent announcements and the investigations that are
ongoing, criminal proceedings are going to be wending
their way through the courts for some very considerable
Sir, it's not Operation Weeting or the
activities of Operation Weeting that won't result in
this, it's the fact that if, as one suspects, there may
be guilty pleas, by virtue of the process, one will
learn so little.
At the moment there is nothing in the public domain,
or very little, because of the fear of prejudicing the
criminal investigation. Once charges are brought, that
isn't going to change; and if those who are charged
plead guilty, we will never find out.
LORD JUSTICE LEVESON
I understand that, but isn't that,
therefore, a reason to say, "We have to wait and see"?
Of course we have to wait.
LORD JUSTICE LEVESON
I am not in any sense seeking to
advance an argument that part 2 should not happen.
Although it's been suggested that I've said that,
paragraph 65 of my ruling of 1 May doesn't actually say
It doesn't, sir, but the way it's been
interpreted by those who have an interest in doing so is
that it means that there may well not be part 2.
We understand the limitations, as I said. We ask
that the Inquiry can continue with the work it's
undertaking as quickly as it possibly can, the
"possible" being obviously a reference to the ongoing
criminal investigation. We understand that.
Let me move on then to the future and to regulation.
In the face of all that I have described, what has
the press itself come up with as a solution? It appears
to be the proposals which have recently come out of the
still surviving, but only just breathing, Press
Complaints Commission, Lord Hunt and PressBoF.
I could devote my entire allotted time, which I've
probably come close to overrunning, to explaining why we
say that however well intentioned it may be, as
a proposal to deal with the practice, culture and ethics
we've witnessed, it is hopeless.
I will restrict myself, therefore, to making just
a few general observations. After all, it is tempting
to add, it seems somewhat pointless dealing with the
detail since even the media organisations who support it
say they can't sign up to the detail of it yet.
So what about the key features of this proposal? It
is, after all, a contractual document, a fixed-term of
five years proposed. Well, you don't need the lawyers
in this room representing the core participant media
organisations to tell you that contracts can, by
definition, be walked away from. We've seen such
organisations do similar things in the past.
What, of course, is to stop this contract being torn
up five years from now? Or all of those who sign it to
leave en masse? Hardly a sound footing, we say, for the
And it is not independent. It is run by the
industry, and the Code Committee still appears to be
made up of a majority of serving editors.
Perhaps most important of all its features is it is
to be self-regulated and not underpinned in any way by
Have these organisations here really learnt nothing
from the lessons of history? Those who are old enough
to do so -- and although I thankfully don't count myself
as one of them, we've had the benefit of some of them
give evidence to this Inquiry -- can list the catalogue
of events which have brought this issue into the public
eye over the years, and the previous answers given by
the media, the attempts at self-regulation in the past,
which one by one have failed and have brought us to this
The Royal Commissions in 1947-9, 1961-2, 1974-7, the
Younger Committee Report in 1972, Calcutt one, which set
up the Press Council, Calcutt two, which set up the PCC,
the outrage over what happened to Diana, the late
Princess of Wales, the Information Commissioner's
report, the phone hacking scandal and so on. All of
these demonstrate, if proof is needed, that
self-regulation doesn't work and hasn't worked.
The press have been merrily drinking away in the
last-chance saloon, so-called, for years and years now,
and while they've been doing so, we have witnessed
possibly the most outrageous, largest criminal
malpractice this country's press has ever known. Hardly
an advert for self-regulation.
I leave the last word on self-regulation to
Rebekah Brooks, perhaps fittingly, who said to the House
of Commons Select Committee in 2003, in what has now
become a rather infamous piece of evidence:
Self-regulation, she said, under the guidance of the
Press Complaints Commission, has changed the culture in
Fleet Street and in every single newsroom in the land.
If that is the press' own assessment of
self-regulation, then it is no wonder, I say, that this
is what is responsible for the culture of complacency,
the culture of intrusiveness and illegality which we've
spent months considering. When will the press, I ask,
learn that enough is enough?
And they won't agree to any form of statutory
underpinning, something which will bind the newspapers
into this new regulation, something which we say would
keep the regulator accountable.
What is the answer of Lord Hunt and his colleagues?
And he has colleagues who say the same thing, to be
fair. What is their answer to this? They say there is
a fear that this is a slippery road. Any statutory
control might be used by a future Government to control
Given the evidence we've heard in Module 3 about how
it is the politicians who live in fear of an
unaccountable and unelected media, this seems a somewhat
laughable suggestion. But it's hard to take it
seriously anyway, as Mr Jay put it. These fears are
irration, since even if there is no statute, what is to
stop any Government at any stage in the future passing
a statute if it chooses? Nothing.
But more importantly, this can be dealt with, as
Mr Jay suggested or you yourself, sir, recommended, by
writing into the statute express statements disavowing
any suggestion there should be Government control of
editorial content or judgment, and so on and so forth.
The simply fact is that Lord Hunt's proposal is not,
as the Inquiry has heard, what the victims would
require. Its starting point, its whole premise, is what
is acceptable to the industry. But forgive me, we're
not here solely to decide what is acceptable to the
industry. We're here because the industry is not
acceptable to the public, with whom there seems to have
been no consultation by Lord Hunt's team.
The public wants more objective standards, and the
starting point for that is an independent,
statute-backed regulator, which is created for the
public and is not run by serving editors, and one which
can hold this enormously influential body to account, as
they hold us to account in turn.
As you know, sir, the core participant victims have,
as a group, as well as individually, made submissions
about the future and what regulation should look like,
and you have those; and you have, or will no doubt, read
them, so I won't repeat the detail of them now.
Can I just say something about their shape and their
We say there should be an entirely new regime,
a clean break, not just in name but in substance, from
everything that has come before and failed. There
should be separate mechanisms for rule-making, for
investigations, including investigations of the
regulator's own motion, and most importantly for
adjudications. A body of independent adjudicators
should rule upon complaints as to media conduct and
serving editors should have no role in that.
This adjudicator could deal not only with issues
covering libel, privacy and harassment, but broader
standards concerning accuracy, news information
gathering and so on. And it can also cover matters for
which there may be no existing legal course of action,
to deal with complaints that the law cannot deal with,
at least presently. And perhaps that's where one of its
Take, for example, Bob and Margaret Watson, who
travelled down from Scotland to share with all of us the
extraordinary pain that they'd suffered because the
memory of their daughter had been so terribly and
tragically traduced, whose evidence, so beautifully
elicited and simple, was hard not to sympathise with.
Maybe where the law currently fails to protect the
reputation of those who are no longer around to defend
it themselves is precisely where an industry regulator
might bring some satisfactory answer. One can only hope
so, for their sake and all families like them.
It should involve rules or guidance about prior
notification, we say, on which point we've already made
Let me just say this. It is clear from the
evidence, both of the core participant victims and even
those from the media and social commentators, that there
is considerable support for this requirement. And it is
There really is no answer to the argument that the
only effective remedy for the breach of an individual's
right to respect for his or her private life is an
injunction to stop the unwarranted intrusion before it
Simply put, once the information is published to the
world at large, it is by definition no longer private.
So unless an individual is notified in advance of an
intention to publish, there is no opportunity to seek
the all-important remedy.
Before I move away, this is not a problem which,
some have suggested, is irremediable. Arguments against
it such as the chilling effect it might have on
investigative journalism are specious. No one really
believes -- no one who practices in this field -- that
such a story like the expenses scandal would ever have
been stopped by a judge, even if an MP was mad enough to
make such an application. It is Alice in Wonderland
territory, but I've already dealt with this in writing.
And the rules may also say something again,
something clearer perhaps, about public interest,
another topic you'll find dealt with in my written
It's perhaps no wonder, though, that attempts at
a more comprehensive definition of this concept have
never been that successful, but perhaps it isn't
necessary. It is one of those things where it is easy
to spot but difficult to define.
Let me say this, though: very little, if any, of the
stories which we've heard relating to the victims who
came to give evidence here about shocking press
behaviour involved even the hint of public interest.
The vast majority of tabloid stories are about the
rich and famous or the just famous, and there is
a critical distinction which has been drawn in these
courts between the press' role, its vital role as
a public watchdog, holding politicians and other elected
officials or large corporations to account, and on the
other hand its role as a reporter of the private lives
of the well-known. This is all the fine print, as we
say, we've covered in our written submissions.
But perhaps the most important other way in which
a regulator, or rather its adjudication arm, could be of
real benefit to the public is in providing a fast and
preferably free way of obtaining redress in those cases
which seem relatively straightforward in terms of the
merits involved or the issues raised, without the need
for expensive litigation. A fast, fair and easily
accessible system available to all, especially in the
absence of conditional fee agreements.
But let us be clear. It is important to remember
that an integral part of keeping the press in check is
the rule of law. There is a real need here to recognise
the importance of the courts, the importance of the
Yes, it is expensive, but after all, let's be honest
for a minute, it's the wealthy who are of real interest
to the most relevant section of the press. Not, to
borrow a phrase from Jarvis Cocker, the rest of us
It is the well-known and successful who these
newspapers want to write about. And it is these
individuals who can and should still have a right to the
courts, and I won't take the opportunity here to explain
why we say Article 6 requires this.
Why, you ask, perhaps? Because a tribunal or an
adjudication body will never work effectively as
a sanction or deterrent to the press. It is no complete
substitute. It is not the law that has failed here,
it's the press that have failed us, it's the police that
have failed us, it's the politicians that have failed
us, but not the law.
It was those terrible English laws of libel which
gave Mr Jefferies a remedy, which gave the McCanns
a chance to properly vindicate themselves, not a form of
regulation or a tribunal.
And it was not a tribunal or regulator which
uncovered hacking, whether or not this regulator is
contractually or statutorily underpinned. They could
never, for example, have compelled News Group to tell
the truth. It would never have sufficient disclosure
powers and it would never be free enough, we say, from
It would never, say, have been able to get to the
bottom, at least to some extent, as the civil process
has done, with all the costs that the disclosure process
involves and which ultimately News Group will have to
It is that which has led to the gradually uncovering
of the enormity of this scandal. It was legal actions
by the so-called rich and famous, such as Sienna Miller
and so on, which forced News Group to crack finally, or,
to use the evidence of some of those who sat over there,
for the scales to finally fall from their eyes.
It was the legal process and the so-called chilling
effect of legal proceedings, as I've said, which made
the newspapers pay Mr Jefferies a sum which he could
hold up as demonstrating that what they did was
viciously and wholly untrue, and the same applies to the
McCanns. The public have been left in no doubt of the
truth of those allegations, and we say that is a product
of the rule of law, which has proved time and time again
that it works, and, thank God, in this country one thing
we can rely on; and it's certainly not self-regulation.
Since we're talking of the future, let me see if
I can predict what may happen over the summer in the
days after the report comes out. We will see the
machine, the powerful and hugely influential press
machine, swing into action, and the Inquiry and those
who represent it will no doubt be undermined or their
recommendations rubbished, maybe even before they're
published, on past performance.
Of course, I don't claim any special powers of
clairvoyance, much as I'd like to. The fact is we've
seen it starting already. It happened right at the
outset with the seminars, where we all recall Kelvin
McKenzie attacking the competence of the Inquiry by
rubbishing its chairman. And it's nothing new. It's
like how the same newspaper sought to rubbish the
judgments in the Mosley case. An attack that was taken
up in common cause by other editors in Fleet Street, one
of whom described it in words which should trouble this
"The judgment in Mosley was arrogant and amoral. It
was the product of one man: a judge with a subjective
and highly relativist moral sense."
Is this the shape of things to come? I ask.
Remember, it was the same editor who dismissed the
entire board of assessors here by saying that none of
them had the faintest clue about how newsrooms operate,
and there were further echoes of this culture in the
articles which drew this Inquiry's attention only weeks
If one was being cynical, one might ask how
effective to undermine the Inquiry at a critical time by
suggesting that behind the scenes the chairman had
threatened to quit for having been accused of trying to
gag free speech, something which anyone who has sat in
this room will know, sir, you have repeatedly explained
you have absolutely no intention of doing, on an almost
And effective it was, too, since it turned the
political debate back again in favour of the press.
After all, if this Inquiry has told us anything, it is
that those in power seem to be oh so susceptible to the
influence of the media and their interests.
Let us not be any under illusions here. Following
the end of this stage of the Inquiry, the preparation
and production of the report, the counterattack will
start, as will perhaps the settling of old scores. The
press has a big megaphone and it will be employed
outside this room in the way that only they can.
But that only serves to emphasise my point, sir,
that this is an industry which should be accountable.
That's what the public believe. Accountability. The
word which the press are so quick to apply to
politicians, to the police, to the judiciary, to anyone
else, but which they're so allergic to when it comes to
their own position, privileged as it is. That is the
challenge that you face, sir.
Perhaps the most important point is that whatever
you recommend, it should be supported by the very people
who charged you with this task in the first place.
After all -- if this even needs saying -- otherwise what
is the point of all of this? Why did we all even bother
coming? By that I'm not so much concerned with the
members of the press. They had to, and I don't mean
because of Section 21 notices, but rather because they
were driven by fear, and rightly so, of what might
happen to them when the spotlight was turned on them.
I meant the members of the public, the victims who
came to assist; and not just them but a number of other
interested parties as well.
The public want reassurance. They want their
confidence restored. If the recommendations which you
propose to deal with this crisis of confidence are not
implemented, or at least actively and seriously debated,
then this was all just words on the part of politicians
across the political divide, of great rhetorical
phrases, such as that any solution has to satisfy the
"Dowler test", or the "McCann test".
However quickly this Inquiry has moved, it has been
a long process. The public are tired. They're tired of
listening to stories of politicians who fawned to the
rich and powerful few who own newspapers in return for
They're tired of the policemen who are meant to
protect the system of law, instead wining and dining
with editors or accepting money for favours. And they
are tired of the press, which claims the privilege of
freedom of speech to write largely the sort of stories
which have zero public interest.
They're tired, for example, of listening to
News Group apologise for phone hacking, not because
they're sorry for what they've done, but just because
they're sorry that they got caught.
And they're tired of other newspaper groups
pretending it wasn't them. The press, whose culture is
to deny liability in a deeply moralistic tone, sit so
poorly with the way in which they've trampled over other
people's rights. They are tired of those who represent
the press claiming they'll behave better if only they're
given one more chance to do so.
I say this to Mr Cameron: the public is tired of
promises; it's tired of the politics of popularity over
principle, of its elected representatives kowtowing
under the influence of the unelected few, which is what
the history of media ownership has proved.
I accept that his predecessors have not shown the
necessary courage to do this, how they have succumbed to
the real chilling effect, the one which certain sections
of the media have exerted over our politicians.
Mr Cameron, if you really want to know what the
Dowlers want or the McCanns want, they want you to have
the courage to take a firm grip on certain sections of
the press which are so powerful and yet so unaccountable
that even our politicians have been too afraid to stand
against them, and to implement the recommendations of an
Inquiry, which you yourself set up and vowed to support.
Sir, may I say this in closing: you've managed with
considerable success to land the jumbo jet, as you
described this Inquiry, within the year, and that is
clearly no small feat.
But from the victim's point of view, if the result
of the sort of culture, practices and ethics which we
have heard about here, and which the victims have been
brave enough to recount and relive, if the result of the
shocking examples of intrusions into grief, character
assassinations of the innocent and the dreadful
invasions of people's privacy results in the closure
finally of the much talked about last-chance saloon,
only for the press, through special pleading of
self-interest, to end up being invited instead into
a first class lounge. The answer does not lie, we say,
in a system which is created by the press, for the press
and regulated by the press. That would be a failure.
Not just on the Dowler or the McCann test, but for the
general public, for everyone except the privileged few
who are represented here by the core participant media
Thank you, sir. That's all I wanted to say on
behalf of the victims.
LORD JUSTICE LEVESON
Thank you very much, Mr Sherborne.
I think we'll take just three minutes just to allow
everybody to stretch their legs.
Listening is rather more arduous than just dealing
(A short break)
LORD JUSTICE LEVESON
Yes, Mr Caplan.
Closing submissions by MR CAPLAN
Sir, on behalf of Associated Newspapers, we have
submitted to you in writing detailed submissions and --
LORD JUSTICE LEVESON
45 pages. I've got them and I've
I was going to say today I can say to you that I do
not expect to be any longer and properly shorter than 20
LORD JUSTICE LEVESON
You take the time that you think it's
appropriate to take, Mr Caplan.
Although we asked people to identify how long they
wanted, it was merely so that we had an indication of
what time to allocate. It's very important that
everybody has the opportunity to say that which they
want to say at this important time.
Thank you. I'm certainly not going to repeat
the detailed submissions we've already given to you.
Sir, the scope of your Inquiry has been vast.
Looking back over the last eight months, no one can fail
to have been moved by the evidence of witnesses like the
Dowlers and the McCanns, disturbed by the behaviour of
some journalists or concerned about the closeness of the
relationships between some politicians and
News International. Equally, no one can fail to accept
that the regulatory procedures for the press need
But although the Press Complaints Commission has
been found wanting, the failure to investigate fully
what happened with regard to phone hacking at
News International lies with the Metropolitan Police,
and we must remember that it was ultimately the work of
journalists at one newspaper, the Guardian, that exposed
the true situation.
Sir, the gloomy prospect must exist that history
could look back on your Inquiry as reading the last
rites on an industry which sees circulations falling
year after year, provincial papers closing every week
and very few of the national papers making any profit.
One of the main reasons for that decline is the
enormous and increasing proportion of the public's
leisure time that is consumed by electronic media, which
is controlled by vast global corporations based in
When Sir David Calcutt delivered his reports 20
years ago, voicemails did not exist, nor did Facebook or
Google or Twitter. Those that run these American
corporations have a fundamental philosophical objection
to any restraint on the free dissemination of
information, and they live in a society where the First
Amendment gives an absolute guarantee of freedom of
expression. Public figures there submit their private
lives to substantial scrutiny as the price for enjoying
fame and wealth.
And, sir, as the audience for British newspapers
migrates online, this is the world in which their
publishers have to compete.
Whatever recommendation your Inquiry makes for
future regulation, great care, we suggest, will need to
be taken to ensure that it does not jeopardise the
19,000 jobs still remaining in British newspaper
journalism, or drive publishers in the great growth area
of the Internet to move their operations to another,
sunnier jurisdiction because the conditions here mean
they are unable to compete on equal terms with other
If they are prevented from being commercially viable
UK businesses, their employees and investors will
suffer, and so too will the public interest in
a diverse, vibrant and properly regulated press.
It is because of these vital interests at stake, and
others, that my clients have sought to play an active
role in this Inquiry to provide what assistance, sir,
they can and suggestions for reform, including a paper
by my client's editor-in-chief, Paul Dacre, and the
speech he made last October, which set out a range of
proposals to improve standards and self-regulation.
Your Inquiry was conceived in the wake of the phone
hacking affair, and in particular the interference with
and claimed deletion of Milly Dowler's voicemail
messages by newspaper journalists. But although these
events formed the trigger for the Inquiry, the risk of
prejudice to possible criminal trials has meant that the
Inquiry has in fact been unable to examine this issue,
and your terms of reference instead asked you broadly to
inquire into a culture and a practice.
Sir, we suggest this task is exceedingly difficult.
Unlike most public inquiries, you cannot make findings
of fact about the particular incidents in question and
then proceed to make consequential recommendations. You
have had to devise or choose your own areas for enquiry
and decide which witnesses to hear from among
a potentially vast number of persons who are qualified
for many different reasons to assist you.
The establishment of a general inquiry into culture,
practices and ethics creates, we suggest, two particular
difficulties. First, it tends to invite an emphasis on
what is wrong with the press to the possible exclusion
of all the good things. It is also worth recalling that
although we have heard from many individuals who have
complaints regarding their treatment by the media, there
are countless individuals and organisations who have
been helped by the press when the authorities have let
The role of the popular press is to speak up for
those who are abused, whether by the State, the rich,
powerful or possibly corrupt. There are numerous cases
in which newspapers have overturned miscarriages of
justice or campaigned for the ordinary people of Britain
on issues ranging from the treatment of Alzheimer
patients to the many failures of our banking system.
The press have exposed oppressive or unfair
treatment. The family of Stephen Lawrence, the victims
of the Omagh bombing, people like Garry McKinnon are all
people the State has in one way or another abandoned and
newspapers have helped, and overall my clients feel that
we have heard too few speaking up for the popular press.
Instead, the vacuum has been filled by people with
axes to grind, prejudices to air, some ideological
scores to settle, and some undoubtedly see this Inquiry
as an overdue opportunity to take the popular press and
its content in hand. But the fact is that about
18.5 million people read the mid-market and red top
papers, and about 4.7 million read the broadsheets.
Sir, you will recall my clients having expressed at
the beginning of your Inquiry a great concern that your
panel of six assessors did not include anyone with
experience of actually working in the popular press.
One of the six is a founder, director and trustee of the
Media Standards Trust, a core participant of module 4,
and also a member of the Hacked Off campaign, which are
both critics of popular journalism, but you were not
given any assessor from the popular press. That's
something we mentioned at the beginning and it's
a concern of my clients that I express again today.
This view was echoed last week by Peter Preston, the
former longstanding editor of the Guardian and the
distinguished press commentator, who said in stark terms
that the middle market and the red tops were not
represented on the panel of assessors.
Sir, the Inquiry has received evidence from various
academic witnesses about the importance of journalism in
the public interest, but it is important, we suggest, to
understand that in order to produce public interest
journalism, you need to have journalism that interests
There are millions who want to know from their
newspapers a little more about the lives of sportsmen,
actors and other celebrities whom they admire and may
even see as role models. It is important that there is
not a groundswell of elitism, where the minority dictate
what the majority can read.
As Lord Judge recently commented, we need a press
which responds to the demands of everyone who buy
newspapers, and of course it is part of the exercise of
our constitutional freedoms that we should be able to
choose for ourselves the newspapers we buy and read. We
are not cut from identical cloth.
Or, as Peter Preston has written:
"No inquiry can or should turn off the demand for
a mixed diet of news, gossip and entertainment for the
mixed bag of democratic voters. Freedom of the press
includes the freedom to publish things that some people,
maybe refined, discriminating people, don't relish.
Let's not forget towards the close that our press is
there for everyone. Something too narrow, too
restrictive, won't endure because it will leave the rest
of Britain out. And something clearly elitest won't
Sir, the rules to which your Inquiry has been held
have been dictated of course by the terms of the
Inquiries Act 2005. We suggest it is a matter of
concern that those rules provide no right for core
participants to cross-examine witnesses who make serious
allegations against them, and we would suggest for the
future that it is important that such allegations, if
serious, should be tested at the time by the party whom
they affect. That obviously would require an amendment
to the statute and the rules.
The Inquiry will no doubt consider carefully what
weight to accord to evidence given anonymously or to
witnesses who have made allegations based on supposition
or hearsay. Many of those who have attacked the Mail
titles have done so because they object to the paper's
political or ideological views, which are often robustly
articulated. For example, the Daily Mail was the most
robust critic of the Blair/Campbell regime and
Mr Blair's claim of a vendetta needs to be viewed
against this background.
In fact, of the 30 letters of complaint referred to
by Mr Blair, only two resulted in legal proceedings, one
was withdrawn and the other which did result in an
apology and damages was based on a well-sourced or
apparently well-sourced report published by the
My clients have nothing but sympathy for those whose
lives have been hurt by errors made by the press, but it
must be recognised at the same time that news is
reported at great speed against hard deadlines and
thousands of stories are published every week without
complaint. It is sadly inevitable that human errors
will be made, and no regulatory system will ever change
What matters is that a regulatory system should do
what it can to prevent mistakes happening and in
conjunction with the law provide access to meaningful
forms of redress to those affected.
The Inquiry will no doubt ask itself if heavy
emphasis should be placed on the historic use of private
investigators by the press, especially as the current
Information Commissioner said in his evidence to the
Inquiry that he has seen no evidence of press
involvement in data protection offences since 2003.
In stark contrast, the House of Commons Home Affairs
Select Committee in a report published this month found
that there are still as many as 10,000 individuals
working as private investigators for law firms, major
corporations, local authorities and Government
More to the point, the Select Committee accepted
that those investigators can perform a useful service
providing they comply with the law, and suggested that
the Government consider a licensing system that would
give private investigators access to some prescribed
databases, such as the DVLA.
The future of press regulation is the fundamental
issue, clearly, for your Inquiry. My clients' position
is that they accept the need for a new, strengthened
regulatory system, but it must be self-regulation.
They support the proposals put forward by Lord Black
on behalf of the industry. Those proposals would, for
the first time, set up a standards and compliance arm
with powers to investigate allegations of systematic
wrongdoing, it would enforce good practice and would
have the power to impose fines for breaches of the
standards of up to £1 million.
Under the proposed industry scheme, there would be
an arbitral arm as well as a standards and compliance
arm. The arbitral arm would assist members of the
public to pursue complaints against the press in an
effective, proportionate and economical way.
The Inquiry has asked Lord Black and Lord Hunt why
the scheme should not be statutory, suggesting that
there can be no real objection to some form of statutory
underpinning, and implying that there cannot now be
proper regulation of the press unless there is, at the
very least, some statutory backdrop.
We suggest that there is a very clear and principled
objection to statutory underpinning, which is that it
let's the politicians in. It may be perfectly
appropriate to impose statutory controls on lawyers,
dentists, chiropodists and the like, but none of those
people, sir, seek to hold politicians and public
servants to account.
The press cannot hold politicians to account if it
is simultaneously to be held to account itself by those
very same politicians, or by those who depend on those
politicians for their appointment and funding.
It is not fanciful to suppose that the light touch
statutory control today could become heavy-handed
tomorrow or the day after.
The Inquiry has heard, for example, from
Lord Patten, chairman of the BBC Trust, as to how
politicians throw their weight around with the BBC, even
though it is a supposedly independent organisation,
protected by charter and not statute.
Politicians recognise this problem. The report of
the Joint Committee on Privacy and Injunctions, chaired
by Mr John Whittingdale and published in March this
year, made it clear. We do not recommend statutory
backing for the new regulator, said the report. The
report also warned against the dangers of trying to
define "privacy" and "public interest" by statute. It
"There is danger that any list will be treated as
exhaustive, and so fail to cover information that should
be respected as private. Any list that purports to be
exhaustive will imply that anything not on the list
should not be covered. We do not recommend a statutory
definition of 'public interest', as the decision where
the public interest lies is a matter of judgment and is
best taken by the courts in privacy cases."
And even if some were tempted to go along the
statutory road, Lord Wakeham's submission makes it clear
why the legislative route is not, we respectfully
suggest, one to take. He wrote:
"In my judgment, even this slenderest of statutes
could be amended out of all recognition in a way which
seriously eroded free speech. The battle to get it
through would be extremely divisive. Just as many
Parliamentarians hate the press, a number, possibly
smaller, are equally passionate about press freedom, and
wholly opposed to any Government involvement in this
area. The battle would be so acrimonious no government
in my view would willingly push ahead."
By the same token, the Inquiry has heard proposals
from Mr Ed Richards of Ofcom and others, that editors
should be removed from the new complaints body and
possibly from the new Code Committee.
Sir, for any regulatory system to work, we would
respectfully suggest that editors have to buy into it,
not only in the letter but in the spirit, and there is
a real danger if editors are forbidden to participate in
the new system, they will seek simply to challenge it at
every opportunity, which is clearly undesirable.
The Irish Press Council, which is held up by some as
an example, actually ducks these questions by making
membership voluntary. Not only does the government vet
the appointment of its chairman, but it fails to answer
what has been termed in this Inquiry "the Desmond
question", which is one of the key tasks the Inquiry has
set the industry.
Then there is the Internet: a global industry
populated by bloggers and Tweeters who follow standards,
as I have said, not set here but in California.
The Media Standards Trust, supported by various
professors, seeks to confront this problem by suggesting
that the right to freedom of expression is relative, and
because the national press possess, to quote
Professor Cathcart of Hacked Off, a megaphone, they
should be subject to compulsory, statute-based
regulation, whereas small publishers should not.
We suggest that that betrays a lack of understanding
as to how news gathering works. All news operations
borrow and develop information and ideas from other
sources, whether blogs or Tweets or local newspapers.
And so is the Media Standards Trust suggesting,
therefore, that a story published, for example, by
Guido Fawkes or the New Statesman could not be
reproduced or even referred to in the Daily Mail or any
other national newspaper?
We suggest the solution is not statutory. It is, we
advocate, the system proposed by Lord Black and
Lord Hunt. It has the support of the press. We believe
it should and will have the support of the public, and
we must now look to the future.
We would respectfully suggest to you it would be
a fitting achievement for this Inquiry if the result of
its work leads to a new and stronger system of press
regulation which clearly is fit for the 21st century.
LORD JUSTICE LEVESON
Thank you, Mr Caplan.
I take very much on board what you've said about the
First Amendment, but should I not be able to draw
a conclusion that the way in which regulation operates
in this country at the moment does not necessarily, or
indeed particularly at all, reduce its commercial
effectiveness from the fact that the MailOnline has such
an enormous readership in the United States, where it is
commercially apparently successful, so I've been told?
Yes, it is.
Sir, our point in saying what we have done about the
major players in the industry is that the large number
of readers of the British press are, as we have said,
migrating online to the online publications. One of the
issues you have to decide, obviously, in this case is
what is meant by "the press"? How are the press going
to compete in this new world of electronic media? That
was not something Sir David Calcutt had to worry about
at all --
LORD JUSTICE LEVESON
Oh no, I appreciate that.
It is a very real and difficult problem --
LORD JUSTICE LEVESON
I appreciate that. I think I called
it an "elephant" very early on in the Inquiry.
LORD JUSTICE LEVESON
But I'm just interested by the fact
that Mr Clarke made it clear that the MailOnline does
indeed follow the requirements of the Editors' Code and
is subject to the PCC, and yet is indeed extremely
successful in America, where there is no such
regulation. So therefore the question is: does that not
lead one to the conclusion that the problem is not
necessarily sensible regulation?
We're looking to the future. And we're looking
to the recommendations you're going to make.
Our point is that it is absolutely essential to have
regard to the whole marketplace, and to include not just
regulations for the British press, but to have regard to
the fact that Internet publishers really are going to be
the principal competitors of the British press, and are
at the moment.
LORD JUSTICE LEVESON
I understand. Thank you. Thank you
Right, Mr Rusbridger, you'll soon be taking silk.
Closing submissions by MR RUSBRIDGER
MR RUSBRIDGER: Thank you for this opportunity to address
Public Inquiries in Britain are comparatively rare.
They're called for at moments of crisis when something's
gone drastically wrong, when normal processes have
failed, where the truth is hidden, where wider issues of
national importance are engaged.
At the height of the Guardian's coverage of the
phone hacking scandal at the News of the World, we
didn't believe there could or would ever be a public
inquiry. We had seen other news organisations fight shy
of what was being revealed. The police had sat on their
hands. Most politicians didn't want to know and the
industry regulator had turned a blind eye.
I had been an editor for more than 15 years at this
point. We had written aggressive exposes about lying
Cabinet Ministers, corrupt governments, arms companies,
security services, organised crime, drug dealers,
religious cults and powerful multinational corporations.
This was the first story where it seemed that we had
strayed into an area that felt in some way forbidden.
We could carry on writing it. No one would stop us.
But we were on our own.
There was talk of how a public inquiry would be the
only way of getting at the truth of what had happened
and why. But for obvious reasons, no one believed an
inquiry was remotely possible. The Murdoch influence,
power, money, dominance and reputation was such that it
seemed to confer a form of immunity from scrutiny. The
courage of a small number of victims of intrusion in
launching civil suits was a critical factor in prising
open the evidence. It took the intervention of
a foreign newspaper -- the New York Times -- to make the
story more difficult to avoid.
In time, it became impossible for the police to
continue to ignore the revelations in court and in the
media, where, by now, other news organisations felt
emboldened. And finally, the Guardian's long
investigation into the story brought into public light
one of the most repugnant instance of phone hacking --
the phone of a murdered teenager.
And so the impossible did happen: a public inquiry.
The hearings which began last year have been almost
cinematic in their scope. They started with a close
focus on the victims and gradually panned back. We have
seen just a handful of the potential thousands of people
who were subjected to systemic intrusion, and heard of
the effect such behaviour has on individuals and
families, often at moments of great trauma or personal
The gaze of the Inquiry then panned back to look at
the culture of newsrooms and the behaviour of some
individuals who ran those teams of journalists together
with their outsourced collaborators. Inevitably,
because of the risk of prejudicing any criminal
proceedings, this remains an area where it feels we
still know little.
As the focus has pulled back, we have seen the
police drawn into the frame and learned much about the
network of close media/police relationships and
something of the reasons why senior officers were so
reluctant to investigate these matters.
We have heard how the Press Complaints Commission,
supposedly a regulator, was no such thing. It did not
have the means, the appetite or the independence to do
Finally, there have been the politicians, where the
story becomes more complex. A few backbench MPs were
determined -- albeit belatedly -- to get at the truth.
Parliamentary committees are limited in the weapons at
their disposal, and initially at least, they made
It is clear that they were lied to. At least one
executive from News International simply refused to
appear, showing further contempt for Parliament. And we
have heard how some MPs felt threatened and were acutely
aware of the possible consequences of asking too many
In three years of involvement with this story, both
Nick Davies and I encountered numerous examples of
people who have lived, and in some cases still live, in
some fear of one particular newspaper company, including
those who worked for it.
That fear was rational. As that Inquiry has begun
to uncover -- although more will doubtless appear and
emerge in criminal trials and in part 2 of the
Inquiry -- the company, its executives and some of its
journalists were capable of behaving in a quite ruthless
way, employing any means, legal or criminal, to attack
or monitor its targets or critics.
The extent to which the aggression was guided or was
simply the result of a lack of any meaningful corporate
governance is still unknown. Many people in different
walks of life believed it was a good thing to keep in
with this company and a bad thing to fall out with it.
That, it is now beyond doubt, was a reasonable belief.
That belief suited News Corporation, which had
ambitious plans further to increase its immense and
unique dominance of media in this country.
We have heard how the former editor of the News of
the World -- in disregard of all normal protocols --
ended up, relatively unvetted, at the heart of Downing
Street. How the BSkyB bid was launched within weeks of
David Cameron becoming Prime Minister. And this Inquiry
has laid bare the literally thousands of covert
contacts -- texts, calls, meetings, drinks, meals,
emails -- that oiled the progress of the bid.
Had that deal gone through, it would have had
immense implications for Britain. I do not believe the
Inquiry has fully explored the likely consequences for
other news organisations and for democracy itself if
News Corp had succeeded in its plan to create a really
giant media company, which, despite its public
protestations, was (we have learned in this Inquiry)
exactly its aim.
That bid was finally halted on the eve of a vote by
Parliament. But there remains nothing in law to prevent
such a thing from happening again. While the Inquiry
has not had the time fully to explore the nature of
competition and plurality law, it is in our view
essential that its final report says something strong
about the effects of dominant media power on culture,
practice and ethics, and the resultant need for
a meaningful and enforceable plurality framework.
So we have welcomed the Leveson Inquiry. It has
shone a sometimes uncomfortable light on all of us in
the press, but also on the police, politics and
regulation. The press, especially, should not complain
about transparency. There has been much welcome
discussion, both by the press and by others, and a
movement towards finding a reformed system of regulation
which would command more public confidence.
Of course there remain many anxieties about the
nature and scope of your eventual recommendations, and
no clear consensus about some areas. Some news
organisations, for example, see encroaching privacy laws
and restrictions as the biggest threat to press freedom.
Others are more concerned about the chilling effect of
our libel laws on serious investigative and public
interest reporting. Some see press cards as
a sufficient incentive to join a regulatory system.
Others find the idea protectionist and possibly
unworkable in an age of social publishing. Many
regional and magazine publishers feel the old system was
perfectly adequate. So it is probable that there can be
no perfect consensus about the shape regulation should
That's healthy. It would be positively odd if
a media which boasts of its plurality and variety
appeared in front of you speaking with one voice on
every single issue.
So here, very briefly, are some of our own thoughts
at the end of this long and exhaustive Inquiry, which we
expand on in our written closing submission.
Firstly, state licensing of the press or individual
journalists was wrong when it was abolished in this
country more than 300 years ago, and few people could
want to see it reintroduced now, even it were legal and
workable. So, as you yourself have made plain, anything
that looks like direct statutory or political control is
But a voluntary system of regulation would hardly
command public opinion and respect if one or more major
publishers decided to boycott the system. The Inquiry
has heard many suggestions for carrots and sticks so
that the benefits of being within the fold of regulation
and the disadvantages of being out would be
overwhelming, and we hope that you will give serious
consideration in particular to the notion that
participation in a system of independent regulation
would bring considerable cost and speed advantages to
both sides in cases of defamation and privacy.
Secondly, our libel laws are, it's widely agreed,
bad for both claimants and defendants and are a real
chill on public interest journalism. No country has
a perfect solution, but few would dispute that
America -- with its First Amendment and so-called
Sullivan doctrine -- makes it easier for serious
journalism to flourish, while, it should be noted,
escaping the worst of the abuses and excesses that have
been revealed by this Inquiry.
We propose that a new regulator should have the
means to deal with libel and privacy claims through an
arbitral system and that this should be a pre-condition
of fighting any claims through the courts.
Thirdly, we acknowledge that creating such an
arbitral system may have to involve some form of
statutory basis. So, despite our fears relating to
statutory licensing, we do not set ourselves against
specific and narrowly defined uses of the law to create
a system that may help public interest journalism as
well as inspire public confidence. This, despite
sharing the anxieties of colleagues who have voiced the
thin end of the wedge argument about proposing the use
of law in relation to regulation.
Four. It is doubtful whether the Leveson Inquiry
would have existed were it not for the willingness of
people to tell the Guardian things that they were not
authorised to tell us.
The Guardian does not pay public officials for
unauthorised information. We don't pay them for any
kind of information. But we do seek it out and consider
it the lifeblood of public interest journalism. We have
watched with dismay at some attempts to persecute, if
not actually prosecute, public officials who are not
corrupt, have taken no money and may have been acting
out of perfectly admirable motives in passing on
With great respect to the present
Metropolitan Police Commissioner, who has presided over
determined if belated attempts to get to the bottom of
phone and computer hacking, and Dame Elizabeth Filkin,
we have serious concerns that people are not
sufficiently recognising the difference between
information which is unauthorised and that which is
corrupt. If the Inquiry is to truly encourage the best
practice as well as rooting out the worst, it must, we
believe, recognise that distinction.
Fifth, readers' editors. We hope that you will
commend the truest form of self-regulation embodied by
the idea of a fully independent readers' editor or
ombudsman. At the Guardian and the Observer, any reader
can bypass the editor and complain directly to an
independent figure whose only interest is in
establishing the accuracy and truth of our journalism.
In our view, it's the best way to transform newsroom
culture on larger newspapers, and we think that large
regional newspaper groups could appoint a readers'
editor to serve several smaller newspapers. The system
is commonplace in the US and elsewhere and there's no
reason why it wouldn't work here as well.
Sixth, on regulation, the Guardian and Observer
belonged to the PCC, despite our reservations, which we
voiced at the time, about its flaws, which have been
widely acknowledged. We remained within the system,
despite the egregious November 2009 report on phone
hacking, and we remain committed to independent
regulation and would be part of the proposed reformed
system of regulation proposed by Lords Hunt and Black.
It is, in many ways, a great improvement on the PCC.
I said at an earlier occasion: before we scrap voluntary
self-regulation, perhaps we should try it. Unlike its
predecessor, this does constitute a form of regulation
and it is much more independent.
That does not mean that we agree with all aspect was
the proposed system. We have, for instance,
reservations about the prominence of serving editors,
the role of the financing bodies and the selection
methods for the press representatives. As in Ireland,
it might be refreshing to involve journalists who are
not editors, possibly even members of the NUJ, in the
Code Committee. But we recognise the progress that has
been made in seeking to find a consensus for reform.
On privacy, we, along with other broadsheet editors,
have given evidence to this and other inquiries to the
effect that we have ourselves not yet been unduly
affected by the steps the courts have taken to recognise
the balance between Articles 8 and 10 of the Human
Rights Act. The language of the PCC Code of Conduct,
which virtually all editors endorse, exactly mirrors
that of Article 8, and the courts are obliged to take
note of any professional code.
But there remains concern among some colleagues that
the courts are not the best place to resolve such
issues. The challenge for a future regulator is,
therefore, whether it can offer sufficient measures and
redress so that the courts are in future less engaged in
developing a law of privacy.
For that to be true, the regulator must decide three
things: firstly, will it follow the general
jurisprudence of the courts or seek to develop its own?
If the gap between those is too great, claimants and
their lawyers will simply ignore the regulator, as many
have tended to do in the past. Secondly, will it offer
a hotline service, as the PCC did, to potential victims
of intrusion in advance of publication? And thirdly,
will it offer meaningful redress if a publication is
found to have intruded on privacy without a public
We suggest that the new regulator should, as before,
offer a hotline service for the public, and we envisage
that the regulator would, if contacted, approach an
editor in advance of publication to check whether he or
she would justify any intrusion on the basis of the
public interest clause of the code. If so, the
regulator would not intervene, just as in libel there
can be no injunctive relief where an editor says he or
she will offer a defence of justification. If,
subsequently, the editor didn't argue the public
interest or if the regulator found there was no such
defence, that could be reflected in the redress.
Eight. More specifically on prior notification, we
believe that several of the recommendations of the Joint
Committee on Privacy and Injunctions deserve serious
consideration. In particular, we endorse paragraphs 127
to 129, 134, 150 and 209, which we have attached for
ease of reference. These paragraphs reject a statutory
requirement to pre-notify, though the committee does
suggest real consequence for editors who do not have
a robust basis for failing to notify, including
exemplary damages. It also endorses an arbitral arm for
Nine, on prior consultation. We feel quite strongly
that prior consultation by editors on the public
interest would work counter to press freedom, although
we recognise that those who favour it have the opposite
intent. We do accept that gross invasions of privacy
create damage that cannot be undone. That's why,
through the combination of the code and the law, we must
raise the bar far higher for invasions of this kind.
Newspapers ought to be able to demonstrate that they had
taken into account what we refer to as the Omand
factors, including considerations of harm, public good,
proportionality, authorisation and fishing expeditions.
Editors should, in our view, be able to make their own
decisions and be responsible for them.
0. We welcome the fact that the DPP has, at the
suggestion of this Inquiry, clarified the guidelines for
prosecutorial discretion where a journalist or source
may be facing the possibility of criminal charges. More
broadly, we believe that it makes sense to achieve far
greater consistency for public interest defences in the
law. If an offence deserves a public interest defence,
it should have one.
1. While the Inquiry has devoted much time and
care to the future shape of regulation of content, it
has not, as I said, had the opportunity to take much
evidence on the issue of plurality. But it seems to us
highly likely, firstly, that many of the abuses
uncovered by the Inquiry would never have happened had
News Corp not been allowed to achieve such a remarkable
domination of the media in the UK. Secondly, plurality
of the media was a pre-condition of the scandal being
There are, in other words, significant dangers to
democracy in allowing media organisations to become too
dominant, not least because they may, in a troubled
economic climate for news, stifle or destroy the ability
of others to hold them to account.
Let me make it clear this is not just about
News Corporation. It is likely there will be movement
towards greater consolidation in our news media, and
that proprietorial dominance will become more
troublesome, as it currently threatens to do in, for
instance, Australia. If we do not now learn the lessons
from News Corp, we will fail to safeguard against the
need for future inquiries.
2. You have previously noted in this Inquiry the
difference between the media and other sections in
relation to competition and plurality. Who owns the
news is different to who makes baked beans. News Corp
is a company that famously uses its might to outbid and
even destroy the competition. This is well-trodden
ground for anyone who follows their dominance in other
fields. There have been well-documented allegations of
crossing lines of legality, let alone ethics:
settlements in the United States over unfair trade
practices and corporate espionage; in the UK, claims
that a News Corp subsidiary company used a computer
hacker to sabotage Sky TV's biggest rival.
Such tactics in other wings of the business are not
part of the remit of this Inquiry, even if they do
illustrate salient truths about the culture, practices
and ethics of that company. The problem with the news
business, as we've seen, is the very real consequences
for democracy: deliberately selling the Times at a loss,
according to the OFT; hidden proposals to integrate news
in the proposed BSkyB merger in 2010, according to the
private memo of the Culture Secretary; most recently and
cynically, in March 2012, reportedly launching a car
trading site to target the Guardian Media Group.
These moves, some dramatic, others the mere flick of
appear giant's tail, have consequences of the kind we've
seen these past few months. That is why Parliament made
plurality the test, not competition. If you, like
Parliament, think a plurality of voices is needed in
news and that the best challenge to bad culture is more
scrutiny, then this is a question which, we submit, you
There are, of course, other powerful media
organisations in the UK, including the BBC. In our
submission on plurality we set out a number of obvious
questions which should help any relevant authority to
judge the extent to which size or market dominance would
be likely to pose a wider threat to the democratic
installations and accountability.
Sir, in closing, you have repeatedly said you don't
need any lectures on the importance of press freedom, so
you're not going to get one from me. You've also said
that you understand the extraordinary challenging times
that newspapers face as they make this transition from
paper and ink to print and digital. I won't labour that
You have listened to numerous voices, extracted and
examined daunting volumes of evidence. Mr Jay and his
team have skillfully tested that material. You have
approached the issues with remarkable openness and
patience and shown all witnesses great courtesy. The
Inquiry process itself, through shining a light in dark
places, has mirrored the purpose and product of public
interest journalism at its best.
LORD JUSTICE LEVESON
Thank you very much indeed,
I'm the last man, I think, sir. I think I shall
be about 40 minutes, so I'm in your hands as to
LORD JUSTICE LEVESON
Well, you can decide what you want to
do, Mr Rhodri Davies. You can start and we'll come
back, or we could start a little bit earlier this
afternoon. I'm entirely in your hands.
Let me enquire.
LORD JUSTICE LEVESON
The vote is to start a little earlier this
afternoon. I apologise if that disturbs people's
LORD JUSTICE LEVESON
Right. We'll rise now and resume at
1.50 pm. Thank you very much indeed.
(The luncheon adjournment)